Family Law Divorce and Sepration Questions Answered
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Scotland and Divorce and Separation
Scottish courts granted 7,883 divorces/dissolutions in 2019-2020. Separation and divorce can be stressful and traumatic for both sides. On this page we'll discuss divorce in Scotland and separation vs. divorce. We'll also look at charges and the easiest approach to go to reduce your stress. Civil partnership dissolution is the same as divorce.
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What's the difference between normal, streamlined, and legal divorce?
People are often confused by the phrases solicitors and courts use to characterise a marital or civil partnership breakup. Many people assume divorce resolves all marital troubles. These issues are usually settled before filing for divorce. We'll define the terms below.
Legal Separation
When parties divorce, all issues must be settled. These include finances and child care. We urge parties resolve these concerns as fast as possible so they can legally separate and divorce.
The Family Law (Scotland) Act 1985 establishes the fair sharing principle. Marriage/civil partnership parties should split matrimonial property fairly. Matrimonial property refers to marital assets and liabilities (from date of marriage to date of separation) The date of separation is essential because it ends any claims one party may have against the other (with some exceptions) If the date of separation can't be agreed upon, a hearing may be needed.
All assets and liabilities should be valued to determine the matrimonial property pot and if each party is due a balancing payment from the other to dissolve the marriage/civil partnership on an even footing (a fair share) This can be done through capital amount payment, pension sharing, or property transfer. Parties can agree on anything. In this case, we can't say if the parties received a fair portion of the marital property.
Whatever is agreed should be recorded in a minute of agreement or separation agreement. This is a signed, registered document that outlines the agreement and each party's obligations. If there are children of the marriage/civil partnership, the parties can also reflect any agreement they have reached regarding the children in this document, such as living arrangements, time the children will spend with each parent, child aliment/maintenance, and any other matters which may be important to the parties' family situation.
Simplified Divorce
A "Quickie divorce" is the simplified divorce procedure. The name is misleading because specific conditions must be met. The overriding divorce reason of irretrievable breakdown of the marriage/civil partnership still applies, and this must be demonstrated by one year separation with consent of the other party, or two years separation, where no consent is required; or the issue of a gender recognition certificate. To use the simplified method, the parties must tell the court there are no unresolved financial issues and no children under 16. They must meet domicile and jurisdiction requirements. If all criteria are met, a simplified method using court paperwork can be used. The divorce is usually granted in 8 weeks, hence the phrase "quickie divorce," but this depends on the court's workload.
Ordinary Divorce
Ordinary divorce refers to the normal divorce procedure rules. This method must be employed when there are minor children, child or financial issues, unreasonable behaviour, adultery, or a dispute regarding the date of separation. Unreasonable behaviour and financial provision (capital sum, pension share, property transfer) can be used together, as can two years of separation with child custody and financial provision. If all issues are resolved but there are children under 16, use standard procedure. This ensures that no child orders are needed. An initial writ states the divorce desire. This can be used with one year's separation or two years' separation. In these types of divorce, the divorce action tends to be undefended and the court will grant the divorce upon being satisfied by the evidence provided, usually two affidavits (sworn statements) from the person raising the action and a 3rd party witness who can corroborate the position and speak to the child custody arrangements. This process is longer than the simple approach and takes 8-12 weeks from filing. It depends on court business and party cooperation.
Check if you can get divorced
* Marriage is Legally Recognised * Satisfy the Necessary Criteria - Dissolution of marriage as demonstrated by separation, unreasonable behaviour, adultery, or gender recognition certificate. * Domicile/Jurisdiction - Either spouse or civil partner is domiciled in Scotland on the date the action is initiated and was usually resident there for the year ending with that date
Grounds for Divorce
Scotland only divorces for irretrievable marriage breakup. This shows:
* Unreasonable Behaviour
* Adultery
* Gender recognition
* Time Separated - One year with consent, two without.
Adultery
Adultery after marriage can lead to the irretrievable disintegration of a marriage. In an action for divorce based on adultery, the irretrievable breakdown of a marriage is not established if one party cohabits with the other knowing or believing they have committed adultery. If Person A discovers Person B's adultery but they continue their marriage/civil partnership, they cannot use adultery as a cause for divorce a year later. If you suspect or uncover your husband or civil partner's adultery, see a lawyer soon to understand your alternatives.
