Divorce Lawyers Glasgow, Scotland
Making the decision to get divorced is never easy. There will inevitably be financial considerations, there are often children to be taken care of and there may be property and assets to be divided, to say nothing of the legalities. At the Glasgow Law Practice, we have been advising the people of Glasgow on divorce and matrimonial law over the last 3 decades. Our Family Law Team has extensive experience of dealing with all types of cases from divorce and maintenance to cohabitation rights and civil partnerships.
Getting Divorced in Scotland - the Law
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- How do I get divorced?
- Does the same law apply to everyone?
- How long does a divorce take?
- What about "quickie" divorces?
- How do you commit adultery?
- Grounds for Divorce in Scotland - Unreasonable behaviour
- What if I don't have any grounds for divorce?
- Will I have to stand in the dock and give evidence?
- Which documents do I need to produce?
- How does it all get started?
- What if I can't use the simplified divorce?
- Will I need a lawyer?
- I don't want a lawyer's letter, I want a court order
- Will the minute of agreement cover the divorce as well?
- Will the divorce just be granted automatically?
- How is the affidavit prepared and what happens to it?
- What if I can't reach an agreement with my spouse?
- If my spouse won't settle the case, can they ask me lots of personal questions in court?
- Once I finally get divorced, what does that mean?
Getting divorced is both an emotional process and a legal one. We are not qualified to help you with the first, but in answering the most common questions about the second, we hope this will make it a bit easier.
Almost. Due to changes in the law at the end of 2014, allowing gay marriage, it no longer makes sense to talk about "husband and wife", so we will refer throughout to "spouses." However, there is one technical difference to the grounds of divorce, which is covered below. The law is also different for couples in civil partnerships.
The quickest it can be done, from start to finish, is three months. That's because the legal process involves built-in timescales which cannot be got around. These can be frustrating because spouses often just want to "get it over with". However, there are good and justifiable reasons for these timescales. Three months also assumes the full co-operation of both sides – if that's not guaranteed it's usually more realistic to allow four to six months.
When clients ask about these, they are usually referring to the Simplified Divorce procedure. This is much cheaper and faster than the usual process, but only certain cases qualify. There have to be no children under the age of 16, and no financial issues which the court has to resolve. They also need have allowed a year to have gone past since the marriage came to an end, which is the Date of Separation.
What if this doesn't apply?
Then there are four categories, one of which has to apply before the court will grant the divorce:
- You have been separated for more than a year and your spouse consents to the divorce,
- You have been separated for two years (in which case you don't need the consent of your spouse),
- Your spouse has behaved unreasonably.
- Your spouse has committed adultery.
The meaning of this word remains unchanged from the Old Testament and refers to an act which can only be committed between a husband and a woman, or a wife and a man. For that reason, it's a ground for divorce that is not open to marriages between gay couples. Any other form of "cheating" would, therefore, fall short in a legal sense, but would qualify under the alternative heading of....
Which is a broad category that covers any form of infidelity, but also includes drunkenness, gambling, boorish behaviour, dishonesty, protracted silences, or attempts to control your movements. There's even been a case where a husband's habit of starting, but never finishing, various DIY projects simultaneously was found to be unreasonable behaviour.
In whose opinion is it unreasonable?
The legal test is behaviour "up with which the spouse cannot reasonably be expected to put", by continuing to live in the same house. It doesn't have to be deliberate or intentional – for example, behaviour which was a side- effect of an accident or illness would be sufficient. But it has to be more than snoring or watching every single soap shown on TV.
Before you can get a divorce, then you need to be separated from your spouse for at least a year. People often think "separated" means no longer living under a different roof, but that's only one definition. A more accurate one is that the spouses are no longer living as a couple – that means no longer making meals for each other, no longer washing the socks, and no longer having a sex life. A married couple can, therefore, be "separated" while still living together. But this ground only tends to work if both spouses agree, and there is independent evidence to support this, as covered below.
In the first place, the dock isn't used in civil cases – it's only for those accused of crimes. You might feel your spouse should be there but that's not what divorce is about! And in only a tiny percentage of cases will the Sheriff actually hear the spouses give evidence under oath in the courtroom about the grounds of divorce. Most divorce cases are either unopposed or if they have to call in court, it's to resolve a dispute about contact or financial issues.
The marriage certificate and the birth certificates of all the children of the marriage who are under the age of 16 at the date the divorce is applied for will have to be sent to court. These don't have to be originals, but do have to be proper copies obtained from the Registrar's office at the local council. We can get these for you and they cost £15 each.
