If you receive recorded delivery post and have to sign for a letter whose envelope has a “return” address of a Sheriff Court, you may find someone is raising a court action against you.
Scottish court actions usually have a notice period of 21 days. In other words, you have 3 weeks within which to decide how to react and, in particular, whether to defend the action.
It can be a very stressful time.
Elsewhere, we have considered what action you need to take if someone sues you following a road traffic accident.
If the proceedings are raised by your spouse and seeking a divorce, what are some of important points to have in mind? How do you decide whether you should defend a divorce action or not?
The usual disclaimer applies here. All situations involving divorce are unique in some way. While you can’t use an article like this as a substitute for getting proper legal advice, we hope that what follows will help you to a better understanding of the main issues which can arise.
Three main types of issues
In any divorce action, there are three main areas where issues can arise –
- The divorce itself (e.g. based on a minimum period of separation or alleged unreasonable behaviour);
- Financial provision on divorce (e.g. capital payments; property transfer orders; or pension sharing orders (or multiples of these)); and
- Children (i.e. issues in relation to residence and/or contact)
First issue: divorce
If the action is only requesting divorce, you need to check whether the writ has a request for an award of expenses (costs) against you. This can only happen if the basis of divorce is a fault ground (e.g. unreasonable behaviour). If the basis is a period of separation (one or two years), there should not be a claim for expenses.
Where there is a claim for expenses, it may be possible to negotiate a reduction or elimination of costs. This is something best dealt with through a solicitor.
If the writ only seeks divorce, you must also consider whether your own interests require that you “counterclaim” for an order in relation to fair division of matrimonial property and / or children.
Second issue: financial provision on divorce
In general, the shorter the amount of time that husband and wife have been married and living together, the less likely it is that there will be significant amounts of matrimonial property to be divided up.
If the divorce writ contains a request for some form of financial provision, you will almost certainly need to defend the action and get advice from a solicitor as to how best to respond. It may be that you will need to put in a request of your own, as part of the court action.
If the divorce action you have received makes no mention of financial claims against you, it is still vital to consider whether there would be any basis for you making a claim for financial provision against your spouse. In practice, the divorce action is the only chance there is for financial claims to be made on each side. If you would have a valid claim for financial orders but fail to make it as part of the current divorce proceedings, you will almost certainly have lost your chance to claim. Missing the deadline could have very significant financial implications for you.
You need to consider whether there are any matrimonial assets which are still in joint names. If there are, it would be best to consider how to either sell them or transfer ownership to one of you. It is not generally a good idea to leave any property in joint ownership after a divorce, if it can be avoided.
Third issue: children
Where there are children of the relationship, the court will only make orders about residence and/or contact if it is absolutely necessary. If the action is for divorce only and there are children, the writ will explain the arrangements for the children as regards residence and contact – i.e. that everything is working out by agreement between the spouses, so the court does not need to make any orders regulating child residence or contact.
As the recipient of a divorce writ, you need to consider your own position in relation to your involvement with your children. Where anything is unsatisfactory about the present arrangements from your perspective, you probably need legal advice as to whether you should be defending the action in order to ask for a formal order in relation to children.
Along with the divorce writ, there is warrant of citation, which will set out the notice period (usually 21 days), among other things. You also receive a notice of intention to defend (“NID”), which you must return to court, with the correct fee, within the time limit, if you want to defend the action to any extent. You may get other forms too but the warrant and the NID are the main ones.
Summary of the 3 ways
Firstly, check to see whether the “crave” of the writ (below the names and addresses of you and your spouse on the first page of the initial writ) claims expenses from you.
Secondly, see if there is any claim against you for some form of financial order on divorce. Most importantly, consider also the reverse: might you need to make such a claim against your spouse?
And, thirdly, note any request for an order in relation to your child or children – and think about whether you might need a residence or contact order to safeguard your interests and the interests of your child or children.
If you find the answer is “yes” to any of these points, it’s a strong indication that you should get legal advice and that you may need to defend the action.
How we can help
If you have a question about anything discussed in this article, please get in touch with us. We are happy to deal with any queries.
All initial enquiries are free of charge and without obligation.
Links you might like
- The Family Law section of our website, which has further information about separation and divorce.
- An article about the Scottish Legal Complaints Commission’s Consumer Guide to Choosing a Family Law Solicitor.