Divorce & Separation

Ending a marriage is never an easy decision to make, especially if you have a family, but sometimes it is the best decision for everyone.

Whatever your reasons for choosing to separate and then divorce, there is a legal process to be gone through.

Divorce doesn’t have to involve a long court process. There are other ways to resolve issues around separation and divorce – mediation and collaboration can be swifter, more effective and far less painful for everyone involved.

In Scotland, there are four grounds on which you can seek a divorce:

  1. Separation for two years, with no consent required by the other spouse
  2. Separation for one year with the consent of both parties
  3. Adultery
  4. Unreasonable behaviour

Separation is the most common ground used to seek a divorce. Many couples separate informally before approaching lawyers but what happens next?

One very useful first step is drafting a Separation Agreement. This agreement gives couples a base for discussion through formalising what has already been agreed between them or laying down the division of marital assets.

A Separation Agreement sets out what is to happen with matrimonial property, such as the family home, other assets, money, pensions and investments. It also covers who is to be responsible for existing debts, including mortgages. Access to children and their welfare and residence arrangements may also be included, as may access to family pets. Couples have complete freedom to decide what goes into, or is left out, of their separation agreement. This document then forms the basis of all future negotiations.

Matrimonial property is the legal term for all property (houses, holiday homes, investments, art works, livestock, etc.) which you acquire during the marriage up to the date of separation. Important exclusions to matrimonial property are gifts from a third party or anything acquired through inheritance.

The date of separation is also relevant. The law sets a fixed “date of separation”, which is defined as the date on which a couple ceased to live together as husband and wife. Defining this date can be the subject of some debate between couples. Surprisingly to some, a couple may continue to reside in the family home, but be considered as “separated” in law, which means that fixing the date of separation can be challenging.

As all matrimonial property is valued as at the date of separation, it is essential to establish what that date is. Once these valuations are obtained, they can be used as a basis for discussions on financial provision.

If you are thinking of a Separation Agreement, both you and your ex-partner must take independent legal advice before signing the Agreement. Even if you’ve agreed everything between you, one solicitor cannot act for both of you.

But what happens if you can’t agree? Before heading to the divorce courts, it is worth looking at Mediation and/or Collaboration. Both are voluntary processes which allow you and your ex-partner to resolve issues. Generally Mediation and/or Collaboration are far less costly than resolving issues through the court.

Increasingly courts are directing couples to Mediation and Collaboration as the processes are effective and efficient in resolving issues between couples.

Mediation

With divorce and separation come a myriad of emotions. These emotions can overtake a couple, and meaningful communication becomes extremely difficult. Although the thought of sitting in the same room as your spouse can lead to heart-pounding anxiety, trained Family Law mediators understand these anxieties and work with you to address your concerns.

Mediation provides a platform for discussion to resolve issues between couples. Led by a skilled and trained mediator, the process helps you both to focus on effective communication, understanding and information gathering. Common ground is established in order to allow both parties to move forward and resolve your difficulties. 

Any confrontational elements are removed, which allows you to have constructive discussions. The process of mediation aims to give you, as the couple, an element of control and the power to decide on how your particular issues are to be resolved. Many couples prefer this rather than having their issues decided by the courts.

Mediation can be started at any time and can take as long as is necessary. It can take place before or after separation and before or after divorce. It is an ongoing process and will not resolve matters overnight. However, the earlier that mediation is attempted, the greater the chance that your relationship will remain cordial after separation.

  • Tom Quail is a convenor of CALM Scotland (the Association of Family Law Mediators). For more information on mediation and what it entails, please visit www.calmscotland.co.uk.

Collaboration

“Can we not just sit down and talk about this?”

Well, yes, you can.

Collaboration allows you, as a separating couple, to reach agreement through a calm and respectful round-table discussion. Collaboration involves a number of meetings: each meeting is carefully planned in advance by your solicitors who identify the particular issues which have to be resolved.

After each meeting, everyone receives a summary of the discussions. This summary identifies the next steps which you each have to take before the next meeting. Using this structure allows key issues such as arrangements for children and transitional financial arrangements to be put in place quickly. Once all matters are agreed through the Collaboration process, a legal agreement is signed and, if needed, a divorce arranged.

The Collaborative Process is based on a contract which all parties sign. It commits everyone, including the professionals, to act with respect and integrity throughout the process. Significantly, this contract also prevents you from instructing your lawyer to raise a court action if the negotiations fail. This means that all those participating in the meeting have an interest in reaching a successful conclusion.

  • Tom Quail is a member of Consensus Collaboration Scotland, an organisation of Scottish lawyers and other professionals, who use collaboration to facilitate “good” separations and divorces. www.consensus-scotland.com.

If neither Mediation nor Collaboration are successful, then the court will make decisions for you. Potentially long-drawn out and often expensive, the court may not make the decisions you want so it can be in your own interests to look at alternatives before coming to court.

If you haven’t even tried Mediation or Collaboration, you may find that the court insists that you do so before hearing your case.

However, if your divorce is uncomplicated, you can use the Simplified Divorce Process. To use this process, you must meet the following criteria:

  • You have been separated for a minimum of 1 year
  • You have no children under 16
  • There are no financial matters to resolve (because they have all been agreed)
  • You both wish to divorce or to dissolve the marriage.

To use the simplified process, you need to obtain the relevant form from your local Sheriff Court and pay the appropriate fee. If you are seeking a one year divorce or dissolution, your ex-partner is required to sign the form, indicating that they consent to the divorce. You will also need to sign part of the form in the presence of a Justice of the Peace or Notary Public – many solicitors are Notary Publics.

However you and your spouse choose to end your relationship, the WJM Family Law team can help and advise. We can work with you to protect your and your family’s interests while negotiating a suitable outcome.