Scottish Divorce Law
AN OVERVIEW OF THE BASICS
Two Types of Divorce In Scotland
Simplified procedure – 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 – 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 spouse’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 spouse’s behaviour is such that you cannot reasonably be expected to continue to live with them – this is often referred to as ‘unreasonable behaviour’. 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.
AN OVERVIEW OF THE BASICS
Seeking Resolution | Negotiated Settlement | Possitive Outcome
When a relationship ends, you’ll need to decide who gets what. This can be difficult to agree on, as one person may argue that they should stay in the property with the kids, while the other may argue that they’ve contributed more money. Inevitably, this can lead to disputes over who owns what. Mediation is a non confrontational method that many people consider a better and more cost effective method. Mediation is the process by which families can negotiate about future arrangements for children. The mediator does not tell parties what to do, but can help the parties to reach their own agreements amicably, whilst trying to improve communication between them.
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mediation are not legally binding in the sense of being enforceable in a court, but many find that by using a third party they avoid the adversarial conflict and stress that can be generated by a full blown legal action.
The cost of mediation depends on what mediation you use, it is not free but usually cheaper than each party employing a lawyer. If you are looking at all the options available ask or request more information using our free legal family expert lawyer finder.
Remember that mediators are neutral and will not take sides. They will not give advice to either party. They will usually recommend that you obtain legal advice alongside the mediation process if required and will guide you as to when this should happen.Once you have proposals you both find acceptable the mediator will prepare a summary of them together with a summary of the financial information which will be sent to each of you. Ask one of our expert family lawyers for more information.
Many separating couples find it helpful to enter into a written separation agreement (known as a Minute of Agreement) with their spouse/ex-partner in relation to all the issues arising from the breakdown of their marriage/relationship.
Minute of Agreement, or a Separation Agreement is the equivalent of a ‘contract’ entered into by yourself and your spouse/partner. This can be registered with the Books of Council and Session. The terms of your Separation Agreement will depend on a number of factors. Every agreement is different and individual to each couple: do you want to sell the house, keep it in joint names, have it transferred to one of you, can you afford to buy the other party out, what is to happen with the mortgage, will the other party move out right away, will they rent a property, will you both live in the same house for a period of time, what about the children, who will they stay with, if they stay with mum when will they see dad and vice versa, will one of you pay money to the other in relation to the children and other matters, if so, how much and how often, will the children stay overnight with the other parent, what about holidays, what about childcare cost, what about pensions, have you and your spouse run up a lot of debt, who incurred the debt, what was it for, who is going to pay it off, will you both pay it or will one of you pay more than the other, will all of the debt be paid off from the sale proceeds of the house. All of these points and many others can be discussed and agreed with your spouse/partner prior to meeting with your solicitor. Alternatively these issues can be negotiated on your behalf by your solicitor. It can often take some time for the terms of your Minute of Agreement to be finalised. Our family law panel firms have a great deal of experience and expertise in this area
Interim Minutes of Agreement - Sometimes an agreement is needed immediately, prior to you and your spouse/partner having reached agreement on the final terms of your main Separation Agreement. Interim agreements may be required to allow the family home to be sold or in relation to contact arrangements for the children. At Nero Legal we are experienced in drafting these agreements as instructed by you.