Misbehavior
Unreasonable behaviour can be grounds for quick divorce. The spouse/civil partner must have behaved (whether due to mental disorder or not) in such a way that the other cannot fairly be expected to cohabit with them. Unreasonable behaviour includes domestic violence, threatening or abusive behaviour, criminal behaviour, or financially dominating behaviour. The list isn't exhaustive; consult a lawyer about your situation.
Certificates recognising gender
A gender recognition certificate immediately proves irretrievable marriage dissolution.
Consensual 1-year separation
Either party can file for divorce after one year of separation. The divorce must have the other party's consent. The other partner must sign a paper to certify divorce permission. If they do not produce this, the divorce cannot proceed and the parties will need to change the desire to 2 years after that term of separation has been reached.
Unconsented 2-year separation
After two years, either party can file for divorce. This can be used as an undefended action when all financial and child-related concerns have been handled, or as an action seeking financial provision.
Your divorce isn't one-size-fits-all. It's crucial to hire a divorce lawyer who understands your situation and goals. We offer skilled guidance on separation, divorce, and settlement.
How Long Does a Divorce Take?
The court grants a simplified divorce 6-8 weeks after the papers are filed. Undefended divorces take 8-12 weeks from filing. These methods are the shortest way to be divorced, but all financial and child-related issues must be settled. If they haven't, and an ordinary divorce is defended, it's impossible to give a timeframe because it depends on the nature of the court orders sought, whether ancillary procedure is required for disclosure of information and documents, if there are child issues to resolve, if a proof (evidential hearing) is required, and the number of witnesses, including expert witnesses. These are some of the challenges that can lengthen deadlines. Depending on the court schedule, parties, and witnesses, this can take at least a year. The covid-19 pandemic has caused in higher divorce wait periods, which couples entering the legal procedure should expect.
Online Divorce
Scotland doesn't allow internet divorces. Divorce requires court intervention, and hiring a lawyer is the easiest method to do so.
Divorce Cost
This question depends on numerous aspects, making it difficult to answer. Many people who ask this also mean legal separation. If the opposing party doesn't cooperate, this could lead to court proceedings (defended divorce) that could cost tens of thousands of pounds if the case goes to trial (full evidential hearing) If parties cooperate, costs can be greatly reduced, and alternative conflict resolution procedures can be used, such as mediation, collaboration, or arbitration. We charge £200 plus vat and outlays for a simplified divorce, or £300 plus vat and outlays for further work like tracing your ex-spouse or acquiring marriage certificates. Outlays include the court lodging fee (available at www.scotcourts.gov.uk; price increases annually) and the expense of serving your estranged spouse with papers via sheriff officers. This depends on your ex-location. spouse's
Hiring a Divorce Lawyer or Solicitor
When parties divorce, all issues must be settled. These include finances and child care. We urge parties resolve these concerns as fast as possible so they can legally separate and divorce.
Hiring a Divorce Lawyer or Solicitor
No method exists for choosing a lawyer. Your lawyer should be honest about the options open to you, even if some aren't in line with your goals. Given the long-term consequences of any arrangement you make, you don't need a lawyer who is hesitant to be honest with you. A skilled lawyer will explain all your options. Each client's priorities vary. For some, cost will be the most pressing issue, for others time; some may prioritise child-related arrangements before finances, and vice versa. A smart lawyer can focus on the client's concerns and adapt recommendations to decide the best course of action. It helps if you like and trust your lawyer. Most importantly, you should feel comfortable with your lawyer. You may be dealing with your lawyer for a long time, during one of the most painful moments of your life, so make the process as easy as possible. Having a friendly lawyer makes things easier.
How to Divorce if Neither Party Agrees
Mediation or arbitration are alternative dispute techniques. Both parties work with a professional, unbiased mediator or solicitor mediator to establish agreement. Information is at www.calmscotland.co.uk. After corona virus and the Scottish Courts' backlog, more individuals are turning to Arbitration when parties can't agree. Scotland's family law arbitrators are all licenced family lawyers or advocates. They're members of the Family Law Arbitration Group Scotland and have family law training. Their rulings are legally binding. Arbitration can be used to quickly resolve family law disputes, excluding divorce, if only one subject is in dispute.
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