If your situation comes into the category of a Simplified Divorce, only the marriage certificate is required – the rest of the relevant information is provided in answering questions on a standard form which the courts produce. This is sent to your spouse. If the period of separation is a year, he or she will have to consent to this by completing the form and returning it you, or to the court. If the period of separation has been more than two years, their consent is not needed, but the papers still have to be sent to them, as the court will want to be sure that they are aware of the case. One spouse thinking they are still married does tend to invalidate a divorce, so "shortcuts" are not a good idea.
Instead of a form, an Initial Writ will be required, which sets out details of the spouses, children, finances, grounds of divorce relied upon, and a checklist of legal points. The financial issues include what each spouse earns and owes, what assets they have, and how much they want the court to order their spouse to pay to them. This can be a lump sum, or share of an asset such as a pension or the equity in the family home.
Yes, which is exactly why we always advise our clients to at least try to reach an "out-of-court" agreement with their spouse BEFORE they begin the divorce action. Even if they can't talk to each other, at least if both spouses go to see a lawyer, there can be a conversation through the lawyers about what can be agreed. Anything that can be done to reduce the number of contentious issues in court is going to save you time, money and stress.
If the conversations between lawyers resolve at least some matters, this will be reflected in a Minute of Agreement which, once it is registered, has exactly the same legal strength as a court order. If the other spouse fails to come through on aliment payments, for example, it can be used as a basis to freeze funds held in a bank account or seize property such as a car.
No, the case will still need to go to court, but after there is a Minute of Agreement the case will be very much shortened, and since there's unlikely to be any opposition, it's obviously going to be much easier.
The court will still want to see that the other spouse has been made aware that the divorce has been applied for, but it won't insist on the spouses coming to court. Instead, a sworn statement or Affidavit from one spouse and a supporting witness are all that the court requires seeing. The supporting witness is usually a close friend or family member who has been confided in, and is aware of changes to the living arrangements.
Isn't that going to be a bit awkward in adultery cases?
Yes. These have their own rules – it's a requirement that the person who it is alleged that the spouse has committed adultery with also has the legal papers served on them, which can lead to some embarrassment. Sometimes intentionally! Third Party confirmation in these cases tends to come from someone who can confirm there is a new sexual relationship or an admission by the spouse to this effect. Documentary evidence, such as from social media, can also be referred to in an Affidavit, but a hard copy print-out must be attached.
Because it's an alternative to oral evidence being given in court, the statement has to be "sworn" in front of a Notary Public, usually a lawyer, which gives it the status of an Affidavit. But the other side doesn't get to see it – usually, it's only for the Sheriff who has to decide whether or not to grant the divorce. It is not disclosed to the public.
As well as cost of the legal papers being drawn up and exchanged, this will require the case to call at least three times before the Sheriff makes a final decision, after hearing evidence. Some of the hearings are for the lawyers only but both spouses would need to attend at least once, along with their supporting witnesses.
How long does that take?
Usually, the hearings will be spread over a six to nine months, but some cases go on for much, much longer. However, even then, the majority of cases which are contested still end up being settled on the days leading up to the final court appearances, and the Divorce is granted without anyone having to give evidence in court about why the marriage has come to an end.
Not if he or she has a lawyer – any questions would have to be from the lawyer, and there are rules about what they can ask. If your spouse doesn't have a lawyer, any questions would still have to be approved by the Sheriff, so you couldn't be asked about something which was totally irrelevant, or just designed to provoke you. Part of your lawyer's role is also to protect you by objecting to your spouse being allowed abuse the court process.
It's a bit of paper. Unlike in England, in Scotland there is no distinction between decree nisi and decree absolute – there is simply an extract decree of divorce. This is not issued for at least two weeks after being granted, to allow for the extremely remote possibility of either side lodging an appeal. The document should then arrive in the post, with the marriage certificate, and the two should be kept together, in case you decide to get married again!
Just as no two families are the same, each particular case will have its own unique set of circumstances. Many people have to make major life changing decisions when they are in the worst possible frame of mind. Our family solicitors handle each case with skill and care from start to finish.
Contact our Divorce & Family Law Solicitors, Glasgow
Our friendly and professional divorce solicitors will handle your situation in complete confidence. Contact us on 01415529193 or fill in an enquiry form and we will contact you without delay. You can also call into one of our offices.