Divorce is never easy. It is often portrayed on TV, film and other media, with missing details about what the process is like in real life. To add further to the confusion, there are some differences to the process here in Scotland.
In my 35 year career as a family lawyer I have seen how much relief it can bring when clients are clear about the process. Here are the top ten misunderstandings that I have encountered over the years.
1. A divorce application must be made in the country where the couple got married
It is very common for family lawyers in Scotland to apply for divorce here notwithstanding that the wedding was outwith Scotland. The courts will accept an application provided there is a link to Scotland by way of habitual residence for a sufficient period or the domicile of one or both of the spouses. Similarly the Scottish courts are able to divorce foreign nationals provided they meet the necessary residence requirements.
2. A divorce application must be made in person at the Court of Session in Edinburgh
Since the law changed in the 1980s local Sheriff Courts are also able to deal with most Scottish applications for divorce. In the vast majority of cases it is no longer necessary for either of the spouses to attend court in person. Most family solicitors will encourage their clients to try to find a resolution of financial issues, and those involving children, away from the courts.
3. A "common law" spouse has the same legal rights as someone who has been married or is in a civil partnership
The Family Law (Scotland) Act 2006 changed the law to allow cohabitants to pursue certain financial claims against former partners. While the Scottish Law Commission has recently recommended improvements to the current law reflecting societal changes, these will still not go as far as the rights available to a spouse or civil partner.
4. The "guilty" spouse who causes the breakdown in the marriage will be penalised by the courts
The conduct of one spouse towards the other will not have any bearing on the division of assets and liabilities unless the behaviour has impacted on the value of the assets. In negotiation (and if court intervention is required) the focus will be on the fair division of the matrimonial property irrespective of conduct.
5. If you get divorced then the family home has to be sold
While the courts do have power to order the sale or transfer of assets including the family home, it is much more common for agreement to be reached away from the courts, for example through negotiation or mediation. It is common for one party to retain the house and to take on any mortgage offsetting the equity in the property against other assets such as savings, businesses, or pensions.
6. Each party retains their own pension rights on divorce
While in many cases it is unnecessary to seek a formal pension sharing order, the importance of occupational or private pension rights should not be overlooked. It is often the case that pensions form some of the most valuable assets in a marriage. With expert advice it is usually possible to reach agreement as to pension sharing or offsetting against other assets.
7. Inherited property is ignored on divorce
The Family Law (Scotland) Act 1985 states that property held by one of the spouses at the date of separation which has been inherited or gifted by a third party does not constitute matrimonial property. If any inherited assets have been sold or transferred in advance of the breakdown of the marriage the proceeds of sale are often then used to acquire other assets, which will have to be divided upon divorce. Arguments can be presented for unequal division of the matrimonial property and the value of inherited assets can also be relevant when looking at the structure of the divorce settlement.
8. The husband has to pay his wife's legal fees for the divorce
This has not been the case in Scotland since the 1980s. It remains fairly unusual in divorce cases for there to be awards of legal expenses unless one party has acted unreasonably. The usual approach is for spouses to meet their own legal costs although creative solutions can be found to resolve funding difficulties.
9. Mothers have more rights to retain the children after divorce
Married parents usually have equal parental rights and responsibilities in respect of their children. In the event of a dispute the court will focus on the children's best interests rather than what is best for their parents. The children's views may also be influential in any decisions made in relation to their residence or how often they see the other parent.
10. The courts will decide the level of child maintenance
Since the early 1990s a government body known previously as The Child Support Agency and now known as The Child Maintenance Service regulates most maintenance applications where agreement cannot be reached between the parents. The courts in Scotland may continue to have the right to rule on child maintenance applications if the paying party lives and works overseas and can be asked to determine issues such as payment of school fees. For most parents it is preferable to reach consensus as to the level of child maintenance and to have this documented in a formal, written agreement prepared by solicitors, known as a 'Minute of Agreement'.
While I have attempted to highlight some common misunderstandings and to provide clarification, each case will turn on its own facts and circumstances.
This article first appeared in the Press & Journal.
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