Getting a Divorce in Scotland
In 2018-2019 there were approximately 7323 divorces/dissolutions granted via the Scottish Courts. Deciding to proceed with a divorce or a dissolution can be a stressful and emotional time for both parties to the separation and divorce. In our latest blog, we will look at the process of divorce in Scotland and what separation and divorce mean. We will also look at the costs and the simplest way to progress matters to allow you to proceed with the minimum of stress. We should add that the process for dissolution of a civil partnership follows the same process as a divorce.
What’s the difference between ordinary divorce, simplified divorce and legal separation?
Often, people are confused by the terms used by solicitors and the court to describe the process of the breakdown of a marriage or civil partnership. Many people believe that applying for a divorce resolves all of the issues arising from the breakdown of the marriage. However, in the majority of cases, these matters will be resolved prior to the raising of the divorce action. Below we will explore the different terms and explain what these mean.
Legal Separation
When parties decide to separate, all matters arising from their separation require to be resolved. These often include financial matters and care arrangements for any children of the marriage/civil partnership. We always recommend that parties make efforts to resolve these issues as quickly as possible to allow parties to legally separate and move forward to divorce once they are able to.
The starting point in Scottish Legislation is the Family Law (Scotland) Act 1985, which sets out the fair sharing principle. Parties to a marriage/civil partnership should leave with a fair share of the matrimonial property. By the term matrimonial property, we mean the assets and liabilities accrued throughout the period of marriage (from date of marriage to date of separation) The date of separation is very important as it is effectively the cut off point for any claims that one party may have against the other (with some exceptions) If the date of separation cannot be agreed, then there may require to be an evidential hearing to determine the date.
It is recommended that valuations of all assets and liabilities are obtained to determine the value of the matrimonial property pot and to work out whether either party is due a balancing payment from the other party to allow both to leave the marriage/civil partnership on an even footing (a fair share) This can be effected in a number of ways, for example, by way of a capital sum payment (monetary payment), a pension share or transfer of property. Equally, parties can come to any agreement they wish between them. In such a scenario, we would be unable to say whether the parties had received a fair share of the matrimonial property.
In either scenario, whatever is agreed should be recorded in a document called a minute of agreement or separation agreement. This is a written document which sets out the agreement and obligations that each party has to fulfill in order to give effect to the agreement, which is then signed by both parties and registered. If there are children of the marriage/civil partnership, the parties can also reflect any agreement they have reached in respect of the children within this document, such as the living arrangements, the time that the children will spend with each parent, child aliment/maintenance and any other matters which may be of importance to the parties particular family situation.
Simplified Divorce
The simplified divorce procedure is often known as the “quickie divorce.” This is a misleading name attributed to the process, as certain criteria has to be met. The overarching ground of divorce of the irretrievable breakdown of the marriage/civil partnership still applies, and this must be evidenced by the separation of parties based on one years separation with consent of the other party, or two years separation, where no consent is required; or the issuing of a gender recognition certificate. To be able to utilise the simplified procedure, the parties must be able to confirm to the court that there are no outstanding financial matters to resolve and that there are no children under the age of 16. They also need to be able to demonstrate that they meet the criteria for domicile and jurisdiction. If all of this criteria can be met, the simplified procedure can be used which utilises forms and is lodged with the court. The divorce is normally granted in around 8 weeks which is where the quickie divorce term originates from, however this is subject to the workload of the court at the time.
Ordinary Divorce
Ordinary divorce refers to the ordinary procedure rules which are used to raise the divorce proceedings. This procedure needs to be used where there are children under the age of 16; matters to be resolved with regard to children or finances; unreasonable behaviour; adultery; or if there is an argument over the date of separation. A mixture of these grounds can be utilised for example: unreasonable behaviour and also asking the court for orders for financial provision (a capital sum, pension share, transfer of property); or two years separation with an order for residence of the children and financial provision.
If all matters have been resolved but there are children under the age of 16, ordinary procedure still needs to be used. This is so the court can be satisfied that no orders are required for the children. The process is started with a document called an initial writ which sets out the crave for divorce. This can be utilised on the basis of one years separation with the other parties consent, 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) one from the person raising the action, and the other being a 3rd party witness who can corroborate the position and speak to the arrangements for the children. This process is longer than the simplified procedure but is normally granted around 8 – 12 weeks from lodging. This of course is an estimate and is dependent on the level of court business and the co-operation of all parties.
Check if you can get divorced
- Legally recognised marriage
- Satisfying the overarching criteria – irretrievable breakdown of marriage as evidenced by a period of separation, unreasonable behaviour, adultery or issuing of a gender recognition certificate.
- Domicile/ jurisdiction – either party of the marriage or either civil partner is domiciled in Scotland on the date when the action is begun, and was habitually resident in Scotland throughout the period of one year ending with that date.
