If you’ve been contemplating divorce or if you’ve been presented with divorce papers, you probably have many questions and concerns, especially if there are children involved.
At Johnson Legal Family Law, we’ve compiled the top 10 frequently asked questions that we receive on a regular basis to help you to better understand the divorce process.
If you have any other family law related questions, you can ask us a question anonymously on our anonymous Q&A platform or contact us to arrange your free introductory call on 0131 622 8477 or [email protected].
No, you do not have to get married in Scotland to be able to divorce in Scotland. To divorce in Scotland, the court must have the legal ability, known as jurisdiction, to hear your case. This is usually based on where either you or your spouse lives. However, there are technical rules about this, and the court might have the ability to hear your case so it is important to get advice on this at the earliest opportunity.
All the financial issues arising from the separation must be dealt with by agreement or court order before the divorce can be granted. It is the last step in the process. The courts are busy and there are certain procedural steps which have to be taken, and therefore most contested divorces take about a minimum of nine months. It is not unknown, or even unusual, to take more than a year.
If there are no financial matters to consider, or they are dealt with by agreement, it is possible to be divorced within a matter of months as long as you have a legal basis for divorce (see question 4 below).
The cheapest way to divorce is using the simplified procedure, but this is not available to everyone. If you have children under the age of 16, you cannot use this. You also need to have agreed all the financial matters. You also need to be separated for one year, if your spouse will provide their written consent to divorce, or otherwise for at least two years. 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 £131 (as of July 2022). You do not need to have a solicitor assist you to complete this form. The sheriff clerks at each court can provide further guidance on the procedure.
If you have children under the age of 16 but have agreed all the financial matters, it is likely that your spouse will not want to contest a divorce. We offer a fixed fee package for an undefended divorce for £1,400 (plus VAT) and court outlays which are £233 (as of July 2022). Where we have been instructed by you in reaching an agreement and drafted the Minute of Agreement for you, we will always offer you a discount on the fixed fee for an undefended divorce.
If your divorce is contested, it is often very difficult to predict how much it will cost. Please speak to us directly and we will be able to offer some insight.
If you have been separated for two years, you do not need your spouse’s consent to divorce. You also do not need their consent if you are seeking to divorce as a result of your spouse’s unreasonable behaviour or their adultery.
If you cannot establish that your spouses’ behaviour led to the breakdown of your marriage or that they have committed adultery, and you have been separated for less than two years, then there might be other legal options open to you to address immediate issues like payment of spousal maintenance, which we call aliment, or selling a jointly owned property. We recommend you take advice at the earliest opportunity to explore what might be available to you in your circumstances.
In Scotland, to apply for a divorce you must be able to prove that your marriage has broken down permanently as a result of one of the following reasons:
- your spouse has committed adultery, which means they have had sexual relations with someone of the opposite sex;
- your spouse has behaved in such a way that you cannot reasonably be expected to continue to live with them as their spouse;
- you and your spouse have not lived together as a couple for one year and your spouse consents to divorce; or
- you and your spouse have not lived together as a couple for two years or more.
The court rules state that parties in a divorce need to go to court for the first hearing in a case, known as the Options Hearing. It is unlikely that you will be expected to speak, as your solicitor will accompany you at an Options Hearing and your solicitor will explain to the court what is agreed and what is in dispute. They might ask the court for more time to prepare your written case. They can ask the court to fix the future procedure to progress your divorce. The hearing is generally short and will be heard in a procedural court with lots of other cases listed for the same time. Some of these hearings are taking place in a physical court and some are being dealt with in virtual courts using video conference software called WebEx.
It is possible that you will need to go to court for the contested hearing about the orders you and your spouse are asking the court to make as part of your divorce. We call this hearing a proof. It is a civil trial where witnesses will come to court to give evidence. However, in the majority of cases the parties are able to agree matters before a proof. We will continue to negotiate your case and will always try to reach an agreement if this is possible.
