Sometimes relationships don’t work out as expected. The stress and strain of any breakup means that the legal issues arising in relation to separation and divorce, division of property, and children all need to be handled sensitively and compassionately. Decision making in such situations can be difficult.
If you are dealing with a family matter, we recognise that you will be seeking advice in difficult or challenging circumstances. That’s why we will take the time to listen to you, offer sound sensible guidance and support, and apply our legal expertise to achieve the best possible outcome for you.
The procedure to obtain a divorce or dissolve a civil partnership in Scotland involves an application being made to either the Sheriff Court or the Court of Session. You will need to apply either for a simplified divorce or dissolution, sometimes known as a ‘DIY’ divorce or dissolution application, or, you will need to raise an Ordinary action.
Before a divorce or dissolution can be granted, the Court must be satisfied that all financial matters have been addressed and that the care arrangements for any child of the relationship who is under the age of 16 years are satisfactory.
If you have been able to reach agreement with your spouse or civil partner in relation to financial matters, and there are no children under the age of 16 years, then you can apply for a simplified divorce or dissolution.
If you have sorted out the financial side of things but there are children under the age of 16 years, an ordinary divorce action will need to be raised.
If there are outstanding matters to do with either financial arrangements or the children of the relationship, you should seek to resolve those matters between yourselves if possible or you may need to raise an ordinary action and invite the Court to intervene.
Since sorting out financial matters and care arrangements for any children of the relationship takes priority, obtaining a divorce or dissolving a civil partnership is really the last step in the whole process.
There are only two grounds for divorce or civil partnership dissolution in Scotland. These are either that there has been the “irretrievable breakdown” of the marriage or civil partnership, or an interim gender recognition certificate has been obtained by one of you. Irretrievable breakdown of a marriage can be established by demonstrating that your spouse has behaved unreasonably; your spouse has committed adultery; you have lived separately for at least one year (and your spouse consents to the divorce); or you have been living separately for a period of two years or more. Irretrievable breakdown of a civil partnership can be established by demonstrating unreasonable behaviour, living separately for one year with the consent of the other partner or living separately for a period of two years or more.
If there are any financial matters that need to be agreed because of your separation, then we recommend that a separation agreement is drawn up to regulate matters. A separation agreement is a contract between you and your spouse or civil partner. It might regulate the sale of the family home or regulate the transfer of it to one or the other of you. It might set out what has been agreed in terms of ongoing payments to your spouse or civil partner for the benefit of the children of your relationship. It may also deal with the care arrangements for the children of the relationship. In most separation scenarios there will be bank accounts or property that need to be sorted out. A separation agreement can be drawn up so that everyone is clear about what has been agreed and what needs to be done and when.
If you and your spouse or civil partner have signed a separation agreement which addresses all the financial and other matters arising from your separation, then your application for divorce or dissolution can proceed as undefended. An ordinary divorce action will be needed if there are children under the age of 16. Your application for divorce or dissolution can be granted without either you or your spouse or civil partner needing to attend Court. Evidence is submitted to the Court in writing and no formal hearing will be needed.
When spouses to a marriage or civil partners separate, each person is entitled to a ‘fair share’ of the net value of the matrimonial or partnership property as at the date of separation. It is presumed that a ‘fair share’ is an equal share, therefore a 50:50 split is the starting point. There are, however, a number of factors that require to be considered when assessing financial settlement which may result in matters being dealt with differently. It is important that advice is taken as it is not always the case that a 50:50 split is appropriate. It is not only division of the assets and debts accumulated during the marriage or partnership that needs to be considered, there may be issues about ongoing financial support that need to be explored too. It is important to take advice since your own individual circumstances will have a bearing on what you may be entitled to.
It is generally best if decisions in relation to the children, such as where they will live and how often they will see the other parent, are decided between you and your spouse or partner. You are best placed to know what is best for your own children. It can be a difficult matter to discuss in the context of a separation, especially if communication between you and your spouse or partner has deteriorated. Engaging the services of your solicitor to assist with negotiating those arrangements may be necessary. There is rarely a ‘one size fits all’ solution. The primary consideration when resolving conflict about care arrangements is what is in the best interests of the child. Our team can help you to explore ways to address disputes about residence or contact. Mediation may be an option, or if necessary, you may need to ask the Court to consider granting a contact or residence order.
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