How to Get a Divorce, Scotland – Everything You Need to Know

At MyBump2Baby, we are proud to work with family law solicitors and financial advisors throughout the UK. Today we have an expert article featuring Judith Higson – our family law solicitor in Glasgow. Judith explains how to get a divorce in Scotland and what to expect in your first divorce meeting. If you are not located in Scotland specifically, we have an article on how to get a divorce in the UK. If you would like more information about the costs of divorce, you can read the article: How Much Does a Divorce Cost. We recorded a podcast with Judith at Scullion law on how to get a divorce in Scotland, you can listen to it here.

Hello, I am Judith Higson, Executive Director at Scullion LAW, Accredited Family Law and Child Law specialist, Accredited Mediator, Collaborative Lawyer with over 17 years’ experience and Head of the Family Law Department at Scullion LAW.

We are an Award-winning Legal 500 firm with offices in Glasgow and Hamilton.

Scullion LAW, established in 1979 have an experienced Family Law team consisting of me, Judith Higson Executive Director, Laura Cousins (Trainee) and Liz Semple (Legal Secretary).

Throughout lockdown, we have found ourselves busier than ever with enquiries about separation and divorce coming in every day.

In this article, I outline what to expect from your first meeting with us about your separation and divorce and I also explain how to get a Divorce in Scotland.

Please note that at the moment, due to the global pandemic, we are using WhatsApp, Facetime & Zoom. I am sure we can accommodate any other platform which best suits your needs and makes you feel most comfortable. Please just ask.

 Firstly, let’s clarify the difference between separation and divorce in Scotland.

 Separation happens when you are no longer living together as husband and wife.

Divorce is an order granted by the Court which extinguishes all financial claims which can be made as a result of the Separation.

 

How to divorce in Scotland? What should I expect from my first meeting?

 

These are frequently asked questions so, we thought it would be helpful to let you know what you should expect when you book a first meeting with one of our friendly family lawyers at Scullion LAW to discuss the separation and divorce process in Scots Law.

 

We appreciate that this may be the first time you have ever met with a lawyer and we understand that there might be a lot of built-up emotion, anxiety, uncertainty, confusion and perhaps also some relief. Don’t worry. We are here to help you.

 

You are in safe hands. Trust in us.

 

We’re here to support you and guide you through the process. Our ordinary procedure is to ask you some questions (outlined below), take the time to listen to you and then advise accordingly. The initial meeting should last around an hour.

 

We will confirm the date and time of the meeting with you by email. Before our meeting, you will be asked to provide 2 forms of identification. A photo ID can be a photo or scan of your passport or driving licence. You will also be asked to provide proof of your address by way of a utility bill or bank statement issued in the last 3 months. You will be asked to email these in advance of the first meeting to a member of our team. Please also have them at the video meeting to hold up to the camera.

 

One of the first things we will do during the meeting is confirmed some of your personal details, the usual things you would expect, such as your name, your address, if you have lived at your address for less than 5 years and if not, what your previous address was, your contact number, email address and your date of birth.  We will ask you if you have been advised of the option of mediation and if you haven’t we will explain that to you.

 

We will ask you to provide the name and address of your spouse/civil partner/ex-partner/former cohabitant and the names and dates of birth of your children.  We will ask you to confirm if there are any court dates fixed.  One of the other things we will ask you is whether or not you are an existing client of ours and if not, how you have come to choose us.

Details of your relationship

 

If you are married, we will ask you the date and place of your marriage. If you have been living with somebody, we will ask you how long you have been living together. We will ask you if you already have a Separation Agreement and whether or not your spouse/civil partner/ex-partner/former cohabitant has legal representation and if so, if you know of the firm that they have instructed

 

Are there any children in the relationship?

 

We will then go on to talk about any children of the relationship, either natural children or adopted children. We will ask you if any of the children have any vulnerabilities or any disabilities and ask you to describe to us the details of the care arrangements for the children, who they are living with, and how often they see the parent that they are not living with.  We will talk about any difficulties there might be about those arrangements.

