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:
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:
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:
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:
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.
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:
The Collaborative Practice may work for you.
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