Divorce in Scotland: Your action plan

The realisation that your marriage is over is very painful. It can be accompanied by high levels of conflict and mistrust. When you decide to divorce, you both need to make sensible decisions in order to minimise the impact on your children. We take you through the divorce process

 

Regardless of how angry, sad or hurt you feel try to remain civil when dealing with your wife. This helps to protect your children from emotional harm, keeps the legal costs down and makes your post divorce recovery less difficult.

Can we deal with the divorce ourselves?

Do-it-yourself divorce using the simplified Sheriff Court procedure is possible if there are no arguments over finances and no children under sixteen. If this isn’t the case you need to use the more complex Ordinary Procedure. It’s certainly possible for an articulate and intelligent person to do this without a solicitor, but it is not really recommended, since both the procedural requirements and the law relating to property and finances can be quite complex. You will also not be on top form at the time of your divorce for obvious reasons.

Whatever else you do, it is best to agree as much as possible between you – this will help protect children from conflict and save legal expenses for both of you. Trained mediators can help in the process, and solicitors should help with this too. However, you will still need to use the court to record the divorce itself.

Mediation: reaching agreement without the courts

Do I need a solicitor?

Making arrangements for divorce can be a fairly complicated process. You will need to deal with the division of assets and to make sure that neither party is disadvantaged. This is particularly important when children are involved. You may decide that only a solicitor can help you through that process.

Legal support

How do I get a divorce?

Either use the Do-it-yourself procedure if you qualify, or issue a Writ for divorce in your local Sheriff Court (or exceptionally in the Court of Session), which is best done by consulting a solicitor.

The court will accept one or more of the following grounds as proof:

  • that your wife has committed adultery and that you find it intolerable to live with her
  • that your wife’s behaviour has been so bad that you can no longer bear to live with her
  • that you and your wife have lived apart for at least one year and she agrees to a divorce
  • that you and your wife have lived apart for at least two years

If your wife is submitting the petition, she will have to prove one of the factors.

Will I have to attend court?

If you are not qualified for the simplified procedure, because you have children under sixteen then you will almost certainly have to attend a child welfare hearing and maybe other hearings too.

The family courts: residence and contact orders

What about our children?

If you can agree who your children will mainly live with (residence) and how and when you will both see them (contact), then there is no need to ask the court to make an order. If you can’t agree, then you may need to consider applying to the court for a residence or contact order. Either parent can apply for a residence order.

You may want to consider agreeing a parenting plan. Excellent guidance on this is found in the Parenting Agreement for Scotland (www.scotland.gov.uk/familylaw - click on “Publicationson the left). This sets out the way that you and your wife intend to make arrangements for your children after divorce.

How much will the divorce cost?

The amount you pay will depend on your financial situation and the nature and complexity of your case. As a general rule, the more you disagree about, the more it will cost, because you'll have to go to court. The major cost will be solicitors fees, and if you lose the argument over something in dispute you may well have to pay your wife’s legal fees for that, too.

Child support / maintenance

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Guest Saturday, 19 August 2017