 

We will be clear with our advice. The court expect parents to share responsibility of their children and parents have a duty to talk to each other, and make every effort to agree about how they will raise their children. The best interests of any kids involved should always come first. Even when you separate, that responsibility continues. Have a look at our website for more information: https://scullionlaw.com/what-the-family-courts-expect-from-parents/

 

We will discuss the welfare of the children with you and listen as you share what you consider to be in their best interests.

Date of Separation.

In law, the date of your separation is the date you are no longer living together.

It is an important date whether you are married, in a civil partnership or has been cohabiting. Taking marriage, first of all, we will look at the date of separation because of all of the matrimonial property is usually valued at that date. I will come on to talk about matrimonial property in a moment.

 

When you have been cohabiting and you separate, you have to make any financial claims arising from the separation within 12 months from the date of the separation and so it is really important to identify the date of separation at the very beginning.

 

Getting to know you and understanding the personal details of your relationship.

In order for us to get the clearest picture surrounding the date of separation, we may have to ask you some personal details such as were you sleeping in the same bed, were you having sexual relations, were you socialising together, were you doing each other’s laundry, were you eating together, cooking together, what do friends and family understand to be the case.  Sometimes the date of separation is clear, sometimes it is less clear and that is something we will ask you about early on in our first meeting.

 

We will also ask you if there have been any periods when you have got back together since the date of separation because there are some rules around how long you can get back together for before the date of separation is displaced.

 

We’ll explore all of that with you in our meeting.

 

If you are just exploring your options and considering a divorce

 

Don’t worry. You decide on the next steps to take and when to take them. We can help you look at your options if all you need is some advice around what can happen if you decide to move forward. We don’t do anything until you have asked us to.

 We understand that our clients are often facing a challenging time in their lives so we have partnered up with the best coaches and therapists around to offer all our new clients a free no obligation introductory call with a coach or therapist. Please let me know during the meeting if you are interested in this.

 

Matrimonial property

 

When we look at a separation involving a married couple or civil partners, the law provides that the met matrimonial property is shared fairly between the parties.

The matrimonial property consists of all of the assets and liabilities which have been acquired by either or both of the parties during the marriage and which exist as at the date of separation.  Fair usually means equal but there are special circumstances which might be put forward by one person, one party, to argue for an unequal split.

 

We will run through the most common of these with you. For example, is there a Pre-Nuptial or other Agreement regulating the division of any of property on separation? Is any of the property used in connection with the running of a business? Have either or one of you destroyed or gotten rid of any matrimonial property? Finally, if one of you has contributed more than the other when an asset has been acquired, then that’s something which can be taken into account in the overall division. For example, if one of you put a larger deposit down on the house or if you invested your inheritance into the property.

What about gifts or inheritance?

 

Gifts or inheritances are not part of the matrimonial pot but if funds from a gift or inheritance have been used to acquire an asset during the marriage whilst the asset becomes part of the pot we can argue that the value of it should be excluded because of where the funds came from. This is something we will discuss with you in more detail if it applies.

 

If you need more information about Pre-Nuptial Agreements and minutes of agreement please click on the hyperlink above or email [email protected] with any questions you may have.

 

Cohabiting couples.

 

When it comes to people who have been living together (cohabiting) and separating, any financial claims being insisted on require to be made within 12 months of the date of separation.

 

Simply put, claims can be made on the basis of 2 things.

 

1. If one of you has the economic burden of childcare for any children of the relationship or
2. if one party has been economically disadvantaged and the other party economically advantaged and there’s no offsetting of that disadvantage

 

The 12 months tick away pretty quickly. We will usually attempt to reach a negotiated settlement for you but it may be necessary to raise court proceedings to protect your claims if a settlement has not been reached by around 9 months or so since you separated to ensure there’s plenty of time to raise the court action needed. Generally speaking, the law for cohabitants is pretty uncertain and claims on separation are much more limited than for spouses. What the law tends to do is compare your financial position at the beginning of a relationship to the financial position at the end of the relationship. If there has been any overall economic disadvantage that’s not offset by any economic advantage, then the court can order a compensatory payment to you.

