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The divorce process and how the Collaborative approach could work for you

Divorce can be a tricky and difficult process. And let’s be honest it’s not something that you’ll do every day so the process itself will be unfamiliar. So, what do you do and how does it work?

In Scotland there are two grounds for divorce or the dissolution of a civil partnership (1) a recognised gender change of either party, or (2) the irretrievable breakdown of the marriage. For the irretrievably breakdown of a marriage, this can be taken to be established in an action of divorce by the following:

  • One year’s separation and your spouse consents to the divorce.
  • Two years’ separation without consent to the divorce.
  • Your spouse has committed adultery since the date of marriage.
  • Since the date of marriage due to your spouse’s Unreasonable behaviour you cannot reasonably be expected to continue to live with them.

Once you’ve decided that you want to end your marriage formally, you will have to apply to court to get a divorce. There are there are two different methods of doing this depending on your particular circumstances:

1. Simplified Divorce

The do-it-yourself or simplified procedure grants a divorce by going directly to your local Sheriff Court if you are able to satisfy the following criteria:

  • An irretrievable breakdown of your marriage based on one year separation with consent or two years’ separation without consent.
  • You have no children of the marriage aged under 16.
  • There are no outstanding financial matters to be resolved.
  • There are no other court proceedings underway which might result in the end of your marriage / civil partnership.


2. Ordinary divorce

Getting divorced using the ordinary method is more expensive than the DIY method. If there are children of the marriage under the age of sixteen the ordinary divorce process will be necessary so that the Court can satisfy themselves that the care arrangements for the children post-divorce will be satisfactory. An ordinary divorce can take around 8-12 weeks if it is an undefended action. However if the divorce is defended by the other spouse, it can take up to six months or longer in some cases.

Typically, it follows the process outlined below:

  • Step 1: Consult a solicitor who will collect evidence to support the grounds for your divorce.
  • Step 2: Your solicitor then draws up a document called an initial writ which is lodged in court and a copy is sent to your spouse. It sets out the grounds for the divorce and any orders you want the Court to make in relation to your children, money or property. Your spouse may accept the terms of the writ and decide not to defend the case.
  • Step 3: The Court will then ask you and a supporting witness to submit sworn statements, known as affidavits, containing evidence of the information in the initial writ. The supporting witness will usually be a friend or family member who is aware of your circumstances.
  • Step 4: Once the affidavits have been submitted, the Court will grant the decree of divorce. This means that it is unlikely that either you or your spouse will need to appear in Court.

If your spouse disagrees with any aspect of the writ and defends the action then the Court may have to decide on the arrangements for your children, property and money. Your spouse may also decide to ask the Court to granted orders in their favour in relation to the care arrangements of any children or in terms of the financial aspects of the parties’ separation when they lodge their response which is known as the Defences. This will make your divorce more complicated and will increase the costs. You will need to get advice from your solicitor.

It is a good idea to try to make some of the practical decisions before you go to Court. This will hopefully make the process less stressful and less expensive. But, however you go about sorting things out after you separate there are some things that need to be done before you can sign a separation agreement:

  • Making arrangements for the children – where they are to live and when they are to see the parent they are not living with.
  • Making sure you are able to meet your living expenses while everything else is being sorted out and in the longer term.
  • Identifying the assets which need to be divided, and their value.
  • Exploring the options as to how the assets can be divided.
  • If agreement is reached on all these issues a binding legal agreement (separation agreement) is signed.

Of course, it’s not always possible for separating couples to come to agreement on care arrangements for children, property matters or money issues. Traditionally this has always been resolved through an exchange of correspondence between solicitors, failing which the Courts. However, there are alternative options for dispute resolution including Collaborative Practice.


Collaboration

This is a non-confrontational approach to agreeing the legal, financial and practical arrangements for your separation and divorce. The Collaborative process can not only involve both spouses and their lawyers, but it can also involve financial neutrals and family consultants to help with resolving specific issues if needed. It allows a separating couple to reach this agreement through a calm and respectful discussion which takes place around a table. It removes the need for lengthy correspondence between lawyers or having the matter decided through a court action. The outcome of the process is that it allows parties to have reached an amicable agreement relating to the care arrangements for their children or their financial affairs by entering into a binding agreement and a divorce can then proceed thereafter. Collaboration is not however only available to divorcing couples but can be used to deal with various areas of family law.

The Collaborative Process is based upon key principles outlining within a Participation Agreement which all involved sign at the start of the process. It commits everyone including the professionals to act with respect and integrity throughout the process. The Participation Agreement also prevents the couple from instructing the collaborative lawyers to raise a court action if their negotiation fails. This means that all those participating in the meeting have an interest in reaching a successful conclusion.

So, if you want:

  • A civilised, respectful resolution of the issues arising from your separation.
  • To keep open the possibility of civil contact with your spouse/partner in the future.
  • To have the best co-parenting relationship possible with your spouse/partner.
  • To protect your children from the fallout associated with traditional court cases.
  • To retain control over the decision making as opposed to leaving it to a judge.
  • The opportunity to benefit from structured support from specially trained Family Consultants.
  • To understand and improve communication between you and your spouse
  • Support you to manage emotions, fears and hopes throughout the divorce and separation process.

The Collaborative Practice may work for you. Search our specially trained Collaborative Practitioners here