It is a sad fact that some marriages just do not work out. I understand that this then brings a whole set of worries surrounding the divorce process which can cause a great deal of emotional distress for you and your family. It will often be difficult to set aside any anger and hurt you may feel. At difficult times like these, I will offer you legal advice on divorce that is calm, professional and pragmatic. In Perth and need help ? Call me on 01738 245317.
I understand that this is a decision which you and your spouse will not enter into lightly. Aspects such as what will happen to the family home, future financial implications & where children will live etc are all considerations which need to be worked out by an experienced family law solicitor. The process need not be confrontational with ” winners ” and ” losers “. As a family law solicitor with 20+ years experience I am well placed to offer sound advice and the options at your disposal.
There are 4 grounds of divorce in Scotland
1. One year of continuous non cohabitation with the consent of your spouse.
2. Two year’s continuous non cohabitation, with no consent required from your spouse.
3. Adultery, this being sexual intercourse with a person of the opposite sex.
4. Unreasonable behaviour.
What then is 'unreasonable behaviour' ? It can be thought through in this way - ‘ Is it unreasonable, in the light of the behaviour exhibited by spouse A, to expect spouse B to continue to live with spouse A ? ” There is no prescribed list detailing exactly what is or is not defined as ” unreasonable behaviour ” Behaviour that may cause a gentler soul to head to their solicitor could be, in contrast, simply shrugged off by another party. The behaviour may be active or passive; behaviour exhibited by a spouse that is aggressive, controlling & domineering would appear, on the face of it, to be unreasonable. Evidence will need to be led in court by the pursuer showing example(s) of the unreasonable behaviour leading to the breakdown of the marriage alongside supportive evidence of the unreasonable behaviour from another witness.
In this instance you have to use the Ordinary case procedure for divorce. If you can agree about the grounds for divorce and what to do about the children, money and property the divorce can go to court as an undefended case. Statements, known as affidavits, are taken from family or friends stating that the marriage has broken down in such a way that you cannot be expected to continue living with your spouse. The expectation here is that the Sheriff will be satisfied with the gravity of the statements and grant divorce. If you cannot agree about the grounds for the divorce, or issues about the children, money or property the divorce application will go to court as a defended case. Here the parties will, after much preparation by their respective solicitors, state their case in person before the Sheriff. The Sheriff will consider the case before him through a combination of affidavits, pleadings, reports and witnesses will appear in person at in court and give supportive evidence.
An award of Legal aid in Scotland depends on your personal financial circumstances and the merits of your case. Legal aid is not automatically offered as a right when raising an action for divorce. Your eligibility would be assessed on application to the Scottish Legal Aid Board with the decision communicated to you. If you do not qualify for legal aid each party in the divorce would pay their own expenses. The total cost of a divorce varies according to how quickly the parties can come to an amicable solution. When a divorce moves from an undefended to a defended action, with the court being asked to decide on a financial settlement for the parties’, then costs will inevitably escalate.
Matrimonial Property is defined in s.10 of the Family Law (Scotland) Act 1985 and includes:
All of the property belonging to the parties, or either of them at the relevant date which was acquired by them either:
Before the marriage for use by them as a family home or as furniture or plenishings for that home; or
During the marriage but before the relevant date.
An example of matrimonial property would be a house & furnishings bought prior to the marriage with the intention of providing amenity as a family home. Once married, cars, jewellery or furnishings bought would be matrimonial property. Pensions, ISA’s and shares may also be matrimonial property with the caveat that only a proportion of the investment would be considered as matrimonial property, namely the proportion accumulated whilst married.
The phrase ‘ relevant date ‘ refers to the date of separation, that being the date when parties ceased cohabiting as husband and wife. This is the date at which valuation of all matrimonial property will commence.
Are there exclusions ? Gifts from third parties and inheritances are generally excluded from being included as matrimonial property. So jewellery from an aunt’s estate would be excluded. In the course of a marriage if a gift or inheritance from a third party is used to buy, for example a holiday home, that gift or inheritance has changed form with the holiday home classed as matrimonial property.
As an experienced family lawyer I can advise & draft a schedule of matrimonial property and provide advice concerning fair division.
A debt would be considered matrimonial if the sum spent was for the benefit of both parties’. One can think of a sum spent to refurbish a kitchen or bathroom. Despite the debt being associated with Party A who arranged and paid for the work, clearly both parties benefit from the improvements. The contract for the home improvements & any finance required would show that the intention was for both to benefit. The converse would not be true if Party B spent thousands on golf clubs or a motorbike – these purchases are for the benefit of Party B exclusively, even if Party B used a joint credit card to pay for the purchase.
The Family Law (Scotland ) Act 1985 works on the principle that the net value of matrimonial property should be shared fairly between the parties. The net value of the matrimonial property is the value of the matrimonial property at the date the parties’ stopping living together minus any debts incurred during the marriage. For example, if a couples only matrimonial property was a house bought during the marriage with an outstanding mortgage, then the net value of the matrimonial property will be the selling price of the home minus the outstanding loan. The intention of the law is to provide for equal sharing, but unequal sharing may be reached, if for example a party has continued to pay the mortgage in sole names or added to the fabric of the home.
All outstanding issues relating to money, property and children need to be agreed between the parties. Agreement on these matters can then be drafted by the parties’ solicitors then incorporated into a binding ‘separation agreement’. Divorce can follow thereafter on the grounds of separation for one year with consent of your spouse or separation for two years with no consent.
The answer here is ‘depends…’ If you have parties who, for whatever reason, simply cannot come to agreement then agreement could be a long way off. The Court may have to decide matters which will lengthen the process. Experience as a family lawyer has shown me that parties initially, can and do argue over issues which with hindsight have not aided their cause. The divorce process can progress in a streamlined and less stressful fashion for those parties who are committed to dealing with those issues of importance with a co-operative frame of mind.
I hope this article provides you with an understanding of family law in Scotland and how this shapes the divorce process. Whilst not a comprehensive overview family law in Scotland it should offer food for thought. With many satisfied clients throughout Perth and Perth & Kinross, sound advice for your divorce is at hand. Contact me, Louisa J Wade, for professional and pragmatic on divorce.
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CONTACT WITH CHILDREN
RESIDENCE OF CHILDREN
PARENTAL RIGHTS & RESPONSIBILITIES
FINANCE PROVISION ON DIVORCE
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Louisa J Wade
Family Law Solicitor
2 Ardchoille Park
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