Expert legal help with divorce
The end of a relationship is a very difficult and sometimes traumatic time. To divorce in Scotland you need to establish that your marriage has broken down irretrievably. This can be established in four ways:
- One year separation with your spouse’s consent
- Two year’s separation without your spouse’s consent
- Unreasonable behaviour
Before pursuing any ground of divorce it is extremely important to establish that all steps have been taken to agree all financial matters. These should be narrated in a document known as a Minute of Agreement. This allows your divorce to proceed as undefended and will save on costs. At Johnson Legal Family Law we believe that pursuing a defended action of divorce through the Court should always be a last resort and we work hard to avoid it where at all possible.
Under Scottish Law once you are divorced it is impossible to obtain an alimentary or capital award in your favour so it is important to agree a financial settlement beforehand.
The first thing we need to do is establish the relevant date, the date the spouses ceased living together as husband and wife or the date a divorce action was served, whichever occurs first. We then must consider matrimonial property, which covers all the assets and debts acquired by the spouses, jointly or individually during the marriage but before the relevant date, excluding gifts from a third party or inheritances.
Matrimonial property can include 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.
Scottish Law requires that the division of matrimonial property should be based on fairness which means that the net asset ‘pot’ is divided 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.
Every single divorce case is different. We can work with you to consider what would be best for your circumstances with bespoke advice. Services we will discuss with you include:
- 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 Separation 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. Our Fiona Mundy is a qualified arbitrator.
- Court Action – Very occasionally, as a necessary protective measure, we would raise a court in the initial stage but this is rare without some attempt to resolve matters by agreement. 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.
We can also help you with a simplified divorce, which is based on either one year of separation with consent of the other spouse or two years of separation without consent. You must have agreed your financial separation, be ordinarily resident in Scotland and have no children under the age of 16 to qualify to pursue a divorce under this procedure.
Johnson Legal Family Law can also help you with divorce in Scotland if you are:
- A Scottish person living abroad
- A foreign national living in Scotland
- Married to someone living in Scotland
We can advise to as to whether you can use our Scottish Courts and Law to pursue divorce here or indeed help if you reside outside Scotland and your spouse has raised an action in Scotland.
Costs and Fixed Fees packages
The cost of a divorce can run into tens of thousands of pounds depending on the complexity of the matters in dispute. We will always give you a regular indication of the likely fees and the amount of any outlays required in taking the advice from any experts such as actuaries or psychologists.
We are all too aware that sometimes the commercial decision dictates that it is far better to offer your ex-partner or spouse slightly more than you would otherwise wish simply to avoid legal fees escalating to the point where there is no winner – apart from the lawyers!
Not all divorces are defended and we can offer a fixed fee package for an undefended divorce where there are children under the age of 16 for £1,400 plus VAT and Court outlays which are £229 (as at April 2020).
The simplified divorce form can be downloaded from the Scottish Courts Website.
We can assist you to complete the application and lodge the papers on your behalf for a fixed fee of £375 plus VAT and the court outlay which is currently £128 (as at April 2020).
We offer a free 10 minute telephone call with one of our solicitors to discuss how we can help.
Frequently asked questions to consider…
Where a defended action proceeds through the sheriff court to decide issues in relation to either children and/or finances then it can take between nine months to a year from the start of the action to a final court hearing. However, this depends very much on the circumstances of the case.
Yes. You must have corroboration from at least one other person about incidents that he or she can recall having heard or seen for themselves behaviour that was unreasonable and they are willing to either give evidence in court (which is very rare) or by a written statement made under oath known as an affidavit.
That is true. Most of our cases are settled outwith court. We at Johnson Legal Family Law pride ourselves in maintaining that statistic which is indicative of how hard we try to resolve matters without litigation.
Yes you can. The court has a procedure which requires steps to be taken to demonstrate you have tried to locate your ex and/or his or her next-of-kin.
If we have everything ready such as the birth and/or marriage certificates, corroborative statements if required, then between six and ten weeks should see decree being granted.
It is irrelevant as to whether or not your ex does not wish to be divorced. If you as the Pursuer have grounds and can corroborate your particular ground of divorce as required by the court, then you can pursue the divorce and, in certain circumstances, seek the expenses of doing so from your ex.
It is not essential to agree all financial matters but, ideally, we should try to negotiate a financial settlement before proceeding with a divorce action simply on a cost basis. However, if it is not possible to agree, whether it is in relation to capital or maintenance, then it is beneficial and indeed essential to pursue an action of divorce.
No. The party bringing the proceedings has to rely on the other party’s adultery.
Not as long as there is a marriage certificate.
It is better that you have agreed the care arrangements for your children, but if this is not possible, they can be resolved within divorce proceedings.
Wise words from Beverley
“The best outcome financially for you is to negotiate a settlement covering all aspects of your separation that can be reflected into a document known as a Separation Agreement or Minute of Agreement. Once this has been signed you can proceed to divorce on undefended basis which will cut your costs considerably, as well as your stress levels”
We can help you right now
Our commitment to provide you with the best possible advice includes a free initial phone call with one of our experts. This allows us to fully prepare for your first meeting which we always offer at a fixed fee rate.
Recent Case Studies, Articles and Information
Society has changed enormously since 1995 when the last major piece of legislation about children came into law in Scotland. We now have same sex marriages, laws on surrogacy and [...]
Will the impact of the new “no-fault” legislation to reform divorce law in England and Wales encourage Scotland to make a change?
Under new legislation, couples in England and Wales can now apply for “no fault divorces” under new government proposals. This will come into effect shortly. Parties looking to divorce will [...]
Never mind the Brexit debate of “Will we or won’t we go?”, Family Law solicitors know that conversations about splitting up are taking place in households in Scotland. Splitting [...]
The recent Supreme Court appeal case of Owens v Owens has resulted in considerable public and media attention. Mrs Owens sought decree of divorce from her husband. It was Mrs Owen’s positon [...]
Here to help in a full range of family legal matters…
A stitch in time – consider investing in an agreement to reflect what you both want to happen financially, should your relationship come to an end.
Sort it without court costs – these contracts regulate your separation. From your children to financial matters, these allow you to proceed to an undefended divorce.
Sometimes you need smart experienced lawyers to guide you through the complex legal system to help you deal with the end of your marriage, and to ensure a fair division of all matrimonial property.
Your children are your absolute priority so they are our priority too. We can work hard to help you in all disputes about Parental Rights and Responsibilities including residence and contact.
The law offers limited protection for cohabitees, governed by strict rules. We can make sure you receive a fair deal at the end of your relationship.
At your most vulnerable, we will make sure you and your family is protected.