An overview of the basics.
Two Types of Divorce In Scotland
Simplified procedure â€“ which could be used if there are no financial matters to resolve, or these have already been decided and drawn up in a formal Separation Agreement, and there are no children under 16 of the marriage
Ordinary procedure â€“ in all other cases. In order to apply for a divorce, you first need to establish grounds for divorce
What Are the Grounds For Divorce (Time or Reasons)?
You have been separated from your spouse for one year and your spouse is prepared to consent.
You have been separated from your spouse for two years. You can then go ahead with a divorce without your spouseâ€™s consent.
You are able to prove your spouse has committed adultery. You can then apply for a divorce immediately. However, if you have known that your spouse has committed adultery and you continue to live with them for more than three months then you are deemed to have condoned that adultery and cannot then proceed with a divorce on that ground.
You can establish that your spouseâ€™s behaviour is such that you cannot reasonably be expected to continue to live with them â€“ this is often referred to as â€˜unreasonable behaviourâ€™. You can then apply for a divorce immediately. You would have to provide evidence from someone else to confirm the position. Unreasonable behaviour does not necessarily mean just physical abuse. It can also cover issues such as alcohol or drug abuse or gambling, as well as emotional abuse.
How Lond Does It Take To Get a Divorce?
If matters are straightforward and you are not asking the court to rule on financial matters or care arrangements for any children, then usually a divorce can be granted within six to eight weeks, assuming you meet one of the grounds for divorce.
We Have Separated, What Next?
If you have agreed all financial matters and care arrangements for any children, and had the terms legally drawn up in a Separation Agreement, then you can apply for a divorce if you meet one of the grounds for divorce listed above.
If not, then the first step is to have a Separation Agreement (also referred to as a Minute of Agreement) prepared by a Solicitor. This is a legally binding document formally recording how the matrimonial assets and debts are to be divided and it can also set out where the children will live and the amount of child maintenance/support to be paid.
Alternatively, if you and your spouse are unable to agree on matters then one of you may have to consider raising a divorce action and as part of that, you can both ask the court to determine how the finances will be split and the care arrangements for the children.
What Can I Legally Claim?
In Scotland, the law states that each person is entitle to a â€˜fairâ€™ share of the matrimonial property â€“ the assets accumulated during the marriage. In most cases, that will be a 50:50 share. However, there can be situations where a 50:50 share would not produce a fair split, in which case a person can ask for more than a 50 per cent share.
If We Live In The Same House Can we Still Be Separated?
Yes. Many people simply cannot afford to run two households when they first split up, so it is not unusual for them to start their formal separation negotiations while still living together. A lot of people think that to be legally separated, you must physically live apart but that is not the case. The important date is the date that the couple stop living together as husband and wife.
We Were Married Abroad, Can We Get Divorced In Scotland?
Possibly. However, that alone is not enough to establish jurisdiction in the Scottish Court. This is a complicated legal issue, so you should get legal advice about your specific circumstances. Our Panel of legal experts will be able to provide specific lrgal advice dependant on your jurisdiction and the circumstances of the marrage. Please call them if you need urgent advice.
How Much Will A Divorce Cost?
The costs of a divorce can vary, depending on the circumstances of your case. Our panel Firms shall provide you with full estimates. The general rule is that the more specific information you can provide the more accurate the estimate will be. The second issue is that the more comntentious the divorce the more costly it can be so its always cheaper to either negotiate through your lawyer or try as best as possible to keep things as ammicable as possible. about the potential costs of any option and offer a range of payment options. In some cases we can offer clients a fixed price package. For example, where there are no financial claims and no children under 16 years of age and matters are agreed, you may be eligible for a Simplified Divorce, in which case we offer a fixed fee of Â£300 inclusive of VAT and excluding outlays.
Children In A Divorce
There is no hard and fast rule. If parents are unable to agree on the care arrangements for the children, then the court can be asked to determine where the children should live. The legal test is what would be in the best interests of the children, so the court has a very wide discretion in deciding that. It is generally better if parents can come to an agreement about this and mediation can be an effective way to do that, rather than facing the uncertainty of a court order.
If the child was born before May 2006, then an unmarried father might not have automatic parental rights or responsibilities. A father in this position who wishes to acquire parental rights must do so with the motherâ€™s agreement or by obtaining a court order. If the court is persuaded that it is in the childâ€™s best interest that the father is given parental rights and responsibilities, then the court will grant them to him.
If there is a dispute about where the child should live, then it is possible to apply to the court for a residence order. The court can also make an order for the child to have contact with the non-resident parent if the parents cannot agree on suitable contact arrangements. If the child is old enough to express an opinion, then their views will be taken into account. If you are unsure of your rights, or you would like to obtain custody of, or access to, a child, then get in touch with us today.
Those aged over 12 years old are legally entitled to have their opinion taken into account when decisions are being made about their care arrangements.