By bypassing tailored legal advice to keep things ‘simple’, couples can take themselves into complex territory
When it comes to divorce, it’s generally helpful to have ‘kitchen table chats’ – i.e. where spouses constructively discuss arrangements for family and finances before having formal conversations with lawyers.
However, there’s a big difference between having these chats and going the full DIY approach to drafting your own divorce. From property to parenting, agreements that seem straightforward at the time can turn messy or expensive when people go it alone.
1. Property:
Transferring your marital home and mortgage to one spouse may not be as easy as it seems, with the pitfalls including difficulties with the mortgage or slip-ups in the conveyancing processes for transfer of title. In addition, if the transfer cannot take place, one or both spouses may later regret the lack of a properly drawn-up fallback clause.
2. Financial settlements:
It’s complex to determine what is - and isn’t – matrimonial property. We commonly see spouses in DIY divorces offering much more than they need to, or waiving their share of assets they’re entitled to. Even if amicable at the time, these ‘mistakes’ can later contribute to financial hardship or resentment, escalating into disputes or destabilising post-divorce relationships.
3. Pension sharing:
This can be a legal and administrative minefield. Permission from pension providers is needed to do this, and some impose cumbersome rules and administrative costs. A registered Minute of Agreement and divorce decree are required before pension sharing clauses can be implemented, and couples can easily fall foul of rules or time limits.
4. Inheritance:
Under Scotland’s Legal Rights arrangements, a separated spouse can potentially claim a hefty chunk of their wife or husband’s estate if they die before the divorce decree comes through – even if that person changed their Will to avoid this. If you don’t want this to happen, you’d need to talk to a solicitor about waiving these rights in a Minute of Agreement.
5. Children:
Residence and childcare arrangements can seem ideal when you make them, but then prove to be unworkable as children grow up or people’s circumstances change – leading to legal issues or further family breakdown. Practical advice on how to futureproof these arrangements can save stress and expense.