Grounds for Divorce
There is one overarching ground of divorce in Scotland – the irretrievable breakdown of marriage. This can be evidenced by:
- Unreasonable Behaviour
- Adultery
- Issuing of a gender recognition certificate
- Based upon a period of separation : one year with consent, two years without consent.
Adultery
This can be used as a reason for the irretrievable breakdown of the marriage if the adultery has taken place since the date of marriage. The irretrievable breakdown of a marriage shall not be taken to be established in an action for divorce by reason of adultery if the party who has not committed adultery continues to cohabit with the other in the knowledge or belief that they have committed adultery. For example: if Person A discovered Person B has committed adultery but they decide to continue with their marriage/civil partnership, but then separate one year later, they cannot rely on Adultery as their reason for divorce. Therefore, it is important that you take advice quickly from a solicitor if you suspect or discover that your spouse or civil partner has committed adultery to fully understand your options.
Unreasonable behaviour
A divorce action can be raised immediately upon separation if grounds of unreasonable behaviour can be demonstrated. It would need to be demonstrated that the spouse/civil partner has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the other cannot reasonably be expected to cohabit with them. Example of unreasonable behaviour could be domestic abuse, threatening or abusive behaviour, issues coming to light such as criminal behaviour , a party being convicted of a criminal offence or financially controlling behaviour. The list is not exhaustive and it is important to speak to a solicitor regarding the specific circumstances of your situation.
Issuing of a Gender Recognition Certificate
The issuing of a gender recognition certificate immediately provides evidence for the overarching ground of irretrievable breakdown of marriage.
Separated for 1 year with consent
Upon being separated for one year, either party may apply to the court for a divorce. However, the consent of the other party must be obtained for the divorce to be able to proceed. The other party must sign a form and provide this to the court to confirm they consent to the divorce. If they do not provide this, then the divorce cannot proceed and the parties will require to amend the crave to 2 years once that period of separation has been reached to allow the divorce action to go ahead.
Separated for 2 years without consent
Upon being separated for two years, either party may raise a divorce action. This can be utilised either on the basis of it being an undefended action, where all financial and child related matters have been resolved, or as an action with additional craves such as for financial provision.
There is no one size fits all process to your separation. It is important that you instruct a solicitor who understands your specific situation and what is important to you, as well as what you are seeking to achieve as the outcome in your divorce. We are able to offer expert advice in relation to separation and divorce, and the different ways in which settlement can be achieved.
How long does it take to get a divorce?
Simplified divorce normally takes around 6-8 weeks from the papers being lodged at the court to grant. An undefended ordinary divorce takes around 8-12 weeks from the lodging for the papers. These options are the quickest way to have divorce granted, but of course this means that all matters relating to finances and children from the separation have already been resolved.
If they have not, and an ordinary divorce is defended, it is impossible to give a timeframe as it will depend on the nature of the orders sought from the court; whether there is ancillary procedure required for disclosure of information and documents; if there are child matters to be resolved; if a proof (evidential hearing) is required; and the number of witnesses, including whether expert witnesses are needed. These are just some of the issues which would need to be considered and which can result in timeframes being extended. Often this can run to at least one year and is also dependent upon the court timetable and parties and witnesses availability. The covid-19 pandemic has been no exception and has resulted in longer wait times across all types of divorce which should be expected by parties currently entering into the court process.
Can you get divorced online?
No, you cannot get divorced online in Scotland. The only way to get divorced is to utilise the court process, and instructing a solicitor is the simplest way to do this.
How much does getting a divorce cost?
This can be a difficult question to answer as it is dependent upon many different factors. Many people when asking this question are also referring to the legal separation part of the process. That part of the process can be costly if the other party does not co-operate as this could also lead to court proceedings (defended divorce) which could run into tens of thousands of pounds if the matter runs to a proof (full evidential hearing) If parties co-operate then costs can be significantly curtailed, and alternative dispute resolution methods can also be used which allow parties to retain control over their separation such as mediation, collaboration or arbitration.
Simplified divorce: We charge a fixed fee of £350 plus vat and outlays, or £450 plus vat and outlays if further work is required such as tracing your ex spouse or obtaining marriage certificates on your behalf. The outlays include the court lodging fee (obtainable at www.scotcourts.gov.uk – the price changes slightly each year) and the cost of serving the papers upon your estranged spouse if this is required via sheriff officers. The cost of this will be dependent upon the location of your estranged spouse.
Ordinary divorce: We charge a fixed fee for undefended divorce of £950 plus vat and outlays. The outlays include the court lodging fee for the writ and initial lodging of affidavits (obtainable at www.scotcourts.gov.uk – the price changes slightly each year), the costs of obtaining marriage and birth certificates if you do not hold the original copies, and the cost of instructing sheriff officers to serve papers if service cannot be effected by post.
