divorce lawyer scotland

Separation &  Divorce

The breakdown of a marriage or civil partnership can be a distressing time for all. My aim is to listen to you, understand your priorities and provide the right advice for your situation. You might be worried that you have to go to Court but, fortunately, the vast majority of couples who separate will never step foot inside a Court room.

Working closely with you, Amanda will speak with you to understand your personal situation and try to find a solution out with the courtroom that works for both parties.

 

Amanda has put together a video to explain the process of separation and divorce, talk you through some of the implications, and answer the most common questions…

Frequently Asked Questions

What are the grounds for divorce?

In order to divorce, you need to show that the marriage has broken down irretrievably in one of four ways:

  • One year separation: you have been separated from your spouse for one year and your spouse is prepared to consent;
  • Two years’ separation: you have been separated from your spouse for two years. You can then go ahead with a divorce without your spouse’s consent;
  • Adultery: if you are able to prove this, you can apply for a divorce immediately. However, if you have known that your spouse has committed adultery and you continue to live with them for more than three months, then you are deemed to have condoned that adultery and therefore cannot proceed with a divorce on that ground (This ground does not apply to the dissolution of Civil Partnerships); and
  • Behaviour: if you can prove that your spouse’s behaviour means that you cannot reasonably be expected to continue to live with them, you can then apply for a divorce immediately. Unreasonable behaviour does not have to involve physical abuse and can cover alcohol / drug abuse, gambling and emotional abuse.

The other ground for applying for divorce is where an interim gender recognition certificate has been issued to one of the parties – please contact me for more information.

How do we sort out our finances?

Financial matters generally fall into four categories:

  • Interim financials – how household expenses will be paid in the short term before an overall settlement is reached;
  • Child maintenance – how much will be paid, when payments will start and who will pay;
  • Spousal Support (‘Aliment’) – whether this will be needed and how it is calculated; and
  • Capital – establishing the assets (property, pensions, bank accounts, cars etc) and debts, obtaining valuations for these and negotiating how these will be divided.

In Scotland, the law states that each person is entitled to a ‘fair’ share of the matrimonial property (see question below).

 

In most cases, that will be an equal share, taking into account a range of factors. For example, have one of you gained / suffered an economic advantage / disadvantage during the marriage, or will one of you be left with the economic ‘burden’ of caring for your children?

 

However, it can be divided in different proportions if justified by special circumstances, including where money or assets accrued before the marriage have been used to buy assets during the marriage. Or perhaps you have a Prenuptial Agreement in place which will determine the outcome.

 

Even if special circumstances prevail, the Court has a wide discretion and will decide what is fair based on the circumstances of each particular case.

 

I understand that your circumstances are unique to you and am here to support you through the process.

What is matrimonial property?

Despite the word ‘property’, we are not talking exclusively about bricks and mortar.

 

Matrimonial property is defined as any assets accrued from the date of the marriage until the relevant date *.

 

There are exceptions to this, for example gifts or inheritance from a third party.

 

Assets accrued prior to the marriage are generally not included with the exception of a house bought pre-marriage, provided it was purchased to be the family home.

 

*The ‘relevant date’ is the cut-off date for calculating the valuation of these assets – this is an important factor in any separation or divorce and it is important to agree on this from the outset. This is essentially the date you stopped living together as husband and wife although not necessarily the date one of you left the property.

How long does the divorce process take?

There is no straight answer to this. However, it is far quicker (and cheaper) to resolve matters by negotiating, reaching an amicable settlement and applying for a divorce, than applying to the Court for a divorce and asking Court to make decisions relating to your children and finances.

 

Once an agreement has been reached on all points, a Separation Agreement is usually prepared. Once signed by both parties, this contract represents a full and final settlement of all matters. A straightforward divorce application can usually be granted in around six to eight weeks, provided you have grounds.

Do we both need a solicitor if we can agree things ourselves?

You can work through the process without a solicitor but, by doing so, cannot be confident that the agreement reached is in fact fair to you. The financial settlement you reach is hugely significant and will affect your lives going forward – as such, it is crucial to seek advice right from the start.

What about our children?

If you are parents, your children are likely to be top of your priority list.

 

First and foremost – how should you tell them? Clearly this is a matter of personal choice but presenting a united front is a must. Your children will most likely want to know where they will live, and how and when they will see each parent. Where possible, you should consider this before you tell them.

 

There is no law which states that the children should live with a particular parent and it will come down to what is in the best interests of the children. Depending on their age, their views should be taken into account wherever possible and they should be kept informed of certain matters as they develop. Shared Parenting arrangements are very common, with children splitting their time between both parents. Whatever you collectively decide, bear in mind that life will change for all of you and what works now may not work in five or 10 years’ time, so it is important to try and keep an open mind and a degree of flexibility.

 

From parental rights and child maintenance to relocating overseas, I have extensive experience of advising parents. I am also experienced in acting on behalf of the children themselves, obtaining their views (where they have been of suitable age and maturity to do so) and relaying them to the Court where their parents have been involved in Court disputes relating to their care.

 

For a free, no-obligation discussion about your situation, please get in touch

How much will it cost?

Additional support

It can become very expensive to instruct solicitors to negotiate care arrangements for children so if you are struggling and need additional support, the charity Relationships Scotland may be able to help. They have premises in Dundee and can offer mediation: familymediationonline.co.uk

 

Child maintenance calculator: gov.uk/calculate-child-maintenance

 

Relationships Scotland: relationships-scotland.org.uk

 

Clan Childlaw: clanchildlaw.org

How much will it cost?

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