In Scotland there are two grounds of divorce:
That there has been a recognised gender change by one party;
the irretrievable breakdown of your relationship.
The irretrievable breakdown of your relationship can be evidenced by one of four factors:
The parties’ non-cohabitation for a period of two years;
One party’s adultery;
One party’s unreasonable behaviour.
In Scotland you cannot get divorced until you have dealt with your finances and made arrangements for your children. This is because your right to make a financial claim against your spouse ends on divorce. For that reason, couples will usually attempt to agree the terms of the division of their assets and have that agreement written down. Thereafter they can divorce if they can satisfy one of the four reasons above.
If you and your spouse don’t have any children under the age of 16 years (and you have divided your assets) then you can divorce using a simplified procedure. You complete a form with your relevant details, attach your marriage certificate and a cheque (currently for £123) and your divorce will be granted in a matter of weeks.
If you and your spouse have children under 16 (and have divided your assets) then you must raise an action in Court seeking divorce. This is a fairly straight forward procedure, however, provided your spouse does not oppose the divorce or want to make any claims.
We can advise you which procedure is right for you, and also help you come to an agreement about your finances if that is necessary. Of course, for some couples agreement is never possible and you can then raise an action in Court for divorce and orders regulating the division of your assets at the same time and the Court will then deal with all matters for you.
The breakdown of a relationship can inevitably result in financial uncertainty for many couples. Where will you live? Can you afford to move out? Can you afford to separate? How will you pay rent? How will you pay for food and clothing?
Married couples (and those in a civil partnership) have an obligation to support each other financially for the duration of their marriage. This means until the date divorce is granted and includes the period of time you are separated but remain married. This financial support is known as “aliment” in Scotland, or more commonly “spousal maintenance”. Cohabiting couples do not have any obligation to support each other.
If you are in financial need when you separate, we can help you by giving you advice on the circumstances in which your spouse should pay you money and how much. That will be based largely on your needs for financial support going forward balanced with your spouse’s ability to pay (or his resources).
Normally spousal maintenance will come to an end on divorce, but there are circumstances when it will continue even after divorce where it is necessary to allow one party to adjust to their new life or if it is to alleviate serious financial hardship. This is known as “periodical allowance”.
We can advise you in relation to all spousal maintenance, both before and after divorce, to allow you to remain financially secure in the short and longer term.
There are a number of principles embedded in Scottish family law legislation which has the aim of ensuring a fair division of assets for separating couples. Those principles are as follows:
Matrimonial property (the property acquired between the date of your marriage and the date of your separation) should be divided between you fairly;
“fairly” will often mean “equally” unless there are factors present which make an equal split unfair;
Any economic advantage or disadvantage towards one party may be taken into account in the division of assets;
Any property owned pre-marriage, or inherited or gifted, which is used for the purposes of acquiring matrimonial property may be taken into account in the division of assets.
Scotland has a “no-fault” system of divorce which means that, whatever the reasons for your divorce and however badly one party may have behaved to the other, the financial settlement will be dealt with based on the above principles and one party will not be penalised for their behaviour.
In dividing the assets on divorce there are a number of options open to you, or to the Courts. You can seek a capital sum, which is the payment to you of a lump sum of money. This lump sum can be paid in one go or in instalments. You can seek a pension share, where a portion of your spouse’s pension is carved off and put into a pension pot for you to access at your retirement age, you can seek a property transfer where a property/house is transferred from your joint names into your own name.
With the range of circumstances or factors which could be competing within your relationship the law can be complex. We can advise you in relation to all these matters and help you reach a resolution which provides the best possible outcome for your family.