The end of a marriage is always a complicated and difficult time. The stresses and pressures of the situation are only heightened by the complicated legal issues that come with it. So it’s important to know your way around these issues and how to deal with them. Beverley Johnson is one of Scotland’s leading authorities on handling divorce in an amicable, sensitive manner.

As you’re probably aware, some of the most common issues are where you’re going to live, how to fairly handle your finances and, if you have children, who will get custody. These should all be considered before you decide to end your marriage, as it’s possible to separate informally without involving the courts. This is even possible if you’re still living together.

Formally ending your marriage will mean applying for a divorce through the court. Which is why it’s a good idea to first make some practical decisions that could save you time and stress.

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According to Scottish law, divorce is an option when:

  • Your marriage has broken down beyond repair.
  • You or your partner have an interim gender recognition certificate. This is issued to a transgender person during the process of their new gender becoming legally recognised.

If your marriage has broken down beyond repair, you’ll need to prove this to a court. There are four ways to do this:

  • Show that you’ve lived individual lives (either in the same house or separately) for over a year and you both want a divorce.
  • Show that you’ve lived individual lives (either in the same house or separately) for over two years and only one of you wants a divorce.
  • Show that your spouse has committed adultery.
  • Show that your spouse has behaved unreasonably. This includes things like mental or physical abuse and financial irresponsibility. But it also covers things like your partner being dominating, not letting you leave the house or have social contact or not contributing to the upkeep of the house.

In the case of adultery or unreasonable behaviour there’s no minimum length of time you need to have been married.

This is where you and your partner come to some agreements about the future of your relationship. These normally cover things like child support and living arrangements. Many couples will come to a verbal agreement, but writing it all down allows a court to uphold the agreement if there’s a dispute.

You can write a separation agreement without a solicitor, but with something this important it makes sense to get some legal advice. Without it you could find yourself financially disadvantaged by the terms. In some cases legal aid may be available to help you draw up the agreement.

These methods can be used either before or during a divorce and help you and your spouse come to amicable agreements. And because mediation and collaboration take place outside of the courts, decisions can be made more quickly. A legal separation agreement or a divorce settlement can then be drawn up.

Mediation means using a trained professional to help you and your husband or wife communicate more constructively. They’re most helpful when tensions are high or communication has broken down.

Many solicitors are trained as mediators or use a collaborative approach. Collaborative law means you and your partner will meet individually with your solicitors to come to agree on terms.

To find out more about mediation and collaboration, get in touch with Beverley Johnson today.

Making the first steps to a divorce isn’t as scary as it can seem. You can begin divorce proceedings in the Court of Sessions in Edinburgh, or for an easier and cheaper option go to your local sheriff court. You can find the address of your local sheriff court at scotscourts.gov.uk

The ordinary method of applying for a divorce involves seeing a solicitor, which obviously takes time and money. Or there’s the faster and less expensive do-it-yourself divorce.

Ordinary divorce

This method happens in much the same way as you’d imagine:

  • You consult a solicitor to handle your case.
  • They collect evidence to support your reasons for divorce.
  • They draw up an ‘initial writ’ document. This covers the grounds for divorce and how you’d like the court to handle decisions regarding things like your children and property.
  • A copy would then be lodged in court and another sent to your partner.

If your partner agrees to the terms of the writ:

  • You and a supporting witness (normally a friend or family member) make sworn statements (affidavits) giving evidence of the contents of the writ.
  • The court will then grant the decree of divorce.
  • It will be unlikely that either of you will have to appear in court.

If your partner disagrees with any part of the writ and decides to defend the action in court:

  • The court will make decisions about what is best for your children and what to do with shared money and property.
  • Your partner might raise a cross action; this is where they begin divorce proceedings against you at the same time. This makes the divorce more complex and expensive.
  • In this case it’s essential to get legal advice.

This type of divorce is naturally more expensive than the DIY method and can take as long as seven or eight months.

The DIY divorce (or the simplified procedure)

This can only be used if:

  • Your marriage has broken down beyond repair, you’ve been separated for one year and you both agree to a divorce.
  • Your marriage has broken down beyond repair, you’ve been separated for two years and only one of you wants a divorce.
  • The divorce is the result of an interim gender recognition certificate.

It cannot be used if:

  • You have children under 16 years old.
  • You want the court to sort out financial issues between you and your partner.

It’s a good idea to see a solicitor or seek legal advice before taking on a DIY divorce to make sure you’re not going to lose money unfairly. You’ll still need to fill out the normal court forms and the whole process takes about two months. The forms are available from your local sheriff court or from the Scottish Court Service website.

You can get help with the forms from a trained solicitor like Beverley Johnson.

Children are one of the most common causes of dispute in a divorce and always a tricky issue. For the wellbeing of your whole family it’s essential to make smart, fair decisions about who will look after your children. Parents are often able to arrange for the children to have equal time with both parties. But much of the time the children will live with one parent and regularly visit the other.

