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Separating in a marriage or civil partnership

This advice applies to Scotland

Civil partnership

Separating informally

If you and your partner agree, you can make arrangements about children, money, housing and other property without going to court. This is called separating informally. However, any informal arrangement made when you separate may affect future decisions if you do go to court. If there are children the Child Maintenance Service may get involved.

If you do decide later to apply for dissolution of your civil partnership and the court is involved it can change an arrangement made informally by a couple. This is only likely to happen if it considers the arrangement to be unreasonable or, in the case of a child, it thinks the arrangement is not in the child's best interests.

It is advisable when you separate to inform some or all of the people listed under heading Who to inform when your civil partnership ends.

Separating with a separation agreement

A separation agreement is a written agreement between a couple who intend to stop living together. It sets out how they wish to sort out financial arrangements, property and arrangements for the children. When your agreement includes financial matters it should be made with the help of a solicitor. Examples of what you might want to include in an agreement are:

  • to live separately. This stops both partners from having to live together
  • not to molest, annoy or disturb the other partner
  • to provide financial support (maintenance) for the other partner. A separation agreement would normally say that maintenance will stop if the partner starts living together with a different partner. Any agreement not to apply to court in the future for financial support does not count legally
  • to provide financial support (maintenance) for any children of the relationship. Any agreement not to apply to a court or to the Child Maintenance Service in the future is not valid legally
  • who the children should live and have contact with.

The advantage of a written agreement is that it is easier to make sure you both understand what has been agreed. It also means that either partner can go to court to change the agreement in the future. The court may only change what it considers to be unfair or unreasonable. It is advisable to consult a solicitor when drawing up a separation agreement, but you should work out in advance the general areas you want to cover.

If you can reduce the time it takes to draw up the agreement with the solicitor it could keep legal costs down. You may get help with your legal costs.

For more information about help with legal costs, see Help with legal costs.

Judicial separation

A judicial separation is a court order which stops the obligation of the partners of a civil partnership having to live together. It is quite rare to get a judicial separation, but it can be used by couples who have a moral or religious objection to dissolution of a civil partnership. The order does not end the civil partnership so neither partner is free to enter into a civil partnership again (or marry). The order does not change each partner's rights to stay in the family home. If you want your partner to leave, after a judicial separation, and s/he is not willing to, you have to go to court for an exclusion order.

Marriage 

Separating informally

If you and your partner are married, you can separate by an informal arrangement. You will need to inform some or all of the people listed under heading Who to inform when your marriage ends. You may have a legal responsibility to tell:

  • your benefits office if you are getting a welfare benefit such as Jobseeker's Allowance, Income-related Employment and Support Allowance or Income Support
  • HM Revenue and Customs if you are getting tax credits
  • your local council if you pay council tax or you get Housing Benefit or Council Tax Reduction.

If you and your partner agree, you can make arrangements about children, money, housing and other property without going to court. However, any informal arrangement made when you separate may affect future decisions if you do go to court. If there are children the Child Maintenance Service may get involved (see under heading Child Maintenance Service).

If you do decide later to divorce and the court is involved it can change an arrangement made informally by a couple that it considers to be unreasonable or, in the case of a child, if it thinks the arrangement is not in the child's best interests.

Separating with a separation agreement

A separation agreement is a written agreement between a couple who intend to stop living together. It sets out how they wish to sort out financial arrangements, property and arrangements for the children. When your agreement includes financial matters it should be made with the help of a solicitor. Examples of what you might want to include in an agreement are:

  • to live separately. This stops both partners from having to live together
  • not to molest, annoy or disturb the other partner
  • to provide financial support (maintenance) for the other partner. A separation agreement would normally say that maintenance will stop if the partner starts living together with a different partner. Any agreement not to apply to court in the future for financial support does not count legally
  • to provide financial support (maintenance) for any children of the relationship. Any agreement not to apply to a court or to the Child Maintenance Service in the future is not valid legally
  • who the children should live and have contact with.

The advantage of a written agreement is that it is easier to make sure you both understand what has been agreed. It also means that either partner can go to court to change the agreement in the future. The court may only change what it considers to be unfair or unreasonable. It is advisable to consult a solicitor when drawing up a separation agreement, but you should work out in advance the general areas you want to cover as listed above - where to get advice.

If you can reduce the time it takes to draw up the agreement with the solicitor it could keep legal costs down. You may get help with your legal costs.

For more information about help with legal costs, see Help with legal costs.

Help to reach agreements out of court

Consensus 

Consensus is a group of experienced collaborative family lawyers in Scotland. Collaborative practice is an option for separating couples, who are prepared to work together with their respective solicitors, to reach solutions and settle disputes without going to court. More information about the collaborative law process and how to find a practitioner in Scotland is available on the Consensus website.

Comprehensive Accredited Lawyer Mediation (CALM) 

CALM offers mediation on all aspects of relationship breakdown. The mediators are all qualified solicitors who specialise in family law. Fees are set at the normal hourly rate for a solicitor but, if you qualify for help with legal costs, you may also qualify to have the fees of a CALM mediator paid. 

Comprehensive Accredited Lawyer Mediation (CALM) (Scotland)
Nicos Scholarios, CALM Secretary
MSM Solicitors
51 Moss Street
Paisley
PA1 1DR

Tel: 0141 889 6244
Fax: 0141 887 0964
Email: ns@msmlaw.co.uk
Website: www.calmscotland.co.uk

Scottish Mediation 

Help to reach agreements out of court. There might be a fee for this service. 

Scottish Mediation
18 York Place
Edinburgh
EH1 3EP

Tel: 0131 556 1221
Helpline: 0131 556 8118
Email: admin@scottishmediation.org.uk
Website: www.scottishmediation.org.uk

Who to inform when you split up

If you and your partner are separating, you may need to inform your:

  • landlord or housing office
  • housing benefit office
  • council tax office
  • mortgage lender
  • gas, electricity and telephone suppliers
  • benefits office (usually the Job Centre)
  • tax office, particularly if you're getting tax credits
  • current school and future school if you have children and they are moving
  • bank, building society or credit union if you have a joint account or credit card. You might want to freeze the account to prevent your partner withdrawing some or all of the money
  • hire purchase or credit companies
  • insurance companies, particularly if you have joint policies
  • post office, if you want mail redirected
  • doctor, dentist and child health clinic.

If you plan to start using your birth surname or another name, you should tell them about this too. 

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