January is known to bring a surge of applications for divorce, following what can be an extremely trying few weeks for couples over the festive period. According to the Ministry of Justice (MoJ), 455 online divorce applications were submitted between Christmas Eve and New Year’s Day this year; 26 people lodged for divorce on Christmas Eve, 13 on Christmas Day, 23 on Boxing Day and 77 on New Year’s Day. With many couples considering or applying for divorce, it is essential to know your options and what is best for your particular case, especially when children are involved.
Where to start
If ending a marriage is the only remaining option, it is necessary to go through the correct legal process. You can only get a divorce in Scotland if you meet the residence rules and have a marriage that is legally recognised in the UK. In order to obtain a divorce, you must prove that there is an irretrievable breakdown of your marriage.
An irretrievable breakdown of marriage can be proved when:
- you both agree to the divorce, and have lived separately for at least one year
- you do not receive consent to the divorce from your spouse, but have lived separately for at least two years
- there is adultery
- there is unreasonable behaviour
Which divorce procedure should I choose?
In Scotland, there are two different procedures for getting a divorce; the simplified procedure and the ordinary procedure. When you are the one applying for the divorce, you are called the pursuer. Your ex-partner, therefore, is known as the defender.
Simplified Procedure
The simplified procedure can also be known as the ‘DIY divorce’. The appropriate paperwork will need to be lodged with the Sheriff Court, however, the parties will not need to appear in court. This particular procedure can be used if all of the following apply to your specific case:
- no children under the age of 16 are involved
- no other court proceedings are taking place that could end your marriage or civil partnership
- no financial issues
- no indication that either party is unable to manage their affairs due to either mental illness or impairment
- no religious impediment to the remarriage of either party
- you have been separated for one year and you both agree
- you have been separated for two years and do not have the consent of your partner
Before choosing to go down the route of a simplified divorce procedure, it is crucial that you understand any long-term implications. Once your divorce has been granted, a claim for financial provision cannot be challenged, so contact Scullion LAW today to get first-class legal guidance on any financial matters before proceeding.
Ordinary Procedure
The ordinary procedure will begin with an initial writ – a document requesting a divorce – being lodged in court (by the pursuer) and then served on the other party (the defender). The defender will then have 21 days to decide on the following:
- Whether they wish for it to proceed or object
- Whether they want to make a claim for financial provision
- Whether they should seek an order concerning any children from the marriage
Within the ordinary divorce procedure, there are two sub-procedures that solely depend on whether the defender agrees with the pursuer’s suggestions about any children, money and property. If the defender agrees with the grounds of divorce and what to do with any children, money and property, then the case is known as undefended. However, if the defender objects, the case will be recognised as defended.
Undefended divorce procedure
An undefended divorce procedure is the less complicated of the two. The court will look at the paperwork that’s been submitted of the pursuer. Affidavits (sworn statements) will need to be prepared to be presented in front of a Notary Public or Justice of the Peace. The statements should provide details relating to any children and state the basis for divorce. If any children are involved, the court must be satisfied that adequate arrangements have been made and the welfare of the child or children have been carefully considered. If the court is happy with the Affidavits, a decree of divorce will be granted. If both the pursuer and defender agree to the divorce, and there are no issues involving either children or finances, the divorce can take around six months. If there are children involved, or the court is not satisfied with the arrangements being made, the process can take longer.
Defended divorce procedure
Unlike an undefended divorce action, the defender will have to request alternative orders to the court after they receive the initial writ. If the divorce is based on an irretrievable breakdown, the defender must explain why they do not agree with the grounds of divorce. There is likely to be a court hearing for a judge to decide whether the marriage has broken down irretrievably or not. If the court agrees to grant the divorce, it will issue a divorce certificate called the exact decree of divorce. As defended divorce procedures can be complicated and emotional, it is highly recommended you get the expert advice of a specialist divorce solicitor to defend and represent you.
Collaborative approach
Due to inevitable tensions between you and your partner, communication can be extremely challenging during a divorce. Your thoughts can be clouded as a result of anger towards the other party, making it almost impossible to move forward with your life. Staying out of the court means the collaborative divorce process is a much less hostile way of dealing with any issues surrounding your separation.
Both parties will each appoint their own lawyers before attending a meeting between yourself, your spouse, and both of your lawyers; a ‘four-way meeting’. All parties involved (both partners and their lawyers) will start the process by signing a Participation Agreement, acknowledging that no one will issue proceedings against the other party. This commits everyone, including the legal professionals, to act respectfully throughout the entire process.
The collaborative approach allows both parties to speak amicably about their main concerns, such as a child’s welfare or financial matters, and for these issues to be prioritised from the outset.
Should communication fail on any part, the collaborative process will end. Both lawyers would have to stop acting should you or your partner decide to go to court without the other agreeing. The collaborative approach is built on trust and will not work if you or your partner are not willing to take the process seriously.
Here at Scullion LAW, we will strive to ensure that any discussions are conducted in an atmosphere that is supportive and understanding while endeavouring to minimise conflict as much as possible.
Contact Scullion LAW Divorce Specialists, Glasgow & Hamilton
For almost 40 years, Scullion LAW has helped the people of Scotland through the divorce process from our bases in Hamilton and Glasgow, often in the most stressful and emotional of circumstances for our clients. If you are thinking about getting a divorce and need expert legal guidance, do not delay and get in touch with one of our professional divorce solicitors today via the contact page. We regularly service clients in Glasgow, Hamilton, Bearsden, Bishopbriggs, Milngavie, Bothwell, Strathaven, Thortonhall and across the West of Scotland.
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