Common questions about divorce
If you’re thinking about getting divorced, have already started proceedings, or want to understand the process on behalf of a friend or family member, you may find it useful to read through the most commonly-asked divorce questions that we regularly answer.
What are the grounds for divorce in Scotland?
Divorce is granted in Scotland when there is an irretrievable breakdown in a marriage. This is normally established by proving one of the following grounds of divorce:
- Separated for more than 12 months with spouse consent
- Separated for more than 24 months with no consent
- Unreasonable behaviour
However, even if you have a ground for divorce, a divorce will not be granted if issues are outstanding relating to children under 16 from the marriage, or if finances are outstanding relating to the marriage.
What is the difference between a separation and a divorce?
When a couple decides that they no longer want to live together, they separate. Separation can be within the same home if a party starts to sleep in the spare room for example. Often however one of the parties finds alternative accommodation. This is separation and the date of separation is a matter of fact and is traditionally determined by when the parties stop living together as husband and wife. Divorce on the other hand is the legal ending of a marriage by way of a court application. This is a formal procedure that after being completed allows the parties to remarry.
Do I need a divorce?
Simply put, there are few advantages to a divorce apart from being able to remarry. When parties separate, they often come in and ask for a divorce. Well, do you need a divorce? Only if you want to remarry. The finances relative to a relationship are more commonly dealt with by way of a separation agreement. A separation agreement is a contract entered into between the parties that gives them both financial independence. The agreement can deal with the family home, bank accounts, shares, pensions and credit cards together with any support money required and even child access. Usually, parties enter into an agreement and then wait for a ground for divorce. The most commonly used grounds are 12 months post separation with the other party’s consent or 24 months post separation without the other party’s consent.
What are my options other than a divorce?
Divorce can be an expensive option and the only benefit of raising a court action for divorce rather than dealing with matters by way of a separation agreement is that after divorce you are free to remarry. A separation agreement, carefully drafted and signed by the parties will give the parties financial independence and can also detail the ongoing contact arrangement for the child or children.
What is “unreasonable behaviour” in divorce law in Scotland?
The unreasonable behaviour must be after the date of marriage. The physical condition of the spouse in itself doesn’t constitute unreasonable behaviour, however, if the spouse refuses to take precautions to reduce the condition then this refusal to take action could be deemed unreasonable behaviour. The simplest example of this would be an incontinent spouse who refuses to wear protective underwear. In order to rely on this ground for divorce, a spouse must prove that the behaviour in question was such that it cannot be reasonably expected to continue to cohabit with the other spouse. There is a reasonableness test here and such behaviour as snoring may not constitute unreasonable behaviour. The behaviour that normally constitutes unreasonable behaviour is physical or verbal abuse.
How long does a divorce for unreasonable behaviour take?
The length of time varies, even if the ground can be proven, depending again on whether there are children under 16 and whether all finances relative to the marriage have been settled. Divorce will not be granted until these matters are all settled. However, from start to finish, after the raising of an action for divorce, it will certainly take quite a few months and closer to a year to conclude.
How many divorce and separation cases have Austin Lafferty Solicitors handled?
Austin Lafferty Solicitors have been in business for over 30 years and in that time we have handled well over two thousand separation and divorce cases.
How much does a divorce cost?
The divorce in itself can be inexpensive and quick but what is expensive is the time it takes to reach a settlement with regards to the children and/or the finances. As couples fail to reach an agreement and if the court ultimately needs to arbitrate on matters, then divorce can become expensive.
How much does a divorce cost in Scotland?
The costs of a divorce or dissolution of a civil partnership can vary considerably, depending on whether it is defended or undefended, and the amount of work that solicitors have to do. A settlement negotiated out of court between parties advised by solicitors and leading to a Minute of Agreement cannot be costed in advance as there are so many variables, but any final cost less than £1,000 is a very low fee indeed. When going to court, the average cost of an ordinary undefended court divorce without financial and other claims will amount to about around £1,000.
Should court action have to be raised to deal with financial and/or child care matters, then once again this cannot be costed in advance but will almost certainly cost many thousands of pounds. The sheriff decides who has to pay the costs of the action, unless the parties have agreed on how to meet the legal costs. The court can also decide that each partner has to pay their own costs. Should an amicable agreement be reached then each party will be liable for their own legal fees and any outlays incurred.