If you and your partner can’t come to an agreement about what’s best for your children, a court can decide. This could be via a residence order deciding where the children should live, or a contact order deciding who the children should have contact with.

The court can also decide things like where the children will go to school. These decisions are almost purely based on the welfare and wellbeing of the children and will take each child’s wishes into consideration (provided the child is old enough to express them). Generally speaking, the court will strive to give both parents contact with the children. Unless of course one or both parents are unfit to take on the role.

Regardless of custody and living arrangements, both you and your spouse will be responsible for financially supporting your children. If you can’t agree on how you’ll both support your children you can ask the Child Maintenance Service (CMS) to take control and enforce child maintenance payments.

You can get advice on these issues from Child Maintenance Options (CMO):
Go to cmoptions.org.uk or call 0800 988 0988

You can also use the Scottish Government’s ‘Parenting Agreement for Scotland’ to help you make decisions about the care of your children:
Go to scotland.gov.uk and search for ‘parenting agreement’.

Income and finances almost always lead to difficult decisions during a divorce. When an income that used to support one household suddenly has to support two, tensions can run high.

And even though you may be living separate lives, while you and your partner are legally married you have to provide financial support to the other. This often leads to one party getting ailment (also known as maintenance) payments before the divorce is finalised.

A big part of divorce is financial decisions. You and your husband or wife can ask the court to make orders about money if you can’t come to a decision yourselves. When it’s possible the court will try to make decisions that limit your contact with your partner and give you a fresh start. So instead of your partner making regular support payments, they’ll be ordered to make a large, single payment.

If you can agree on the best way to divide your money and possessions you can present this to the court. If one of you has been depending on the other for money and cannot support yourself you may be able to apply for tax credits or benefits.

Joint bank accounts
Because both account holders can access the funds, it’s often a good idea to close any joint bank accounts and open separate ones. If this is an immediate concern you can ask the bank to freeze the account and stop your partner from taking out any money.

The family home
This is one of the biggest issues in a divorce. The best case scenario is that you and your husband or wife can come to an agreement about what should be done with the family home. If you can’t agree on what to do, seek legal advice from a solicitor or take a look at the Shelter Scotland website – scotland.shelter.org.uk

You each have the right to stay in the house unless otherwise stated by the court. The court has the ability to make a number of decisions involving the family home and they normally go hand in hand with orders involving money. If you decide to leave the home and have nowhere else to go you can apply for long-term accommodation from your local authority.

Rented accommodation and tenancy
If you can agree who should take on the tenancy of a jointly rented property, you can simply ask your landlord to transfer the tenancy to one name. If you can’t come to an agreement you can ask the court to make a decision about the transfer. This can involve transferring the tenancy to one of your names, regardless of whether you were joint tenants or if only one of you was the named tenant. The court can then make orders about rent arrears.

If you are the sole tenant you can get financial assistance with things like Housing Benefits and Council Tax Reductions.

Owner-occupiers
If you both own the family home it’s often best to come to an agreement between yourselves about what to do with it. Sometimes one of you will stay in the home and in many cases you’ll both agree it’s best to sell. Should one of you decide to move out, they’ll retain the right to move back in later on, but only for a limited period of time. As owner-occupiers, neither of you can sell the home without the other’s consent.

If you and your partner can’t decide on the best thing to do with the home, the court can decide for you. This could result in the house being sold and you and your partner splitting the profits. Or they can transfer either yours or your partner’s stake to the other. And sometimes the court will simply sell the house at a point in the future.

When children are involved, the court will focus on what’s best for them. And again, if you stay in the home and have a low income, things like Council Tax reductions are an option, as is help with your mortgage.

Possessions
There are a few simple guidelines to dividing up possessions that help with the tricky issue of claiming ownership during a divorce. For example, anything you and your spouse bought together while cohabiting are considered joint-owned. But anything you owned before you and your partner moved in together, as well as any gifts you’ve received, will remain yours after the divorce.

Pensions
This is a very complicated issue so it’s best to consult a specialist solicitor.

For more advice on any of these aspects contact Beverley Johnson.

This can be a tricky issue in a divorce. For example, if you split up or divorce less than two years after applying for settled status you may find your application hindered or refused.

In cases like this it’s best to seek specialist legal advice.

Unless you receive certain benefits, any type of divorce will mean paying court fees. If you qualify for legal aid you might be able to get help with the cost of a solicitor.

For more information about benefits and legal aid contact Beverley Johnson.

Go to scotscourts.gov.uk for benefits advice.

Go to slab.org.uk for legal aid advice.

Divorce affects a lot of people, so once you’re set on this path you should consider telling anyone it may concern. Such as:

  • Your bank
  • Your children’s school
  • Your insurance companies
  • Any relevant benefits office
  • Your landlord or mortgage lender

Beverley Johnson

As a specialist in this area of Scottish law, Beverley Johnson is perfectly placed to offer impartial, expert legal advice. Make sure you make all the right decisions and get in touch with her today.