Changing Your Will After Divorce

Once again may I repeat myself.“Do you have a Will? YOU SHOULD HAVE. It is an important document as it is your way of making sure your wishes are known and your property and assets are distributed after your death the way you want them to be.”

However, if you have a Will and you divorce or separate from your partner you need to remember to change your Will, otherwise on your death your ex-partner could receive everything you listed in your old Will.

When amending your Will you need to look at all your assets, everything you own. Certainly after splitting up from a partner the likelihood is that you will have far fewer assets than you had before – you might even feel that you have very little to leave to anybody. Nonetheless if you have children you will want to provide for them after your death so it is key that you see a solicitor to make the appropriate revisions needed.

If you have bought a flat or house you can ensure it goes to your children (if they are under 16 it can be held in trust for them until they are older).You will want to be certain that your ex partner cannot touch your heritable property.

The chances are that under your old Will your ex would have been appointed executor of your estate. Obviously you will need to alter that also.

And remember that your assets can include heirlooms, family photographs and memorabilia which are things you may want your children to have by which they can remember you.

You may find a new partner and move in with or marry them which is another huge change in your circumstances and one that may again require a new Will.  Your new partner may already have children and you may go on to have children together so there is a lot to take into consideration.

The sheer act of changing your Will is an admission that you have moved on. I have the experience to advise on the best possible way to deal with your new situation.  If I can help please call Lauren Hill on 0141 552 3422 or contact me by email at lnh@mitchells-roberton.co.uk

How quickly can I get divorced?

Divorce can be extremely distressing yet surprisingly a question often asked is how quickly can a divorce be obtained. Of course the answer is: it depends.

For a divorce to be granted there has to be an irretrievable breakdown of the marriage with no prospect of a reconciliation. If you cannot demonstrate this then you cannot get divorced.

The irretrievable breakdown of marriage can be established if one of the following is true:

  1. Since the date of the marriage, your spouse has committed adultery and you thereafter ceased to cohabit together as husband and wife (this is and will continue to apply exclusively to heterosexual relationships even after same sex marriage is introduced).
  2. Since the date of the marriage, your spouse has behaved in such a way that you cannot reasonably be expected to cohabit with them.
  3. You have not cohabitated with your spouse for a period of one year and your spouse consents to the granting of the divorce.
  4. There has been no cohabitation for a period of two years.

A Simplified Divorce is the fastest way to obtain a divorce and is essentially a form filling exercise. You must not have cohabited with your spouse for one year and have your spouse’s consent or been separated for at least two years. This simplified procedure can only be used if there are no children of the marriage under the age of 16 and no financial issues to resolve. The relevant form can be downloaded from the court website and is completed by the individual raising the action who must then sign an affidavit at the end of the form stating that everything in the form is true. This affidavit can be sworn before a notary public (most often a solicitor), a Justice of the Peace or a Commissioner of Oaths. The form is then submitted to the court along with the appropriate fee (currently £107). A divorce order is usually granted within 4-6 weeks of lodging the relevant paperwork with the court.

If there are financial issues still to be agreed upon or there are children of the marriage under the age of 16 you must use the Ordinary Procedure, which will require the assistance of a solicitor. A list of the parties’ assets requires to be lodged with the initial paperwork when a financial order is sought. If the action is not defended by your spouse a court order may be passed within approximately 6-7 weeks from raising the action.

If the action is defended because there are young children and custody and contact are disputed, or a financial order is requested or indeed the allegation of adultery or unreasonable behaviour is denied then it is extremely difficult to state with any certainty how long proceedings will take.

If you have any queries regarding divorce please contact Fiona Wayman on fhw@mitchells-roberton.co.uk or phone 0141 552 3422 to talk to her.

All in the Family

If I asked my mother to close her eyes and think of the word “family” she would more than likely  describe to me a married mum and dad, two children, a dog and a house. If I asked my son  to do the same, he would no doubt conjure up a picture of divorced parents, one sister, three half sisters, a step mother, two step sisters , a step brother and of course a dog but perhaps no particular house. That is his reality. There is little doubt that the face of the modern family is changing rapidly and family law is altering to keep abreast of this new social phenomena.

Divorce is no longer an unusual occurrence and although it is reported that in 2011 divorces in Scotland fell to their lowest rate for 30 years, there are still on average 11,500 divorces a year. Even with divorce no longer carrying any social stigma, it still has a resounding and frequently troublesome effect on the family unit as both childcare arrangements and finances require to be agreed. It does not therefore come as much of a surprise that our family law department often assist our clients to prepare for “the worst case scenario” by drafting Pre Nuptial Agreements. These agreements can be extremely useful if a marriage were to end and do allow individuals to have some control over their destinies. Although it is harder to make childcare arrangements in advance, financial arrangements certainly can be determined.

Interestingly enough I recently was at a dinner party and out of the ten diners there I was the only one who had only been married once .Because people are remarrying step parents are much more common than they were, even ten years ago.  Step parents have no automatic parental rights and responsibilities for their step children although they are expected to “safeguard the child’s health, development and welfare”. A step parent, however, can apply to the court to obtain parental rights and responsibilities or adopt the step child. Again our family law department can help.

Talking of adoption, this area of law has also seen change in recent years. The Adoption and Children (Scotland) Act 2007, in force from 2009, allows unmarried couples, including gay couples to adopt jointly.  The Act also introduces “permanence orders”. These orders can be granted by court to secure a child’s long term future with a carer and, although they are a measure short of adoption, they do provide children with more security in relation to their care arrangements.  Our firm can guide you through the adoption process if needed.

We have been marching through very difficult economic conditions over the past number of years, and much more now than ever before grandparents are playing an increasingly valued role in the modern family unit.  Most mothers return to work after having children and grandparents are stepping up at an unprecedented level to help with child care. Grandparents do not have any automatic parental rights and responsibilities for their grandchildren but can apply to the court to have such rights and responsibilities granted. For such an order to be awarded the court would have to be persuaded it was in the child’s best interests to do so.

At the end of 2005 we saw the introduction of Civil Partnership for same sex couples and in July 2012 the Scottish Government announced that they are to legislate to allow same sex marriage, although religious bodies who consider that contrary to their faith will not be compelled to conduct them.  I wonder what picture the word “family” will produce in the mind’s eye of future generations.