Minute of agreement/separation agreement in Scotland

We acknowledge that the end of a relationship is a highly emotional and distressing event for separating couples and reaching mutual agreements regarding practical and financial matters during this period can be exceptionally difficult. 

Despite the challenges, we consistently urge our clients to engage in a Minute of Agreement (sometimes also known as a separation agreement), a legally binding contract which records a mutually agreed-upon resolution on all significant financial matters, and residence and contact arrangements for children. Complete Clarity Solicitors and Simplicity Legal are available to assist you across a range of issues which will help you in reaching agreements regarding matters such as child custody, financial arrangements such as transfer of property or sale, and financial support for yourself and/or your children. An amicably reached agreement such as this is typically more cost-effective and far less emotionally taxing compared to engaging in legal disputes in a courtroom.

If you want to divorce or dissolve your civil partnership, a minute of agreement, or separation agreement can be a sensible and cost-effective first step in achieving this aim. 

Is it necessary to attend court proceedings to handle your separation?

Only a court has the authority to grant your official divorce or dissolution of a civil partnership. Nevertheless, numerous families do, and can, resolve childcare and financial matters without resorting to court intervention. This is because they can reach mutually agreeable arrangements such as property and financial arrangements, childcare arrangements and other matters such as spousal maintenance or child aliment. Various strategies can be employed to achieve consensus, particularly when direct agreement with one’s former partner is not possible. These approaches include engaging in negotiations facilitated by legal professionals, attending mediation, or opting for the collaborative process. Our experienced family law team can provide you with additional details and answer all the complex or common questions regarding the various procedures to ensure that they help you reach an informed decision that aligns with your needs.

What occurs when you successfully reach a mutually acceptable agreement?

The contract between separating couples known as a “minute of agreement” or “separation agreement” refers to the legal document drafted by your lawyers that, if signed by both you and your former partner, will effectively address and resolve all the matters that have arisen from your separation. Once it is established, you can proceed with divorce or civil partnership dissolution.

A Minute of Agreement could include various aspects

Theoretically, it can encompass whatever provisions that you and your former partner both deem appropriate.

Children – Generally, when there are children involved, the initial focus is on establishing the living arrangements for the children. This includes determining who will be the primary carer and outlining the contact that another parent will have, whether this be residential (including overnight stays) or non-residential contact. It can include provision for holidays, payment towards extracurricular activities, schooling and so on. The level of detail in these arrangements can vary depending on the specific circumstances, ranging from a general agreement to a more comprehensive plan. Alternatively, parents may decide to share the responsibility of caring for the children.

Additionally, it may include a provision for a parent who does not live with their child to provide financial assistance to the parent who does. This is known as child maintenance. It is important to note that where the note is agreed or specified in an agreement, then this is authorised and regulated by the Client Maintenance Service. 

Continual financial assistance – It may include provisions for one individual to provide continual financial support to the other (referred to as spousal aliment or periodical allowance). The document will specify the payment amount and the duration. Typically, it will include a provision for a review in case there is a material change in the circumstances of either party. 

It can also provide for a capital sum payment which is a one-off payment or payments from one party to another. It can also include a time frame, or trigger point, for when and how that payment is due. 

The Agreement often addresses the allocation or division of assets, considering any outstanding debts. Frequently, the couple will jointly possess a residential property. They will have reached a consensus on whether to sell the house, transfer it to one party, or keep it jointly owned for a certain duration. The Agreement will outline the procedure and timeframe for implementing the agreement, as well as specify the allocation of sale proceeds or the payment of money in exchange for acquiring the other person’s portion of the house.

One party may have agreed to make a payment to the other party to balance the total worth of their property and assets. The Agreement will establish a specific schedule for payments and typically include provisions for charging interest in case of delayed payment. Alternatively, it may confirm that a joint property or asset will be transferred to one party. 

Additional assets may include business holdings, retirement funds, stocks, bank accounts, and investments. Additionally, there may be outstanding debts that need to be taken into account. Transferring assets may have tax ramifications. The Agreement is a customised agreement and your lawyer will ensure that it has all the necessary aspects.

The Agreement concludes by including certain standard clauses. The purpose of these provisions is to indicate that the Agreement is meant to completely resolve the matter and to minimise the likelihood of any future challenges to its terms. The standard terms are established to safeguard your interests.

Is the Minute of Agreement legally binding once it has been signed?

In general, yes. Where a Minute of Agreement is signed by both parties and registered in the Books of Council and Session it is a legally binding document however, there may be exceptions.

Occasionally, when it comes to financial matters, it becomes necessary to adopt enforcement measures to compel a party to fulfil their agreed-upon obligations. Consider the scenario when one individual agrees to remunerate another individual a specific amount of money within a predetermined timeframe. If the individual in question does not fulfil their obligation, the opposing party may be compelled to ensure payment, such as by instructing sheriff officers to deliver a legal notice called a “charge for payment” to the individual who has not made the payment. In the end, it may be necessary to initiate sequestration (bankruptcy) proceedings. There is an expense associated with taking these measures, but fortunately, the solutions are available. Complete Clarity Solicitors and Simplicity Legal can provide you with guidance on the most economically efficient choice for your needs.

Establishing the care arrangements for children of a relationship serves as a valuable indicator of the parents’ preferred arrangement at the time of signing the Agreement. Nevertheless, it should be noted that those arrangements are not immutable. Frequently, particularly in cases where children are at a tender age, the arrangements undergo modifications and change over time. Frequently, in such circumstances, parents will autonomously reach a consensus over the revised arrangement. They may desire to have that included in an additional formal Agreement. Occasionally, however, reaching a consensus is unattainable. If a parent, regardless of the validity of their reasons, declines to permit contact, the other parent may need to seek legal intervention by applying to the Court to get a contact order. The court will assess the optimal outcome for the children when determining whether or not to issue any specific directives.

The provision regarding child support payments in the Agreement is theoretically enforceable for one year after the Agreement is signed. Subsequently, any parent has the option (although it is not obligatory) to request a maintenance assessment from the Child Maintenance Service, which, once established, will override the child support obligations outlined in the Agreement.

Occasionally, the Agreement may include elements that are more idealistic rather than readily enforced. For instance, consider a scenario where a couple possesses a canine, and following their split, one individual retains custody of the dog while the other desires ongoing visitation rights. Although it is feasible to incorporate language to facilitate this occurrence if the primary caretaker of the dog declines to adhere to the agreement, enforcing it would be challenging and would entail significant expenses.

Is it possible to reverse a minute of agreement?

In certain circumstances, it is possible to contest the Agreement because it was not equitable and rational when it was initially established. The difficulty level of this test is high. An instance where a problem could arise pertains to the act of revealing information. The Agreement will often include standard language that underscores the significance of both parties providing a comprehensive disclosure of pertinent assets and debts. If it is later discovered that an asset was not revealed, the Agreement may be subject to review and perhaps invalidated.

Contact our Family Law solicitors in Glasgow For a free initial Consultation

Complete Clarity Solicitors can help you take control of your finances. Contact us today to speak to one of our lawyers about personal and family money matters. Call us on 0808 169 9476 or complete our online enquiry form and let us help you.