Divorce in Scotland
Getting divorced in Scotland can be a complex process.
What follows is an attempt to set out some of the basic parameters, so you can get an impression as to whether your circumstances will make things more or less complicated relative to divorce.
Grounds for divorce
There is only one ground of divorce in Scotland: irretrievable breakdown of the marriage.
However, there are four ways you can prove that single ground and those are:
- One year’s separation with your spouse’s consent
- Two years’ separation without your spouse’s consent
- Adultery of your spouse
- Unreasonable behaviour of your spouse
If you can prove either adultery or unreasonable behaviour, you have an “immediate” basis for divorce.
The necessary conduct must be proved by evidence (“corroboration”) from at least one independent witness.
A simplified – and therefore cheaper – divorce procedure is available for couples who have no children under the age of 16 and are not claiming any financial provision on divorce (e.g. a capital sum) from their spouse.
The basis is either one year separation with consent or two years’ separation.
The cost of a simplified divorce is significantly lower than for a formal divorce.
If there are no pressing reasons for moving things forward more quickly, it can make sense to wait until any children are over 16 so that divorce can be obtained using this method.
Costs of divorce
Apart from the divorce itself, there are two additional areas where disputes are common and which will cause costs to escalate.
These are, firstly, child-related issues (such as residence and contact) and financial matters (typically relating to the division of property and other financial assets accrued by the couple during the marriage).
Often, any child-related and financial issues can be agreed by negotiation before the matter gets near a court. In that case, the agreed matters will be set out in a written Separation Agreement, which will be signed by both you and your spouse.
In that situation, the costs of a Separation Agreement and subsequent divorce are more easily predicted.
Of course, matters are not always within your control. Your spouse may raise a divorce action against you, in which case you may be forced to defend by raising child-related and / or financial issues which cannot – in your best interests – be left unresolved.
On the other hand, your spouse may refuse to engage in realistic negotiations and you may be advised to raise a divorce action – also making appropriate requests to the court relative to child issues and financial matters – to avoid complete deadlock.
We will always do our best to explain all the available options and provide a cost / benefit analysis as far as possible. These are always developing situations and your options must be kept constantly under review.
As we hope you can see from the above, you can ask for lots of different things in any divorce action, apart from divorce itself. You do not need a separate court action for each issue. So a divorce action could include requests for payment of maintenance (aliment), sale of the family home, payment of a capital sum and contact with your children.
Your spouse paying your costs?
The court has power to award expenses (costs) in most types of action and family law cases are no exception. In practice, however, awards of expenses are relatively unusual in divorce cases. This is partly because even initially contentious situations often resolve themselves by agreement (which usually involves each side paying its own costs) and partly because courts have a tendency in family cases not to award expenses. Each case is unique, though, and your solicitor will advise you on the prospects of being able to claim any expenses back from your spouse.
Divorce costs include payments to the court
Bear in mind that fees are payable to the court and your legal costs include these outlays as well as your solicitor’s charges for their work on your behalf.
How long will it take?
A simplified or otherwise uncontentious divorce will take approximately two to three months.
Disputed cases where issues relating to children, finances and property are involved are more difficult to predict in terms of timescale. By definition, in a contentious case, there is at least one other party to the dispute and it may be in their interests to spin things out as far as possible. However, an estimate of 9 to 12 months gives you at least a ballpark idea of the likely length of time.
Contact us for help
If you have any questions about possible divorce or any other aspects of our Family Law services, feel free to contact us via 01343 544077 (Elgin office) or 01309 672126 (Forres office) or by submitting a Free Online Enquiry.
All initial enquiries are free of charge and without obligation.