The decision to get divorced is not an easy one to make. On top of financial considerations, you will have to think about your children, property and assets, not to mention the legal concerns.
Claphams Solicitors offers a professional and friendly service, providing you with discrete and helpful advice in what we know can be a trying time. Our team are experts in dealing with all areas of family law and all kinds of divorce cases, including high net worth divorces. We will deal with you every step of the way to remove as much stress as we can from the process. Contact our family lawyers to find out how we can help with your divorce.
You will understandably have many questions about the divorce procedure, and we are here to answer these for you.
How long does it take to get a divorce in Scotland?
What is the simplified divorce procedure?
What conditions can I apply for divorce under?
Can apply for divorce on the grounds of being fed up?
Do I need to give evidence in a divorce?
What documentation do I need for a divorce?
How are child arrangements made in a divorce?
How are finances and property dealt with during a divorce?
Why are ‘out of court’ divorce agreements recommended?
How long does it take to get a divorce in Scotland?
The shortest time it can take for a divorce to be completed is three months. This is because the legal process involves timescales that cannot be worked around. While this can be frustrating for spouses who want the procedure to be completed as quickly as possible, there are justifiable reasons for these timescales. The three-month timescale is reliant on both parties’ full co-operation, so in cases where parties disagree, the timeframe is more likely to be between four and six months.
What is the simplified divorce procedure?
The simplified procedure, sometimes known as a ‘quickie’ divorce, is a faster and cheaper alternative to an ordinary divorce. Only certain cases qualify; there must be no children who are younger than 16 and no financial issues for the court to resolve. It must also be a year since the date of separation, which is the date the marriage came to an end.
If these conditions do not apply to your case, you cannot use the simplified divorce procedure.
What conditions can I apply for divorce under?
To be granted a divorce, you must prove there is an irretrievable breakdown of your marriage. For this to be accepted, at least one of the following four conditions must apply.
1. You must have been separated for over a year, and your spouse must consent to the divorce.
2. You have been separated for over two years.
3. Your spouse has displayed unreasonable behaviour.
4. Your spouse has committed adultery.
What is adultery?
Although same-sex marriage was introduced at the end of 2014, the definition of adultery remains unchanged from the Old Testament, meaning the act of adultery can only be committed between a husband and a woman, or a wife and a man. This means that gay couples cannot apply for a divorce on the grounds of adultery, and other forms of cheating in a relationship fall short of the conditions for adultery. Same-sex couples and those who have been cheated on in any capacity can apply for a divorce under the grounds of unreasonable behaviour.
What is unreasonable behaviour?
This covers a wide range of behaviours including drunkenness, dishonesty, gambling, protracted silences, attempts to control your movements or any form of infidelity. There are many situations in which people can apply for divorce on the grounds of unreasonable behaviour, as long as the behaviour is found to be unreasonable.
Who decides what is unreasonable?
By law, behaviour is unreasonable if it is ‘up with which the spouse cannot reasonably be expected to put’, as they continue to live in the same house. The behaviour does not have to be deliberate or intentional; it can cover something like the side-effects of an illness or accident.
Can I apply for divorce on the grounds of being fed up?
Before applying for your divorce, you must have been separated from your spouse for at least a year. Being separated does not necessarily mean that you no longer live under the same roof; it means that you are no longer living together as a couple. Evidence of separation includes no longer washing clothes or cooking meals for each other, or no longer having a sex life. This means that a married couple can be separated and still live together. Both spouses must agree they have been separated and there must be independent evidence available to support this.
Do I need to give evidence in a divorce?
Giving evidence in a divorce case is different to what you might expect. As it is a civil case, you will not be expected to provide evidence in a dock. Saying this, only a small number of cases will ever require that spouses give evidence under oath in a courtroom about the divorce. The reason for this is that most divorce cases tend to be unopposed, or if they have been called into court, it is for another issue.
What documentation do I need for a divorce?
You will need a number of documents, which will be sent to court. Both the marriage certificate and the birth certificates of any children in the marriage that are younger than 16 will need to be provided. While the documents do not need to be original copies, they cannot be photocopies, so proper copies must be acquired from the Registrars’ office at your local council.
How are child arrangements made in a divorce?
One of the most pressing concerns in many divorces is the children. If the spouses agree on where your children will live, how much time they will spend with each parent and the financial aspects of caring for them, this will make the divorce process much quicker and smoother.
However, if you are unable to agree, the court can make these decisions for you. A judge can issue residence and contact orders and make decisions on any other issues relating to your children that you and your spouse are struggling with. The overriding concern for the court in all cases is the welfare of the child or children. If they are capable of expressing their views, these will be considered. In most cases, the court will attempt to ensure children maintain regular contact with both parents.
How are finances and property dealt with during a divorce?
Your shared assets, known as your matrimonial property, covers all property you have accumulated during the marriage, up until the date you separated. Items you or your spouse owned before the marriage and property gifted to or inherited by one spouse are not included.
If the spouses agree on how to divide their jointly owned assets, they can create a separation agreement setting out what has been agreed and give this to the court. As long as the agreement is fair and reasonable, it will be accepted and the divorce will proceed quickly.
However, if you and your spouse disagree on how your shared assets should be divided, you can ask the court to make these decisions for you. Court orders are made based on the following principles:
Fairness
The guiding principle for the court is fairness, which means in most cases it will attempt to split the net value of your matrimonial property equally. However, in certain circumstances, the court may order unequal sharing, as long as this is fair.
Economic advantage and disadvantage
The court must also consider any financial benefit that one spouse has gained from the other during the marriage, as well as any economic disadvantage either spouse has experienced in the interests of the other. An example is if one spouse has given up their job to look after children.
Childcare costs
A fair account should be taken of the financial burden that either spouse has for looking after children under the age of 16.
Adjustment for lack of support
If one spouse has been substantially dependent on the financial support of the other during the marriage, the court will allow for an adjustment period of up to three years, during which some level of financial support will continue. The court will try to facilitate a clean financial break; so, if money is to be paid to one spouse by the other, the court can order this is done all at once rather than by ongoing payments (known as maintenance).
Financial hardship
If one spouse is likely to suffer significant financial hardship because of the divorce, the court may order the other spouse to pay maintenance or a lump sum. In this case, the court has the discretion to order any payments to continue for over three years.
Why are ‘out-of-court’ divorce agreements recommended?
Divorce can be a complicated procedure, so it is important to try to reach an ‘out-of-court’ agreement with your spouse before you begin divorce procedures. This is important as it allows spouses to reduce the number of issues that are to be contended in court, which will not only make the experience less stressful, but it will help save time and money. Even if you cannot speak to your spouse directly, it is recommended you contact each other through your lawyers to make sure that the court proceedings run as smoothly as possible, which will be of benefit to both parties.
Contact our Divorce Lawyers Clarkston, Newton Mearns, Giffnock, Netherlee, Eaglesham, Carmunnock, Stewarton Southside Glasgow
For divorce lawyers based in the Southside of Glasgow, contact Claphams Solicitors today by phoning us on 0141 620 0800 or make an online enquiry.
