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Welcome to our ultimate legal advice guide to divorce in Scotland:-
One or both parties to a marriage or civil partnership will usually only begin to contemplate ending their relationship when it becomes apparent that it is beyond repair, possibly because it has deteriorated over time or been damaged by a single incident. If ending a marriage or civil partnership is the only remaining option, it is necessary to go through a formal legal process. When ending a marriage, this process is called divorce. When ending a civil partnership, this process is called dissolution.
The rights and responsibilities of parties to a marriage and the law relating to divorce are broadly similar for civil partners and the dissolution of civil partnerships. For this reason, any reference to divorce and spouses in this guide also includes dissolution and civil partners (unless there are specific differences).
Divorce or dissolution invariably leads to issues relating to children and the division of shared assets. Arrangements for children can either be made between the separating couple, provided they are in the best interests of the child, or by the court if an agreement cannot be reached. In regard to assets, an increasing number of couples enter into pre-nuptial agreements before they marry or enter into a civil partnership to cover what should happen if the relationship later fails. If there isn’t a pre-nuptial agreement and no agreement can be reached, a court will decide how specific assets under the Family Law (Scotland) Act 1985 should be distributed.
Marriage is a legal status established under the Marriage (Scotland) Act 1977. The only way to end a valid marriage (other than by death) is through the legal process of divorce by application to the court. It is the court that ultimately grants a divorce.
Civil partnership is a legal status established under the Civil Partnership Act 2004. A civil partnership can only be ended through the process of dissolution by application to the court. Similar to marriage, it is the court that ultimately grants dissolution, formally ending the partnership.
Until the divorce is granted, the marriage still exists, regardless of the actual situation between husband and wife. Once granted, divorce is final and the marriage is ended. If the parties change their mind once a divorce has been granted, they will need to get married again.
If a ‘marriage’ is not legally valid, a divorce is neither necessary nor possible. To form a legally valid marriage, the law requires that the parties must be aged 16 years of age and have the necessary mental capacity to consent to marry; must not already be married and must not be coerced into marriage.
The law also sets out specific formalities of marriage that must be complied with, such as submitting a marriage notice and birth certificates to the district registrar. Should any legal requirements for a valid marriage be absent, it is invalid.
If a third party wishes to have the marriage formally declared invalid, they can seek an annulment from the court. If the legal validity of your marriage is a concern for you, seek advice from a solicitor specialising in family law.
You can obtain a divorce through a simple court procedure or by formal ‘writ’ lodged with the court.
In the most straightforward cases (for instance, where there are no financial matters to decide and no children under 16) you will need to lodge the appropriate form in the Sheriff Court. This is the ‘fast-track’ process and you do not need to appear in court. A solicitor is not normally required but the form must be signed by a Justice of the Peace, Notary Public, or Commissioner for Oaths.
This procedure is appropriate where the parties have been separated for either one year and both consent to the divorce; or two years if one party does not consent. Continuous separation of more than a year is considered evidence of the irretrievable breakdown of a marriage (see ‘grounds for divorce’). The form requires the date when you last lived together and any dates when you temporarily got back together.
The period of separation does not need to be continuous. Short periods spent together again will not be detracted from the one or two year period of separation, so long as they do not exceed six months in total. If you are in doubt as to how it applies in your case, consult a family law solicitor.
If satisfied that the grounds for divorce have been satisfied, the court will grant the divorce. The Scottish Courts website features a comprehensive guide to the procedure along with all the relevant forms.
In a more complex case, a ‘writ’ must be lodged with the court. The writ asks the court to grant the applicant (‘pursuer’) a divorce, and usually includes formal requests for financial provision and orders relating to any children of the marriage. Each spouse will almost certainly need a solicitor.
The writ is served on the other party, and delivered to the court - usually the Sheriff Court in the area where the couple live. It is more complicated if the parties live in different areas or one lives abroad. The location of the court can also depend on where the children live. The other party is given 21 days to lodge a defence if they so choose, otherwise the action is ‘undefended’.
If both parties agree about what should happen to money and assets, the process can be straightforward. Reaching agreement can avoid putting these decisions in the hands of a judge. However, where children are concerned the court must ensure the welfare of the children is given top priority. This means any agreement reached concerning any child of the marriage may not be approved by the court if it decides it is not in the child’s best interests. More information on this can be found below.
If the other party defends the pursuer’s application, he or she can request the court to make alternative orders. The court will encourage both parties to negotiate a settlement without the need for the judge to decide all matters at the conclusion of a lengthy process. Solicitors can act for their clients in negotiations or act as mediators.
A settlement will be binding on both parties and endorsed by the court when the case is decided, but evidence will be required, primarily comprising sworn written evidence (affidavits) and documentary evidence including pay slips, insurance policies, bank statements and title deeds (or land registration documents).
Only if there is a dispute that you and your spouse cannot settle out of court. You may then need to go to court and give evidence.
Fault is not usually relevant because divorce is based on the irretrievable breakdown of a marriage. The only instance in which the court may attach some weight to ‘fault’ is where the conduct of one spouse has reduced the value of assets to be distributed on divorce. His or her share might be reduced to reflect this.
In Scotland, you can get divorced on the basis of non-cohabitation (separation) for one year or two years, depending on whether your spouse consents or not.