Arrangements for children are usually dealt with separately. If you are unable to agree the arrangements for the care and upbringing of your children, then this may result in parties needing to attend court. Court is usually always the last resort and an application to the court is only required when all other avenues to reach an agreement have been exhausted.
In Scotland, the law says that the assets and liabilities which are considered to be matrimonial property should be fairly divided between the spouses when they divorce. The starting point for fair division is on an equal 50/50 basis.
However, the court has wide discretion and will consider all circumstances that could mean a 50/50 split was not fair. This includes:
- Has either spouse suffered a financial disadvantage to the other spouses’ financial advantage? This might be that one spouse has not worked to look after children, whilst the other spouse has been able to gain promotion throughout the marriage and leaves the marriage with a high-earning career.
- Will either spouse leave the marriage with a more significant financial burden for caring for the children of the marriage?
- Has either spouse depended on the financial support of the other spouse, and will they suffer hardship when the marriage and that support ends?
- Has either party inherited assets or brought assets or debts into the marriage that should be considered separate to the matrimonial property?
Every case turns on its own circumstances. It is important to get legal advice at an early stage to consider whether these arguments can be made for you or your spouse.
At Johnson Legal, we aim to encourage our clients to reach a financial agreement with their spouse wherever possible. The terms of that agreement are set out in a formal contract. Once this is signed, your own rights and responsibilities to each other will be only those in that contract and you will effectively be married in name only. You might need to divorce to be able to enforce specific financial agreements, like the sharing of a pension.
However, if this doesn’t apply to you and you don’t want to progress to a divorce after the agreement is signed then you do not need to. Some people will wait until their children are over the age of 16 to access a substantially cheaper divorce. Some people are happy to leave the matter with their spouse to progress.
If both parents are named on a child’s birth certificate, they will have equal parental rights and responsibilities. The court need only become involved if either spouse is asking for an order to be made about the children. The court needs to be convinced that is it better for an order to be made than having no order at all.
In the majority of divorces, parents are able to avoid going to court by agreeing on the important matters about the care and upbringing of their child or children. These might include:
- Where the child will live;
- How much time the child will spend with each parent;
- How each parent will financially support the child;
- Arrangements for taking the child abroad on holiday
If you can reach agreement, then we can make certain parts of the agreement legally binding by having a written contract. This is always recommended, as while you may be in agreement now, things can change in the future. You should be aware, however, that a court can always be asked to make orders about your children if this can be shown to be in their best interests. Having a written agreement can be very helpful to show what was agreed and the person wishing to change this will need to show why that change should be made.
When you separate from your spouse but are not yet divorced, you still have all the legal rights and responsibilities of a married couple. Your spouse could inherit on your death, and perhaps inherit substantially, because rights to inherit are one of the automatic rights that you gain when you get married. If you do not want your spouse to inherit from you if you die before you are divorced then one of the most important things you should do after separating is to change your will or make a will if you have not done this before. If applicable, you might also want to revoke the Power of Attorney that you have put in place in favour of your spouse.
If you don’t update your will, and you die before you divorce, a will that names your spouse as a beneficiary of your estate means he or she will still be a beneficiary. If they are named as the Executor, they would retain this role which would mean they can undertake the practical administration of your estate on your death.
If you don’t have a will at all, your spouse has automatic rights in law to inherit from you. This is one of the rights that are created when you get married. Those rights remain in place until you are divorced, or until you sign a contract with your spouse agreeing that neither of you can claims those rights.
You should also consider the title deeds to your house. Some title deeds will contain provisions known as a survivorship destination which is where the title says that surviving spouse automatically inherits the whole property. This can be formally discharged by agreement, and you should take advice on this when you separate.
Death is an absolute certainty, and whilst this isn’t a nice thing to think about, it is important to give due consideration about what could happen.
You can change your name at any time as long as you’re prepared to see a Notary Public (all the solicitors at Johnson Legal Family Law are Notary Publics) and sign a document called a statutory declaration. You must swear that you have renounced your old name and will be known as your new name going forward.