Divorce FAQs – we’ve decided to get divorced, but what happens next?

Going through a divorce can be a stressful and uncertain time, with many questions about how to go about your separation in the best way possible for you, and your family.
Our Family Law team have answered some frequently asked questions below.
For further information and advice, contact the WJM Family Law team on family@wjm.co.uk

How do I get divorced in Scotland?
To get divorced in Scotland, you must apply to the court for them to review your situation and then (if they are content do so) they will grant your divorce. The process by which you can apply to the court will differ depending on your circumstances. It can either be done via a simplified divorce application, or through a more involved process known as the ordinary procedure. Generally speaking, you will be able to utilise the simplified divorce procedure if your finances have been resolved and there are no children of the marriage who are under the age of 16. Otherwise, you will need to raise divorce proceedings using the ordinary procedure.

What are the legal grounds for divorce?
There is only one ground for divorce in Scotland – irretrievable breakdown of the marriage. This can be proven in one of four ways:
1. Adultery
2. Unreasonable behaviour
3. One year’s non-cohabitation, with the other spouse’s consent, and
4. Two years’ non-cohabitation, and no consent is required from the other spouse.

Do I need my spouse’s consent to get divorced?
It will depend on your circumstances, but no, not always. If you have been separated for one year and are seeking to use the ground of one year’s non-cohabitation, then your spouse must consent to the divorce. However, after two years of non-cohabitation (i.e. not living together as a married couple or civil partners), you can proceed without their consent – albeit, they could still defend the action.

How long does divorce usually take?
A straightforward, simplified divorce can just take a few months from making the application to seeing the divorce granted. However, more complex cases, particularly those involving finances and children, can take significantly longer, sometimes a year or even more.

What is the difference between a simplified divorce and an ordinary divorce?
A simplified divorce is quicker and cheaper, but only suitable where there are no financial disputes to be resolved and there are no children under the age of 16. An ordinary divorce is used where there are disagreements about finances, where children are involved or where parties have not been separated for a year. An ordinary divorce involves a more detailed court process. However, the outcome would be the same and the divorce decree would not state which process had been used.

How is property divided in a Scottish divorce?
Scotland follows the principle of fair sharing. This usually means an equal division of matrimonial property. However, this can be impacted by various special circumstances arguments that can be made.

What counts as matrimonial property?
Matrimonial property includes assets and debts built up during the marriage. This can include family homes, savings and pensions. Assets owned before the marriage or received as gifts or inheritance from third parties during the marriage and remain in the same form in which they were received are usually excluded.

How are pensions and debts dealt with on divorce?
Pensions built up during the marriage are typically included and can be shared following the obtaining of a pension valuation. These valuations are known as cash equivalent transfer values (CETVs).
Debts are also included. Again, what will be looked at is the debt built up during the course of the marriage.

What happens to the family home when we divorce?
The family home is often one of the most significant assets that make up part of the matrimonial property. It may be sold, transferred to one spouse, or retained temporarily if agreed between parties. The outcome will always depend on what is fair and reasonable in the circumstances having regard to the Scottish legislation that is set out in the Family Law (Scotland) Act 1985.

How are arrangements made for children, including where they live and contact with each parent?
Parents are encouraged to agree arrangements themselves, focussing on the best interests of the child. However, if agreement cannot be reached, the court can decide matters such as residence and contact. They make orders based on what is in the child (or children’s) best interests.

How is child maintenance calculated?
Child maintenance is calculated based on the non-resident parent’s income – i.e. the income of the parent with whom the child spends less nights. The Child Maintenance Service provides a calculator that can be used to ascertain this.

Do I need a solicitor, and how much will it cost?
You are not required to have a solicitor, particularly for a simplified divorce. However, legal advice is strongly recommended where finances and children are involved. It should be noted that once you are divorced, you cannot ask the court for financial orders and therefore, even if you are using the simplified divorce procedure, it would be sensible to discuss matters with a solicitor in the first instance.
Costs can vary significantly depending on complexity of the case.

Can we reach an agreement without going to court?
Yes. Many couples resolve matters between themselves. Alternatively, they can do so via negotiation, which is a solicitor led process, or by mediation or collaborative law. These all avoid the need for the court to be involved in the reaching of agreement relating to childcare and/or finances.

What happens if my spouse does not co-operate?
You can still proceed with the divorce. The court can make decisions in the absence of agreement and ensure that the process moves forward as quickly and as smoothly as possible given the circumstances.

When is divorce finally legal, and can financial claims still be made afterwards?
A divorce becomes final when the court grants Decree of Divorce. There is no two-stage process like there is in England.

Importantly, financial claims in Scotland should always be resolved before the divorce is granted as these rights are lost on divorce.