The breakdown of a marriage is a difficult time for all concerned, particularly in the early stages. There can be all sorts of questions about the separation and divorce process, uncertainties about care arrangements for children and financial matters, and difficulty coming to agreement on key issues for many separating couples.
The following are some of our most frequently asked questions when it comes to Family Law and divorce and separation.
A divorce is the ending of the legal contract of marriage and you can only get a divorce by applying to the court, usually the Sheriff Court, to grant a decree of divorce. A civil partnership is legally ended by dissolution rather than divorce.
If you and your spouse can agree on all issues arising from the separation before applying for divorce, the application for divorce is then undefended. This means that neither party has to go to court to give evidence for the divorce, and makes the whole process much more straightforward. You will usually need a Solicitor to draft and submit the application for you.
If, however, you cannot agree, you may have to raise a court action for the court to resolve the issues as part of the divorce proceedings. This can be a costly process with Solicitor representation on both sides.
There are two ways to apply for a divorce:
In order to apply for a divorce, you first need to establish grounds for divorce
There are only two grounds you can use for divorce. The most common is if you can establish that the marriage has broken down irretrievably. There are four different ways you can show this irretrievable breakdown:
The other ground for applying for divorce is where an interim gender recognition certificate has been issued to one of the parties.
Our team can advise you whether you have grounds to apply for a divorce.
There is a ‘no fault’ principle in Scotland, which means that no matter what the ground for divorce is, neither party will be penalised financially for their behaviour.
Before you apply for a divorce, you may first wish to consider reaching an agreement over the care arrangements for your children and also how any finances will be split.
This will vary depending on the circumstances of your case. However, 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.
In Scotland, this normally refers to the Simplified or ‘DIY’ Divorce. This can be used if there are no outstanding financial matters to sort out (or if these have previously been agreed and reflected in a Separation Agreement) and there are no children of the marriage under the age of 16 years.
Under a Simplified Divorce, you can complete the divorce application form yourself, although a Solicitor has to notarise the application form before it can be lodged with the court. From start to finish the process takes approximately eight weeks to complete. Find out more in our Simplified Divorce section.
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.
You should seek legal advice about applying for a divorce, as a Solicitor will be able to discuss the different options available to you. Depending on which ground you apply under, it may not matter that your spouse does not consent as in some circumstances you may be able to apply for a divorce without consent. Alternatively your solicitor may be able to help you negotiate the terms of a separation agreement with your ex-spouse and a divorce can be applied for later.
In Scotland, the law states that each person is entitle to a ‘fair’ share of the matrimonial property – 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. You can find more on this in our Financial Divorce Settlements section.
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. You can find more on care arrangements in our Child Issues section.
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.
Contrary to popular belief, it does not have to be the date a couple stop living together and one leaves the family home, although often that will be that date. Legally, it is the date the couple stop living together as husband and wife. Often a couple may continue to live together under the one roof, although they have separated. The date of separation is a matter of fact and if there is to be dispute about it then evidence will need to be produced to establish what date it was.
Tracing agents can be used to attempt to locate your spouse. If that fails, then there are traditional methods of serving court papers that can be used, including taking out an advert in the local newspaper and displaying a public notice in the local court.
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.
If you are thinking about applying for a divorce, our expert team of Family Lawyers can provide you with legal advice and guidance on all your divorce and separation options, and how best to proceed for your circumstances. We can help you raise a court action if that is right for your case and support you through the process. Our alternative dispute resolution services can also help separating couples come to an amicable agreement on matters arising from their separation and avoid costly court actions.
At Thorntons Family Law, we offer an initial free no-obligation chat over the phone to outline your options and the possible costs.
Depending on your case and circumstances, the next step is to come into one of our local offices to meet a Family Law Solicitor about your case and the way forward.
Call us on 03330 430 150 for a chat or contact us to book an appointment.
If you are unsure about your situation, and want to know where you stand before deciding what to do, we offer an Advice Package with a fixed price of £250 inclusive of VAT so you can talk to one of our Solicitors in more depth about your options. After the meeting, you may decide not to take things any further. If you do decide to move forward the £250 fee is offset from your overall bill.
The costs of a divorce can vary, depending on the circumstances of your case. We are always clear to clients 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 £300 inclusive of VAT and excluding outlays.
If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs or payments to independent experts.
We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses. Please note we do not offer Legal Aid for this service.
The costs for divorce can be significant, especially if negotiation becomes drawn out or the matter ends up in court. If you are concerned about covering such costs, we can put you in touch with a specialist company who provide funding for clients to assist with the costs of family law cases. You will then pay them back when you receive a financial award under the divorce. To discuss eligibility call us on 03330 430 150 or contact us
Frequently asked questions
We receive many questions about separation and divorce; the process and what steps people should take. We have answered some commonly asked questions below
Our other clients have found the following information helped support them while going through their divorce or separation.
Civil Partnership Dissolution
Advice on the civil partnership dissolution process, options available and help with any court action.Learn more
Same Sex Divorce
Guidance and advice on your divorce and separation options and legal representation if needed.Learn more
Help negotiating terms on Separation Agreements, and the drafting and drawing up the legal documents.Learn more
Guidance on the regular financial support that could be payable to one spouse by the other during separationLearn more
Giving you alternative routes for dispute resolution, including mediation, arbitration, negotiation and collaboration.Learn more
Financial Divorce Settlements
Advice on how assets, such as property and pensions, are split on separation.Learn more
We have a full range of services in Family Law, backed by our team of Expert Lawyers
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