Common myths and questions surrounding divorce

We can get a quickie divorce because there is nothing to sort out between us

Quickie divorce is a term which has been coined by the media and is often used to refer to divorces that occur after short periods of marriage. The reality is that here in Scotland a divorce can only be granted once all financial matters and any matters pertaining to children under the age of 16 have been resolved. It is also the case that a divorce can only be granted once certain conditions are met. in Scotland there is one overarching ground for divorce which is the irretrievable breakdown of marriage. This can be demonstrated by: • a period of separation of 1 year with the other parties consent; • a period of 2 years separation without the other party’s consent; • Adultery; or • Unreasonable behaviour. There is also a ground of breakdown of marriage upon the issuing of an interim gender recognition certificate. When people refer to a quickie divorce they are generally referring to what is actually known as a simplified divorce.

What is a simplified divorce?

For the court to grant a simplified divorce there require to be no children of the marriage under the age of 16 and no outstanding financial matters to be resolved. You must be separated for at least one year before the court will grant your divorce and to proceed on that basis the other party to the marriage must provide their consent. If they do not provide their consent, you will have to wait until you have been separated for 2 years. You can also use the simplified procedure if an interim gender recognition certificate has been issued.

Are there other ways to divorce?

Aside from periods of separation and the issue of an interim gender recognition certificate being issued, parties can rely on adultery or unreasonable behaviour. If it appears either of these can be established then you can proceed with an ordinary divorce. Ordinary divorce refers to the court procedure and rules which are used to allow the matter to progress through the courts. It involves the preparation of a document called an Initial Writ prepared by a solicitor who will lodge this at the court to commence the action.

If the writ is defended and a notice of intention to defend is lodged by the other party, a timetable will be issued by the court which sets out the procedure and the hearings at which parties will require to attend. If the process is undefended, the court quite often will allow the action to progress by way of affidavit evidence. This means that parties provide sworn statements via their solicitor which are lodged at the court in place of giving evidence in person. If the court is satisfied with the information contained in the affidavits, the court will grant the divorce without the need for parties to attend and give evidence in person.

Quite often actions for divorce raised on irretrievable breakdown of marriage as a result of adultery or unreasonable behaviour are defended by the other party. There is not a requirement for a period of time to have passed before such actions can be raised, however parties must be able to demonstrate that unreasonable behaviour or adultery has occurred. This can be quite complicated and there can be significant expense involved. It is important you take proper expert advice prior to raising a court action as this may not be the best way in which to proceed either financially or emotionally for you.

What if we have children under the age of 16?

Parties with children under the age of 16 need to use the ordinary procedure divorce process once they have resolved matters in respect of their finances and the children out with the court setting. These matters can be resolved by way of a minute of agreement sometimes known as a separation agreement. Ordinary divorce procedure has to be used so that the court can satisfy itself that no orders are required in respect of children of the marriage. If you have been unable to resolve care arrangement for the children, you can either raise divorce proceedings seeking orders for your children, or defend the action on that basis. Alternatively, you can raise stand alone proceedings in respect of orders for your children. It’s important that you take legal advice regarding these issues.

What if we don’t have children under 16 but we cannot sort out our financial matters?

If you are unable to resolve the financial matters arising from your separation, then you may need to consider raising a court action seeking financial orders. However, the same criteria applies – that there has been an irretrievable breakdown of marriage either established by – 1 years separation with consent, 2 years separation, adultery or unreasonable behaviour, or the issue of an interim gender recognition certificate. If adultery, unreasonable behaviour or consent are not forthcoming, then you will require to wait until 2 years has passed from date of separation.

We always encourage clients to resolve their financial separation out with the court setting where they are able to. They can do so by entering into a separation agreement (or minute of agreement) which sets out the way that finances are going to be dealt with following parties separation. We also understand that this is not always possible and recommend you take advice as quickly as possible if you are unable to reach agreement.

I’m not legally married but I have a common law wife/husband

There is no such thing as a common law wife or husband in Scotland. This is a common misconception that many members of the public continue to have. If you are not married or in a civil partnership then you are known as a cohabitant and a different legislative framework applies to your situation under the Family Law (Scotland) Act 2006. You do not have the same rights as those in a marriage or civil partnership and your rights upon separation are fairly limited and subject to strict time restrictions. Please see our cohabitation blog and page for more information.

I’m entitled to half of everything that my spouse has

While for those separating in marriages/ civil partnerships in Scotland, the legislation seeks to achieve a fair share of the matrimonial pot with a starting point of a 50/50 split, it is not correct to say that that will be a 50/50 split of every single asset/liability. We look at all of the assets and liabilities that parties have accrued throughout the marriage or civil partnership and put them together (the matrimonial pot) then see how that can be split between parties to effect a fair share of the matrimonial property. It is not correct to say that you will receive half of the value of a property, half th of a pension and half of any other asset. What we are looking at is the full amount of assets and liabilities put together to ascertain how a fair share of these can be put in place.

I’m not sure if I need a separation agreement

For those separating, it is important that the terms of the separation are recorded and the best way to do this is by entering into a separation agreement, also known as a minute of agreement. This is a written document which sets out the agreements in relation to finances, children, pets, and any other matters which may arise during separation. This document demonstrates to the court that you have resolved matters and can move forward to divorce.

It is important to have this record of your agreement, so if one party fails to meet their obligations under it, steps can be taken to enforce the agreement. It also prevents discrepancy, and prevents parties later stating that matters have not been resolved (which can happen!!) While we would always advise parties to follow the relevant legislation when coming to final agreement, parties can also come to whatever settlement they choose.

We would always suggest that before entering into any agreement you take independent expert legal advice, such as from us here at Caritas Legal, so that you fully appreciate your rights and obligations in law. For a no obligation initial discussion, please do not hesitate to get in touch.

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