The other grounds for divorce are:
Adultery is an historic ground for divorce but its scope is limited to an act of penetrative intercourse between one spouse and another person of the opposite sex (‘the paramour’). An ‘affair’ without penetrative intercourse will be insufficient to constitute adultery but may amount to ‘unreasonable behaviour’.
In an action for divorce on the ground of adultery, the paramour will be notified of the pursuer’s action. The court will not grant a divorce for adultery if the two spouses arranged for the adultery to take place to facilitate a divorce. Nor will the court grant a divorce if the pursuer knows about the adultery but chooses to carry on living with the defender for more than three months following the adultery (also known as ‘condonation’).
The behaviour must be such that it is unreasonable for the person seeking divorce to continue living with their spouse. Domestic or alcohol abuse are a typical examples, although behaviour that is not unreasonable in and of itself, for example if someone acts aggressively as a result of a head injury which was not his or her fault, may also meet the standard.
The test is subjective, taking into account the characteristics of the person seeking the divorce. For example, they may be particularly vulnerable or sensitive to certain behaviour that makes it unreasonable for them to continue to live with their spouse.
A transsexual person may end their marriage on the ground that they have been issued an interim gender recognition certificate by the Gender Recognition Panel.
While a divorce will formally end a valid marriage, an invalid marriage must be annulled. In legal terms, an annulment means the marriage never occurred. (See above concerning invalid marriages.)
Parents have equal rights and responsibilities for their children and those rights are defined by law. However, the court has an overriding duty to ensure the welfare of the children, and will override parental rights where it decides it is in the best interests of the child to do so.
If an agreement as to residence and contact can be reached by mutual agreement, it will avoid the need for a judge to decide. In discussions about any child, it is important to recognise the need for flexibility and common sense to avoid future disputes. Mediation can also be beneficial and you can ask your solicitor about what this involves and how it can assist you. When an agreement is reached, the court will need to approve the terms and, if satisfied, will grant an order to that effect.
The question of which party ‘gets’ the children is often the most bitterly contested issue on divorce. Each party will have their own wishes in relation to contact, residence and the future upbringing of the children. The court’s duty is to do what is best for the children and will not deprive them from contact or exclude either from the upbringing of any child without good reason. The court will, if practical, take into account a child’s age and maturity to determine whether the child should be given an opportunity to express their own thoughts and wishes. Expert evidence, for instance from social services and medical professionals, may also be obtained by either or both parties to help the court reach a final decision.
The court can make two types of order in relation to children:
Residence order - A residence order deals with where a child is to live and lasts until the child is 16 (or longer, if the court considers it in the best interests of the child). Residence can be shared between parents and can also be with other family members as named on the order.
Contact order - A contact order covers arrangements for contact with the ‘non-resident’ parent. It generally lasts until the child is 16 years of age.
The issue of child maintenance is usually dealt with before matrimonial property.
Using the simplified procedure incurs a standard court fee. At the other end of the scale, a lengthy court battle in which the parties fail to reach any agreement and the judge has to make decisions about money and children, will incur large legal fees which could reach four or five figures.
Legal aid is available in certain circumstances. A family law solicitor will be able to advise you on the availability of legal aid and on how much your divorce is likely to cost if do not qualify.
Before a couple marry, they can enter into a ‘pre-nuptial agreement’, a legally binding contract setting out what they would like to happen to their money and property in the event that they are divorced. Pre-nuptial agreements are particularly useful if one or both partners have acquired substantial assets before marriage and want to protect them in the event of divorce.
As a legally binding contract, its terms will usually be enforced by the court - so long as it is considered ‘fair and reasonable’ and deals only with matrimonial property. A pre-nuptial agreement will not be valid if one party was forced or tricked into making it, if its terms are too vague or it seeks to achieve an illegal result.
When you separate, any money and other assets owned either individually or jointly are classed as ‘matrimonial property’. This includes money and assets acquired during the marriage but not before (with the exception of the purchase of the family home) and includes the income of either or both parties. Matrimonial property does not include gifts or inheritance received during marriage.
Any prenuptial agreement may come into play in determining how the assets are to be divided. In the absence of a binding pre-nuptial agreement, the court may be required to decide on what is a fair division.
The starting principle for dividing matrimonial property is that it is to be divided ‘fairly’. This does not necessarily mean equally. For instance, the source of funds used to buy property can be taken into account when deciding how property will be fairly divided. It is also relevant if the conduct of one party has reduced the value of any assets of the marriage.
The main asset will usually be the family home. If the property is jointly owned between the parties, the issue of how the property will be dealt with depends on how the property is owned. A jointly owned property can be owned as joint tenants or tenants in common with important legal implications.
It’s not unusual for one spouse to buy the other out in order to keep the house, for instance for the purpose of maintaining the home for any children of the marriage. However, if there are minimal assets other than house, it may need to be sold and the proceeds split between the parties.
Other typical matrimonial property includes stocks and shares, life insurance policies, bank accounts, business interests and pensions.
If agreement cannot be reached, the court will aim to create a ‘clean break’ between the parties. This is achieved by awarding a financial settlement in the form of a single ‘capital’ sum, or a sum to be paid in instalments. Alternatively, a periodical allowance can be ordered, either for a fixed period or indefinitely. This will stop when the party receiving the money remarries.
How matrimonial property will be divided can be complex and largely depends on the particular circumstances of the parties. Expert advice from a family law solicitor should be sought on all these issues.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.
See also our guide to finding the best family lawyer in Aberdeen (helpful for finding great family lawyers elsewhere too)