In Scotland, providing that the financial and child issues arising from a couple's separation have been resolved, divorce will be granted if the spouses have been separated for one year ( if the other consents to this) or two years. Alternatively, divorce can be granted on the basis of one party's unreasonable behaviour or adultery. The divorce itself is generally the last step in the process, which is outlined further below.
Divorce process in Scotland- Step 1: Legal advice
It is important to obtain legal advice regarding the financial and child law issues arising from the breakdown in a marriage. The solicitor whom you consult can only act for one spouse. It may be that the arrangements in respect of the children of a marriage ( such as where they will live and how often they see each of their parents) have been discussed and agreed between parties directly. Cooperation between parents is encouraged.
Turning to the financial matters, in advance of meeting with a solicitor, it is useful to obtain as much information as possible regarding the assets and debts held by you and your spouse at the time that you separated ( including supporting documentation if this is available). This will be discussed further at the meeting. At the end of the meeting, a 'plan of action' will be agreed. This will generally involve instructing your solicitor to write to your spouse or his/her solicitor to open up a dialogue regarding the issues in your case. Whilst each case is different, typically matters will be capable of resolution away from the court, usually by negotiation ( please see my previous blog on how to resolve disputes away from the court ).
Divorce process in Scotland - Step 2: Financial information
There will then be an exchange of financial information between the parties' respective solicitors with a view to determining the extent of the matrimonial 'pot' and how it ought to be divided. Valuations for the assets and debts held in the parties sole names as at the date on which the couple separated will be provided. Assets held in the joint names of the parties will be valued at the current date. Any issues regarding the children will also be discussed. Correspondence between solicitors regarding these matters will generally take place via letter/email or telephone call, but meetings involving solicitors only or solicitors and clients can ( and frequently do) take place too.
Divorce process in Scotland - Step 3: Formalities
Once parties have agreed how the matrimonial 'pot' is to be divided (along with any issues regarding the children) this will documented within a formal written agreement ( known as a " Minute of Agreement") which will be signed by both parties, who will be bound by its terms. There is, however, always the opportunity to revisit issues relating to the children as circumstances may change. The test that is to be applied in considering the arrangements for the children is what is in their best interests. Thereafter, divorce will be granted by the court. This will generally be granted 'administratively' without the need for any court hearings. The court will only become involved in granting the divorce itself and will not usually have sight of the agreement.
If the Collaborative process or mediation (referred to in my previous blog) is used to resolve a dispute, step 3 will be the same.
Where it is not possible to resolve the issues by negotiation a court action will require to be raised seeking not only divorce, but financial orders and also possibly orders in relation to the children. The court will then make a decision about these matters. Even where there is a court action, it is still possible to negotiate 'behind the scenes'. Court should, however, be regarded as a last resort.
Our divorce routemap outlines the key stages in divorce in more detail. You can download this here.
The family law team at Brodies is able to provide expert advice on all aspects of separation and divorce. We have a number of family law specialists who are accredited by the Law Society of Scotland. Get in touch - we're here to help.
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