Can I get a divorce for a fixed price?
Yes, a fixed price divorce is an option. Ask your solicitor to agree to a fixed price before instructing her/him.
Divorce and family
What will happen to my children if I divorce?
When it comes to deciding what happens to children when separation or divorce occurs, there is a slight difference between married couples and unmarried couples. In Scotland, married couples have the same parental rights and responsibilities. What that means is that there is no default position as to what parent the child or children live with after separation. However, with unmarried couples, they have the same rights if the child was born after 4 May 2006 and the father’s name is on the child’s birth certificate. If the child was born before that date, then an unmarried father has no parental rights and responsibilities.
A couple should agree on a pattern of contact with the child after separation that fits in with both of their new routines and what they consider to be best for the child to give them stability and ensure their wellbeing. If they can’t agree, then in the first instance the parties should consider mediation to allow any difficulties or disagreements to be discussed and hopefully overcome. As a last resort, if this fails then there will be no option but to apply to court and the Sheriff will decide what is in the child’s best interests.
Who do the children live with after parents separate?
In Scotland, the position for children born since 2006 is the same whether or not the parties are married as long as the father’s name is on the birth certificate. In these cases, a married mother or father and an unmarried mother and father have the same rights. The rights and responsibilities of both parents are the same. In practical terms, if a father refuses to return a child to the mother the only course of redress is for the mother to apply to the court for an order to regulate matters and likewise, if a mother refuses the father contact with the child then the father has to apply to the court for an order to regulate matters. There is no difference based on the sex of the parent.
What happens to the family pet?
Family pets can cause arguments. A bit like with a car (sorry animal lovers) one must ask the question, who owns the pet? Who bought it and when and what was the intention? If you own the pet, you keep the pet but matters are rarely that simple. Many bitter augments can arise over family pets at separation.
Divorce with assets
Do we need to split all of our assets when we separate or divorce?
The matrimonial assets are the assets accrued generally after the date one is married and before the parties separate. These assets are all valued and their value totalled and then the debts built up after the date of marriage and before the date of separation are deducted. This is defined as the net matrimonial assets. Each asset thereafter doesn’t need to be split. What usually happens is that, if possible, the parties retain the respective assets in their name and the party who has the lesser amount receives a balancing payment from the other party.
Are the matrimonial assets split 50/50?
The current legislation doesn’t state that the assets are split equally, it states that there should be a fair split of the assets. A fair split of the assets is an equal split unless there are special circumstances. There are 5 special circumstances listed in the current legislation:
- An agreement between the parties such as a prenup
- The source of where any funds came from and this could be savings a party had before marriage,
- Any destruction, dissipation or alienation of assets by one party and this could relate to such matters as gambling by one party whereby they have used a lot of funds or assets to funds the addiction and therefore reduced the level of matrimonial assets,
- The nature of the matrimonial property or use made of it
- Expenses incurred by either party concerning the divorce.
Do we need to sell the family home and can I be forced out?
There is a difference in the answer to this question depending on whether or not the parties are married. If they are married then both parties have occupancy rights to the family home irrespective of whose name is on the title. If the parties are cohabiting however then the party whose name is on the title will have to apply to the court to gain occupancy rights. Without a ground for divorce then either spouse will have a period of 2 years to continue living on the property. After 2 years one of the parties can force the issue and apply for a divorce on the grounds of being separated over 2 years and this will start the process whereby the court may decide if the house is to be sold. Even after the 2 years is up however and one party has applied to the court, matters may still take many months to resolve before the house is to be sold, if at all, depending on the decision of the sheriff.
Can we be separated but still live in the same house?
Separated spouses can still live under the same roof. The date of separation is determined by when the spouses stopped living together as husband and wife. This is often the time when one of the spouses leaves the marital bedroom and moves to the spare room or indeed sleeps on the sofa. In terms of divorce, the parties would be considered to be no longer cohabiting at that stage. The absence of sexual relations is important in considering whether or not the parties are cohabiting.
Do I need to keep paying the mortgage after I leave the family home?
