Divorce & Separation
When a relationship ends it is important to think clearly about the best course of action for you and your family. This can often be very difficult, as you will be experiencing one of the most emotional times of your life. Alongside these issues are the legal complexities which surround your rights and obligations. Our expert family law solicitors are able to provide you with advice and assistance through this process as best as possible.
In order to divorce your spouse in Scotland, you are required to establish grounds of divorce. A divorce can be sought where the relationship has broken down irretrievably, which can be established on:
- Adultery; or
- Unreasonable behaviour; or
- One year’s non-cohabitation with consent; or
- Two year’s non-cohabitation without consent; or
- Your spouse’s gender being reassigned.
If you do not have children under the age of 16 and do not seek any orders in relation to the parties’ finances, you can apply to the Court for a ‘Simplified Divorce’. This is the quickest and easiest option available. However, it is still advised that you speak to a solicitor to prevent any complications arising and ensuring you are fully aware of your rights.
There is a different procedure where you and your spouse have children under the age of 16. In this case, you will be required to apply to the Court for an Ordinary Cause Divorce. This procedure is more complex, and the Sheriff is required to be satisfied in respect of the welfare of any children and that no financial orders are sought. In cases where there is no dispute in relation to a child’s welfare, matters can be addressed by way of Affidavit (a sworn statement prepared by your solicitor) evidence, without the need of parties to attend court.
Key things to consider when separating from your partner:
- Arrangements for children; and
- Financial matters
Financial Matters
A separation agreement with your spouse is beneficial for divorce purposes. A separation agreement is a formal contract, entered into by you and your spouse/partner, which details the arrangements for your children and all financial matters. Most cases are resolved through this agreement. This means, when it comes to apply to the courts for a divorce this can be lodged as a production, reducing your costs in comparison to requiring the court to resolve financial matters.
In Scotland, the law states that each party must receive a fair share of the matrimonial assets and liabilities (those which were accrued through the period of marriage). AC White Solicitors can support and guide you through this process.
Divorce & Separation - FAQs
It is only matrimonial assets that fall to be divided on separation. Matrimonial assets are the net value of all assets acquired during the period of the marriage including all property, money, pensions and investments with the exception of assets inherited or gifted from third parties. Usually, the net value of matrimonial assets is divided equally unless it is deemed to be fair to divide them differently. If the net value of matrimonial assets is to be divided other than equally the Court would take account of any economic advantage or disadvantage, the cost of childcare, adjustments to loss of support and the prevention of serious financial hardship.
This depends on a number of factors including whether there is a mortgage over the house, whether the mortgage lender would consent to the house being transferred and whether a fair division of the matrimonial assets can be achieved.
Cohabiting couples have certain rights on separation or death, but they are not the same as the rights of married couples. You may be able to make a cohabitation claim for a capital sum. If you are to receive a capital sum you will have to show that such a claim is justified either because you have suffered some form of disadvantage during your relationship or if you require to look after children. It is important to remember that cohabitation claims are subject to very strict time limits. A claim on separation must be raised within 12 months of the date of your separation and a claim on death must be raised within 6 months of the date of death.
The court has no flexibility, so it is important you get legal advice as soon as possible.
Divorce & Separation - Guide to Fees
In a separation it is preferable to resolve matters out with the Court if possible. This includes the negotiation of a Minute of Agreement which is a contract resolving the financial matters arising as a result of the Parties separation and can also involve child related matters.
Dealing with financial matters they include:-
- The transfer or sale of a property
- The valuing of all assets and negotiating their division
- The valuation and implementation of a pension share.
It is very difficult to provide an exact cost in advance as each case has a different set of circumstances and any advice tendered and work carried out is specific to your needs. If matters can be negotiated this will result in a Minute of Agreement being signed by both you and your ex-partner. As such a Terms of Engagement Letter will require to include a time and line charge, hourly rate and unit charge rate. Our hourly rate charge is £225.00 plus VAT (£270.00 inclusive of VAT).
If matters are fairly straightforward then the fee may be in the region of £1000.00 plus VAT of £200.00. If of moderate complexity the fee may be in the region of £2,500.00 plus VAT of £500.00 and if more complex with various assets, then the fee may be in the region of £5,000.00 plus VAT of £1,000.00, though may be higher depending on the number of assets to be taken into consideration and the duration of negotiations.
Over and above our fee you would have to pay all outlays required and this will include a share of the registration dues of the Minute of Agreement which would be: £22.00 if you are paying a one-half share of same. There may be other outlays payable to third Parties for example obtaining a valuation of a property or asset or to implement a pension share. These are payable to third Parties we cannot provide you with a costing of same and they can vary greatly.