 

Assets/Liabilities and other property

 

We will ask you about the property that you have in joint names or in each of your sole names, be that a home or rental property, bank accounts, savings, investments,. details of any companies owned by either of you and whether or not you each have pensions. Whilst married couples who are separating have clearly defined claims upon the value of any pensions accrued during the marriage, the position is less clear for cohabitants however these assets can still form part of the overall financial picture.

 

We will also look at cars and debts, loans, car finance agreements and any other property that you or your partner own in your sole names or in joint names.

 

Married/ Civil partnerships/ child maintenance

 

When you have been married or in a civil partnership, there are various matters that the court can take into account when dividing matrimonial property.

We will consider with you whether or not one person has been economically disadvantaged, for instance, if a wife has given up a career to look after children and/or whether one of you will have the economic burden of child care.

 

The economic burden of childcare can be offset by the payment of child maintenance and we will discuss with you whether or not child maintenance is being paid.  The minimum payment required for the payment with whom the children do not reside is calculated with reference to the Child Maintenance Service calculator.

 

Spousal aliment

 

When you are married and then separate, there is an obligation which can arise between the spouses for the payment of spousal aliment.  Spousal aliment is a regular payment from one spouse to the other to cover day to day living expenses.

The obligation to pay spousal aliment ends on divorce and the amount to be paid depends on each party’s needs and resources.

During the first meeting we will look to identify with you if this is something we need to look at in more detail.

 

Periodical Allowance

 

A periodical allowance is a payment post-divorce for usually of maximum of 3 years to allow the spouse who was financially dependent on the other spouse during the marriage, to adjust to their new financial circumstances.  If you are married, we will look at you and your spouse’s incomes to consider whether or not we need to give you advice around a periodical allowance being included in the division of the matrimonial property.

 

A Separation Agreement.

 

The ultimate aim in any separation is to enter into a Separation Agreement which is the legally binding document which sets out the terms of your agreed settlement.

Once a settlement has been agreed the Separation Agreement is drafted. This is then sent to your ex-partner or their solicitor. Sometimes the document is revised until both parties are content with the terms.

The Separation Agreement is then signed by both parties and sent for registration to become as enforceable as a Court order. You will receive an Extract bound copy of the document.

It is better for you to have a solicitor prepare a Separation Agreement rather than doing this yourself as, once signed, the Separation Agreement is a legally binding document which has important legal consequences.

 

Disclosure of vouching

 

Where you are married, we will always recommend that you go through the process of full disclosure. What that means, is that we ask your spouse to disclose to us vouching showing the value of all of the matrimonial assets and liabilities in his or her name at the date of separation.

 

We will then guide you through the process of producing and disclosing to them the vouching for all of the assets and liabilities in your name as at the date of separation.

 

That process allows us to build a full picture of what your net matrimonial property looks like. We prepare a Schedule of Matrimonial Property and input the figures as the vouching comes to hand. We can give you firm advice around what a fair and reasonable settlement is going to look like.

 

What is the cheapest and most economical way to separate?

It is always open to you to agree with your spouse what you both consider to be a fair and reasonable settlement and all that would be required of us would be to draft the Separation Agreement which reflects that agreement.  That’s the cheapest and most economical way of dealing with your separation but the downside is we will never be able to give you advice on whether or not that settlement is fair and reasonable.

 

How long does the separation/ divorce process take?

Some separations and some divorces can be resolved within a matter of months, others take longer. Much will depend on the complexity of your case and how co-operative your ex-partner is going to be. A simplified divorce procedure is much faster than an ordinary divorce procedure. You can read about the ordinary and simplified procedure here.

If an agreed settlement cannot be reached by negotiation then, unfortunately, you could have to go to Court for a decision on how each of your financial claims should be dealt with. An alternative to going to court such as mediation and collaboration would be discussed with you.

 

Applying for Divorce

Where you are married and once you have a Separation Agreement, the divorce itself just becomes a paperwork exercise and nobody needs to go to court. If there are children under the age of 16, the divorce proceeds by way of a Writ and sworn statements. If there are no children under 16 the divorce can proceed by way of a form filling exercise called a Simplified Divorce.