Hiring a Divorce Solicitor
There is no set way to choose a solicitor. We would suggest your solicitor should be straightforward and set out the various options that are available to you, even if some of those are not in line with your view or what you think you are looking to achieve. There is little point in having a solicitor who is afraid to be frank and honest with you, particularly given the ongoing impact any agreement you enter into may have. A good solicitor will take you through the advantages and disadvantages of all options.
For each client, there are different factors which will be more important. For some, cost will be the most pressing matter, for others time; others will be focused on arrangements in respect of the children over financial matters and vice versa. However, the mark of a good solicitor is the ability to focus on those issues which are important to the client and tailor their advice accordingly to determine the best course of action.
And of course, it is helpful if you are able to get on well with your solicitor, and have trust in them. Arguably the most important part of the solicitor client relationship is ensuring that you are comfortable with your solicitor. You are likely to be working with your solicitor for a considerable period of time, through what may be one of the most difficult times of your life, so you want to make this process as easy as it can be. Having a solicitor that you have a rapport with tends to make things less daunting or difficult.
Money and Property when getting divorced (Financial Provision Upon Divorce)
As outlined above, the net value of the assets and liabilities accrued during the period of marriage are taken into account. This can encompass many different areas such as the matrimonial home, a family business, money held in the bank such as savings, pensions, shares, jewellery, and also can include loans, mortgages and credit cards. This list is not exhaustive and is intended to provide examples. There are some exceptions to what can be included such as inheritance or a gift. The starting point is a fair share of this total between the parties, though there are exceptions to the fair sharing principle.
There may also be scope for aliment from one party to the other. This is usually a monthly payment which allows the other party to adjust to their new circumstances. It is not intended to be a never ending payment and usually payable up until divorce. The figure payable will be dependent on the resources and circumstances of the parties at the time of application for aliment.
Making child arrangements when getting a divorce
If parties are able to come to an agreement regarding the care arrangements for children of the marriage going forward, this can be recorded in the minute of agreement to reflect what has been discussed and agreed. If they cannot be agreed, then this may need to be decided by the court in an action for divorce.
Financial Support
Parents owe an obligation of aliment to their children. This can be by way of a monthly payment or lump sum payment agreed between the parents to assist with the upbringing, care etc. of the children. If parties cannot agree or there is a change in circumstance, they can at any time utilise the child maintenance service to carry out a calculation as to their obligation.
Care Arrangement for Children
When we refer to care arrangements we mean the living arrangements for children: residence and contact arrangements (previously known as custody and access) There is no one size fits all approach to this and it is family and circumstance specific. This can be stressful particularly if the separating parties do not have a good relationship. We would always try to encourage separating parties to maintain good lines of open communication and to be as amicable as possible, keeping children out of discussions around the arrangements or any disagreements parties may have. If parties cannot come to an agreement with regard to the living and care arrangements for their children, then they may wish to consider attending at mediation. They could also utilise the collaborative approach for their divorce which would deal with all financial and child related matters with parties working together to come to a solution that meets all parties needs. If agreement cannot be reached, then a court action may need to be raised to resolve the living arrangements for the children. This could be in a stand alone action for the children or as part of a divorce action. It is best to think practically what will work for the children, and what is in their best interests. If the court is required to make a decision it will have the children’s best interests at the forefront of its decision making.
Does divorce always go to court?
Yes, on the basis that the court must grant a divorce. However, by this question most people mean will their separation end up in a court battle. The majority of couples separating do not end up having to raise a court action to resolve the finances or the child care arrangements arising from their separation and are able to utilise the simplified procedure, or the ordinary procedure on an undefended basis.
What to do if either party cannot come to a divorce agreement?
Alternative dispute methods can be utilised such as mediation or arbitration. Mediation involves both parties working with a trained, impartial mediator or trained solicitor mediator to reach agreement. See www.calmscotland.co.uk for further information. Following corona virus and the backlog of cases in the Scottish Courts, more and more people are turning to Arbitration for decisions to be made when parties are unable to come to agreement between themselves. Family Law Arbitrators in Scotland are all accredited specialist family lawyers or experienced family advocates. They have been trained to decide family law issues and are members of the Family Law Arbitration Group Scotland. Their decisions are as binding on parties as that of a court. Arbitration offers the speedy resolution to family law issues of all sorts with the exception of divorce itself and can be utilised for decision making on one specific issue if that is all that remains in dispute. See www.flagsarb.com for further information.
A divorce action may need to be raised with ancillary craves (asking the court to do certain things such as make an order for a payment of money from one party to the other or sale of a property) if parties cannot reach agreement. We have discussed this process elsewhere in this article.
We offer initial consultations by telephone, video call or in person to discuss your particular situation and how the law may be applied in your specific circumstances. We charge a fixed fee for the first appointment. We understand that every marriage and civil partnership is different, and each client will have their own needs and considerations as to their future and the way they wish their separation to resolve. We provide clear, expert advice to guide you on the path to a good divorce. Make your appointment today here.
