Many people don’t realise that divorcing in Scotland is not the same process or the same legal system as divorcing in England or Wales.

At Johnson Legal Family Law, we care about our clients. We recognise that a dispute with your spouse or partner is one of the most stressful life events you may ever deal with. We listen to and empower our clients to take control and move forward with their lives.

How can I establish that my marriage has broken down?

If you’re looking to get a divorce with a Family Law firm in Edinburgh, you need to establish to a court that your marriage has broken down irretrievably. This can be established in four ways and the procedure is the same for all courts in Scotland:

  • One year separation with your spouse’s consent
  • Two year’s separation without your spouse’s consent
  • Your spouse’s adultery, which means a sexual relationship with someone of the opposite gender
  • Your spouse has behaved so unreasonably you cannot be expected to continue to be married to them

Why is drafting a minute of agreement a useful part of the divorce process?

Before pursuing a divorce, it is worthwhile to take reasonable steps to try to agree all financial matters and arrangements for the care of your children. Once agreed,
these should be narrated in a carefully drafted contract known as a Minute of Agreement. This allows your divorce to proceed as an undefended court action which will save on costs.

A Minute of Agreement allows for a very flexible settlement, tailored to what you and your family need. You can agree decisions that might not be open to the court to order, safe in the knowledge that the Minute of Agreement is binding and enforceable.

Having your Minute of Agreement drafted by an expert family lawyer ensures that your settlement covers everything you need to think about. Under Scottish Law once you are divorced, it is extremely difficult indeed to have financial orders made by the court, so it is important to agree a financial settlement before you divorce, if possible.

What’s the first step in the divorce process?

The first thing we need to do is establish the “relevant date”, the date the spouses ceased living together as a married couple or the date a divorce action was served, whichever occurs first. This date is important because it is the date that all of your matrimonial property, the assets and debts acquired by the spouses, jointly or individually during the marriage is valued. Matrimonial property specifically excludes gifts from a third party or inheritances received by one spouse.

Matrimonial property can include bricks and mortar property, savings, life insurance policies, rights under pension schemes, bank accounts, timeshares and debentures. It also includes a house acquired before the marriage for use as a family home, as well as its contents, however generally not any other property already owned by either spouse before the marriage.

Why are our assets not split 50/50?

Scottish Law requires that the division of matrimonial property must be fair. This means that the starting point for dividing the net asset ‘pot’ is equally between the parties unless there is a very good reason for not doing so.

Such reasons may include the economic burden of caring after divorce for a child under 16 or the fact that one spouse gave up work to look after the other spouse and/or their children.

If you’ve taken a career break to look after your children, Beverley Johnson, Head of Family Law explains more in this TikTok video.

Do I have to go to court?

A marriage is a unique legal relationship. It can only be ended by the death of either spouse or an order of divorce made by the court.

A well-drafted Minute of Agreement will end all of your legal rights and responsibilities to your spouse, except those contained within the Minute of Agreement itself. You cannot marry anyone else but you are effectively married in name only. Some people do chose not to divorce after a Minute of Agreement is signed. If you do wish to divorce, we will be able to progress either an undefended action for a fixed fee or a simplified divorce if you are eligible. Both options mean you will not have to go to court.

For a simplified divorce you must have agreed your financial separation, be ordinarily resident in Scotland and have no children under the age of 16. You also must be separated for either one year, with consent of your spouse to divorce, or for at least two years.

Lawyer and Senior Associate Hayley Mitchell explains more about this in this TikTok video.

If you and your spouse cannot agree matters relating to your finances, a court can make orders to decide what is fair as part of an action of divorce. Court actions can be slow and expensive, so this is usually an option we recommend if negotiation has failed. If you have to start a court action, be reassured that we are experts. We will take you through the process step by step so that you are supported at every stage.

Services we will discuss with you during your divorce include:

Every single divorce case is different. We can work with you to consider what would be best for your circumstances with bespoke advice.

  • Mediation – You can use the services of a trained mediator who will work with you both to help you discuss a settlement. (CALM Scotland, Family Mediation Lothian).
  • Negotiation – We will give you advice on the law and explain how it applies to your circumstances. We will then help you reach an agreement with your estranged spouse. If this is successful, we can reflect your joint agreement in a formal document known as a Minute of Agreement.
  • Arbitration– If negotiation is unsuccessful you can agree with your spouse to bypass the court system and proceed to arbitration with Family Law Arbitration Group Scotland (FLAGS). Together, you will pick your judge and decide on how you wish to proceed. Arbitration can cut down the costs and reduce the time to bring matters to a conclusion, compared with traditional court proceedings.
  • Court Action– If you are unable to agree on a financial settlement or the arrangements for caring for your children, an action can be raised with the court. A court action can be raised at any time but usually we would recommend this is done when negotiation is exhausted. The court process can be stressful, expensive and protracted but our expert litigators will be with you every step to help you achieve the best possible outcome. For some tips on how to prepare for court, Divorce Lawyer Nyree Conway explains this in this YouTube video.

How do I start a divorce?

Getting the right legal advice early on helps to ensure that informed choices can be made and avoids a contentious, hostile separation.

Our Divorce and Separation Wellbeing page will also provide you with some guidance around how to support your mental wellbeing during a separation or divorce alongside signposting you to useful resources.

We offer all our clients a free, 15-minute consultation call with one of our Solicitors to determine how we can help. Call our office on 0131 622 8477, email [email protected] or submit your enquiry here.