A mortgage is a debt payable by the person named on the papers signed at the time it was taken out. This may be one party or both parties. If only one party has taken out the mortgage then it is only that party that the lender can sue if the mortgage remains unpaid and ultimately the lender can then force the sale of the house. If both parties enter into the mortgage then the lender can sue either or both parties to collect any sums owned and again force the sale of the house. The mortgage payments may still however be taken into account when splitting the matrimonial assets. If one party keeps paying the mortgage after separation then he or she may seek to recover half of those mortgage payments back from the other party when considering a fair division of the matrimonial assets.
How will my business be affected by a divorce?
Matrimonial assets are defined as assets accrued after the date of marriage and before the date of separation. A business started during this period will accordingly come within this definition and will require to be valued, and its value will need to be considered when the matrimonial assets are being divided. If on the other hand the business was started before the marriage, but underwent a degree of restructuring during the marriage, then this could convert a business from non-matrimonial to matrimonial property.
Is my spouse due a share of my pension?
Pensions are considered matrimonial property. If a party builds up a pension during the period of marriage then that pension would be part of the matrimonial assets. It requires it to be valued after they separate and the other party who doesn’t have the pension is due a share of the increase in value of the pension from the date of marriage to the date of separation. If both parties have a pension then both pensions will need to be valued and if there is a difference in the relative values then a compensating payment will have to be made. The compensating payment can be a capital sum or a pension share depending on the circumstances. A pension share, once implemented, will mean that the other party receives a separate pension, independent of the spouse’s pension, when they reach retirement age.
Am I liable for my partner’s credit card?
A credit card is a debt like a mortgage but one that isn’t secured over a home. A credit card debt is payable by the party who signed up for the card. You may be an additional card holder but the additional card holder won’t be liable for payment of the debt. The named party who receives the statement will need to pay the monthly payments and if they stop the credit card company will only pursue the card holder for the debt. The credit card is likely to be matrimonial debt however to be taken into account when working out the net matrimonial assets, if it was taken out after the date of marriage and before the date of separation.
I am due an inheritance from a relative, is my partner due a share or this?
Inheritance is not included in the definition of matrimonial property and therefore is not included, therefore whatever is inherited cannot be claimed by a separating partner. However, one must be careful because if you inherit a sum of money, whilst that money is excluded, if you buy a car with the money, the car becomes a matrimonial asset. The safest thing to do with inherited funds is to retain them in the form you received them.
Do I need to sell my car?
Car ownership is different from being the registered keeper of a car. A registered keeper, i.e. the person named on the DVLA V5 certificate does not denote ownership. It is a matter of fact who owns the car. Who signed the sales agreement and who paid for the car? Is there a credit agreement associated with the car and if so, what type of agreement is it? If it is a hire purchase agreement then the car will be owned by the credit company. What was the intention of the parties? Was it a gift? All of these factors will determine who owns the car.
Can I keep my wedding ring?
Gifts from third parties are not included in the definition of matrimonial property and therefore do not need to be considered. However, gifts to either of the parties are included therefore a wedding and/or an engagement ring would be included in the definition of matrimonial property. In practical terms these matters are not normally valued and split, parties usually agree to retain their respective rings.
Do I need to appear in court in person if an agreement can’t be reached with my ex partner?
Ultimately, if an agreement cant be reached and the parties need to apply to the court to settle matters then it is likely that you will need to appear in court and give evidence regarding the areas that are in dispute.
Do personal details get published about my divorce court hearing?
A court hearing is a public forum and often the substance of cases, including the parties' names, are reported in the media.
What does a Sheriff consider when coming to a decision in a divorce case?
The Sheriff in deciding cases will use current legislation and previous cases to decide what a fair split of the assets is. The Sheriff will adjudicate on all matters that are in dispute between the parties.
What % of Scottish divorce and separation cases actually end up in court?
A small percentage of our cases end up in court, certainly less than 10% in our experience. Other firms that offer Legal Aid may find the percentage to be higher.
If you’re considering getting divorced be sure to get in touch with one of our experienced divorce solicitors today. Our team are experienced in all aspects of separation and divorce in Scotland and will be able to help guide you through the process.
Contact us and get your own divorce questions answered or read our guide to divorce and separation online today.