We recommend that you resolve all your financial disputes with your spouse before you commence a divorce, which can then proceed without your having to appear in court. See Relationship Breakdown to find out how we can help you with a binding separation agreement. You should also agree on the arrangements for your children – see Children of Separated Parents. Once all is agreed, or if you can’t agree and need to resolve these issues in court, then we can deal with all aspects of the divorce procedure for you. In most cases we can quote you a fixed fee for your divorce, so you know what it will cost from the outset.
Thinking about dissolving your Civil Partnership? Download our factsheet.
We have some listed the answers to the most commonly asked questions below but please do call 01383 721141 and speak to one of our Family Law team for help and assistance.
What are the grounds for divorce?
All divorces are granted because of the irretrievable breakdown of a marriage but there are only certain ways that can be proved. The law outlines four circumstances which can satisfy the court that the marriage has broken down irretrievably - the party who wants a divorce has to prove that (1) the other spouse has committed adultery or (2) the other spouse has behaved unreasonably; (3) the couple have been separated for one year and the other spouse consents to the divorce; (4) the couple have been separated for 2 years, in which case the consent of the other spouse is not required. In each circumstance, there must be evidence from someone other than the couple.
Will I have to appear in court?
Most divorces are granted by the court without anyone having to appear in court. If both you and your spouse are in agreement about the financial aspects and the care of any children, then the divorce can be dealt with by a paper process which involves swearing affidavits to provide the necessary evidence. Even if spouses disagree at the outset of a separation, negotiations can usually reach a compromise to avoid a disputed court action (see our Factsheet Separating from Your Spouse or Civil Partner). Once agreement has been reached there is no need to appear in court. However, if there are issues about money or about children which require a decision from the court, then it is likely that you will have to appear in court to give evidence. If the court fixes a Child Welfare Hearing in relation to children of the marriage, then both parents must attend the hearing.
What is a Child Welfare Hearing?
A Child Welfare Hearing is a hearing conducted in court in private. All the adults involved must attend and this should be an opportunity for all issues about children to be discussed. Children do not usually attend, but they will receive a form asking them to indicate their own views and wishes. Our family lawyers can advise you about procedures in your case.
What is a simplified divorce procedure?
Where there are no children under 16 and no financial issues to be resolved, a simpler and cheaper divorce is available after one year if both spouses want to be divorced or two years if only one spouse wants to be divorced. In that type of divorce it is not necessary to involve a witness.
What are the grounds of dissolution of a civil partnership?
There are two grounds of dissolution in Scotland. The first ground is that an interim transgender recognition certificate has been issued to one of the civil partners. The second ground is that the civil partnership has broken down irretrievably. The circumstances which can satisfy the court that the civil partnership has broken down irretrievably are: the party who wants a dissolution has to prove that (1) the other civil partner has behaved unreasonably; (2) the couple have been separated for one year and the other civil partner consents to the dissolution; (3) the couple have been separated for 2 years, in which case the consent of the other civil partner is not required. In each circumstance, there must be evidence from someone other than the couple.
Will I have to appear in court?
Most divorces are granted by the court without anyone having to appear in court. If both you and your civil partner are in agreement about the financial aspects and the care of any children, then the dissolution can be dealt with by a paper process which involves swearing affidavits to provide the necessary evidence. Even if civil partners disagree at the outset of a separation, negotiations can usually reach a compromise to avoid a disputed court action (see our Factsheet Separating from Your Spouse or Civil Partner). Once agreement has been reached there is no need to appear in court. However, if there are issues about money or about children which require a decision from the court, then it is likely that you will have to appear in court to give evidence. If the court fixes a Child Welfare Hearing in relation to children of the relationship, then both partners must attend the hearing.
What is a Child Welfare Hearing?
A Child Welfare Hearing is a hearing conducted in court in private. All the adults involved must attend and this should be an opportunity for all issues about children to be discussed. Children do not usually attend, but they will receive a form asking them to indicate their own views and wishes. Our family lawyers can advise you about procedures in your case.
What is a simplified dissolution procedure?
Where there are no children under 16 and no financial issues to be sorted out, a simpler and cheaper process of dissolution is available after one year if both civil partners want the civil partnership to be dissolved or two years if only one partner wants the dissolution. In that type of dissolution procedure it is not necessary to involve a witness.
What are the main financial issues arising on separation?
There are two separate financial issues to be sorted out. One is the question of ongoing financial support including child support. The other is the question of how to divide the property accumulated during the course of the marriage or civil partnership. The principle is that matrimonial or partnership property should be divided fairly between the spouses or civil partners, but the definitions are complex and every case is different.
Written Separation Agreement - why bother?
Most couples want to end their relationship with the minimum of acrimony. We try to negotiate agreement for you on financial issues, always taking account of what you are entitled to from the assets (property, investments, savings, pensions) you both own. Your partner will require separate legal representation. If agreement can be reached we will draw up a legally binding separation agreement which you can both sign. This allows the divorce or dissolution of civil partnership to proceed immediately following the necessary period of separation without any implication of blame and with a minimum amount of difficulty and expense. Unfortunately, if there is a breakdown in negotiation, or one party refuses to engage in negotiation, the matter may require to be determined by a court.
What financial information is usually required?
Details of your and your partner’s:
Who has the right to stay in the family home?
Normally both husband and wife or both civil partners have occupancy rights in the family home. It usually does not matter which of the couple is owner or tenant. Both have the right to remain in the house. If there is a risk to the physical or mental welfare of one of a couple or any children caused by the behaviour of one of the parties then the court can be asked to exclude the person causing the risk from the family home. While a couple is married or in a civil partnership neither can automatically insist that the house is sold.
In a divorce or dissolution court action one of the couple can ask the court for continued occupancy rights or transfer of title or tenancy as part of the overall financial settlement.
Who can ask for financial support?
When a couple separate and one is working and the other is not or is on a lower income, the one who is worse off may ask their partner for financial support called aliment (maintenance), usually paid weekly or monthly. The amount depends on the needs and resources of both households. The one who has left the family home can be asked to pay towards specific outgoings to do with the house, for example, mortgage repayments. If children are involved, also have a look at Children of Separated Parents.