Once you have been separated for a year and your spouse consents, you can apply for a divorce. Once you have been separated for 2 years, you can apply for a divorce without your spouse’s consent.  We don’t generally recommend to any clients that they proceed to seek divorce on fault based grounds, such as if your partner committed adultery or unreasonable behaviour, as it creates unnecessary expense and the divorce is likely to take longer.

If you try to seek a Divorce without first at least attempting to ensure that all financial claims have been settled this can increase the cost and take longer.

 

How much will a Separation Agreement/Divorce cost?

 

Going down the process of fully disclosing all vouching can cost between £2,000 to £5,000 plus VAT so it is a more expensive process and does take longer but without it we cannot advise on the fairness and reasonableness of any settlement as we do not have the full picture; it depends on whether you ae using the simplified or ordinary procedure and whether the application is lodged in the sheriff court.

The drafting and/or revising of the Separation Agreement can cost £1,500 to £2,500 plus VAT depending on the complexity of the agreement.

 

The Divorce costs are as follows:-

 

Where there are no (outstanding) financial matters or child-related matters to be resolved and no children under 16 years of age – we have 3 different levels of service for you to choose from, as detailed below:-

 

 

Director Service – £1,000 + VAT + outlays detailed below

Our Family Law Executive Director, Judith Higson, will be your main point of contact, subject to annual leave commitments, and will carry out the required work herself as quickly as possible with the least amount of delay, subject of course to civil court procedure.

 

Team Service – £750 + VAT + outlays detailed below

The work will be carried out by another member of the Family team and the Divorce will be applied for as quickly as possible subject to other urgent matters taking priority and subject, of course, to civil court procedure.

 

Low-Level Service – £350 + VAT + outlays detailed below

The work will be carried out by another member of the Family team and the Divorce will be applied for without any degree of urgency.

 

Outlays in relation to Simplified Divorce procedure

 

• £125 – submitting an application to the Court
• £13 – admin fee to the Court for instructing Sheriff Officers to personally serve the papers
• £200 (approximately) – to cover the Sheriff Officer’s fee for service

 

You can apply for a Simplified Divorce on your own by downloading and completing the appropriate form from the Scottish Courts website.

 

Undefended Divorce by Affidavits

 

Where there are no financial or child-related matters to be resolved and there are children under 16 years of age, we have 3 different levels of service for you to choose from, as detailed below:-

 

Director Service – £5,000 + VAT + outlays detailed below

Our Family Law Executive Director, Judith Higson, will be your main point of contact, subject to annual leave commitments, and will carry out the required work herself as quickly as possible with the least amount of delay, subject of course to civil court procedure.

 

Team Service – £3,000 + VAT + outlays detailed below

The work will be carried out by another member of the Family team and the Divorce will be applied for as quickly as possible subject to other urgent matters taking priority and subject, of course, to civil court procedure.

 

Low Level Service – £1,500 + VAT + outlays detailed below

The work will be carried out by another member of the Family team and the Divorce will be applied for without any degree of urgency.

 

Outlays in relation to Undefended Action of Divorce by Affidavits

 

• £156 – lodging Initial Writ with the court
• £69  – to lodge affidavits with the court
• £200 (approximately) – Sheriff Officer’s fee for service of papers

 

It generally takes around 3 months to obtain the Divorce but things are moving slower than usual due to the global pandemic and the impact this has had on the Scottish Courts.

 

I hope this has given you a bit of a picture as to what to expect from a first meeting when you come to us seeking advice in relation to your separation and given you an idea how Separation and Divorce is dealt with in Scotland.

 Contact us

Please feel free to contact us if you have any questions. You can trust in Scullion LAW, email [email protected] or call our team on 0141 374 2121. You can also connect with us on LinkedIn, Instagram, twitter and Facebook and send us a private message at any time. We are here to help you. Visit our website www.scullionlaw.com to book an appointment with our expert divorce lawyers today.

 

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At Mybump2baby we are passionate about supporting families by connecting them with trusted solicitors throughout the UK. If your family is interested in seeking legal advice, or if they are looking into separation with consent, separation without consent or they are looking to start divorce proceedings our trusted solicitors are here to help.