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
• Adultery
• 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:

1. 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).
2. 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.
3. 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.
4. 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 £265 (as of November 2024). Where we have been instructed by you in reaching agreement and drafted the Minute of Agreement for you, we will always offer you a discount on the fixed fee for an undefended divorce.

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 £151 (as of November 2024).

We offer a free 10 minute telephone call with one of our solicitors to discuss how we can help.

Frequently asked questions to consider…