DIVORCE SOLICITOR IN PERTH

DIVORCE: I NEED CLEAR & STRAIGHTFORWARD ADVICE

I understand that this is a decision which you and your spouse will not enter into lightly. What will happen to the family home, future financial implications for you & where children will live etc are all considerations which need to be worked out by an experienced family law solicitor. The process need not be confrontational with 'winners ' and 'losers'. As a family law solicitor with 20+ years experience I am well placed to offer you sound advice and outline your options.

What are the grounds for divorce in Scotland ?

There is only one ground for divorce in Scotland, irretrievable breakdown of the marriage, as established by:-

1. One year of continuous non cohabitation with the consent of your spouse. 

2. Two year’s continuous non cohabitation, with no consent required from your spouse.

3. Adultery, this being sexual intercourse with a person of the opposite sex.

4. Unreasonable behaviour.

What then is 'unreasonable behaviour' ? It can be thought through in this way -  ‘ Is it unreasonable, in the light of the behaviour exhibited by spouse A, to expect spouse B to continue to live with spouse A ? ” There is no prescribed list detailing exactly what is or is not defined as ” unreasonable behaviour ” Behaviour that may cause a gentler soul to head to their solicitor could be, in contrast, simply shrugged off by another party. The behaviour may be active or passive; behaviour exhibited by a spouse that is aggressive, controlling & domineering would appear, on the face of it, to be unreasonable. Evidence will need to be led in court by the pursuer showing example(s) of the unreasonable behaviour leading to the breakdown of the marriage alongside supportive evidence of the unreasonable behaviour from another witness.

I have children under 16 and financial matters to be sorted. What is the divorce procedure here ?

In this instance you have to use the Ordinary cause procedure. If you can reach agreement with your spouse on establishing grounds for divorce, contact & residence arrangements for your children are agreed and you have reached agreement with your spouse on financial matters, then you may raise your divorce with an expectation it will proceed as undefended. Statements, known as affidavits, are taken from you & your witness stating that the marriage has broken down irretrievably and there is no prospect of reconciliation and contact & residence arrangements for the children are agreed, The expectation here is that the Sheriff will be satisfied with the affidavits of you and your witness and grant divorce. If you cannot agree about the grounds for the divorce, or contact arrangements for the children, money or property then you can raise an action in court for divorce.. Here the parties will, after much preparation by their respective solicitors, state their case in person before the Sheriff.  Through a combination of affidavits, pleadings, reports and witnesses, the Sheriff will consider the case before him before issuing any orders at a later date.

What is ‘ Matrimonial Property ‘ ? How is a value calculated and what part does it play in a divorce ?

Matrimonial Property is defined in s.10 of the Family Law (Scotland) Act 1985 and includes:

All of the property belonging to the parties, or either of them at the relevant date which was acquired by them either:

Before the marriage for use by them as a family home or as furniture or plenishings for that home; or

During the marriage but before the relevant date.

An example of matrimonial property would be a house & furnishings bought prior to the marriage with the intention of being used as a family home. After the date of the parties marriage, cars, jewellery or furnishings bought would be matrimonial property. Pensions, ISA’s and shares may also be matrimonial property with the caveat that only a proportion of the investment would be considered as matrimonial property, namely the proportion accumulated whilst married.

The phrase ‘ relevant date ‘ refers to the date of separation, that being the date when parties ceased living together as husband and wife. This is the date at which valuation of all matrimonial property will be sought; for example the balance in a bank account as at the date of separation.

Are there exclusions ? Gifts from third parties or an inheritance are generally excluded from being classed as matrimonial property; for example jewellery or a painting you inherited from an aunt’s estate would fall to be excluded. There are circumstances that change the 'form' of a gift or inheritance; an example would be if you used an inheritance of cash to buy a flat, then there is an argument that inheritance of cash has changed form with the flat now classed as matrimonial property.

As an experienced family lawyer I can provide you with advice on drafting & seeking a fair division of the schedule of matrimonial property.

What is matrimonial debt ? How are matrimonial debts worked out ?

A debt would be considered matrimonial if the sum spent was for the benefit of both parties’. For example, a sum spent to refurbish a kitchen or bathroom. Despite the debt being associated with Party A whom took out the loan, arranged for and paid for the work, clearly both parties benefit from any improvements. The converse would not be true if Party B spent thousands on golf clubs or a motorbike – these purchases are for the exclusive benefit of Party B, even if Party B used a jointly held credit card to pay for the purchase.

Once a value for matrimonial property is calculated how is IT THEN spliT ?

The Family Law (Scotland ) Act 1985 works on the principle that the net value of matrimonial property should be shared 'fairly' between the parties. 'Fairly' often, but not always, means equally. The net value of the matrimonial property is the value of the matrimonial property as at the date of separation minus any debts incurred during the marriage. For example, if the only matrimonial property was a house bought during the marriage, then the net value of the matrimonial property will be the net free proceeds of sale after deduction of selling costs and paying off any outstanding mortgage. The intention of the law is to provide for equal sharing, but unequal sharing may be considered, whereby a party has solely paid the mortgage on the matrimonial home, after the other party has left to live elsewhere, and subsequently refused to pay their share of the mortgage.

What issues need to be agreed before I can obtain a divorce ?

All outstanding issues relating to finances and children must be agreed between the parties. Agreement on these matters can then be drafted by the parties’ solicitors then incorporated into a binding ‘separation agreement’. Divorce can follow thereafter on the grounds of separation for one year with consent of your spouse or separation for two years with no consent. A 'simplified divorce' can be obtained for those who meet strict criteria.

How long can it take to get my divorce ?

The answer here is ‘depends…’ If you have parties who, for whatever reason, simply cannot come to agreement then agreement could be a long way off. The Court may have to decide matters which will lengthen the process. My experience as a family lawyer has shown me that parties sometimes may and do argue over issues which with hindsight have not aided their cause. The divorce process can progress in a streamlined and less stressful fashion for those parties who are committed to dealing with those issues of importance with a consensual and co-operative mindset

I hope this article provides you with an understanding of family law in Scotland and how this may shape the divorce process. Whilst in no way a comprehensive overview of family law in Scotland, the advice provided here should provide food for thought. With many satisfied clients throughout Perth and Perth & Kinross, sound advice for your divorce is at hand. Contact me, Louisa J Wade, for pragmatic & professional advice on divorce.

With 20 years experience of negotiating divorce settlements throughout Perth I can help you.

Call me on 07310 164 305  on use the contact form.