Frequently Asked Matrimonial & Family Law Questions
Can I just decide to get divorced or do I have to have a specific reason for ending my marriage?
To get a divorce, your marriage has to have ‘broken down irretrievably’. In Scots Law, this can be established by adultery, desertion, unreasonable behaviour or separation.
How long does it take to get divorced?
In the case of separation, you can get divorced on the basis of one year’s separation if both of you agree. After two years, either of you can apply for a divorce, even if the other person doesn’t consent to it.
Divorce on the grounds of adultery, desertion or unreasonable behaviour can go ahead once the grounds have been established.
How long do I need to be married for before I can apply for a divorce?
There’s no time limit on how soon you can apply for divorce after you are married. Once the grounds are established you can go ahead with the divorce.
Do I need to go to court to get a divorce?
In most cases you don’t need to go to court for a divorce. If you have no children under 16 and grounds of separation have been established, then the divorce can go ahead.
Where children under 16 are involved, or where there is a dispute over financial issues, the divorce has to proceed by way of what is called an ‘Initial Writ’. Even in this instance you may not have to go to court as most of these cases are resolved through Affidavit evidence. This involves one of the parties and their witnesses signing sworn statements showing that the grounds for divorce have been met, and that the children are being well looked after. This can be done a solicitor’s office.
We are not married so do I have any rights regarding what happens to our house?
Even if you are not married, if the title to the house is in joint names or if you have a joint tenancy then you both have equal rights.
What happens if we can’t agree about custody of our children?
The terms for care arrangements of children are now ‘residence’ and ‘contact’. These replace ‘custody’ and ‘access’. The courts don’t tend to interfere with care arrangements unless they think it is in the best interests of the children.
Ideally, with the assistance of experienced matrimonial solicitors, there won’t be any need to apply to court for any orders regarding the children. Instead, matters will be sorted out through letters exchanged between the two parents or through mediation.
Do I get a share of my partner’s pension if we get divorced?
As with every item of ‘matrimonial property’, you may be entitled to a share of your spouse’s pension rights. You need to make a claim against any pension rights before the divorce goes through.
If you are entitled, you can get your share of pension rights in one of two ways:
- Offsetting – this means you receive a greater share of the other matrimonial assets and in return your spouse holds on to most or all of the pension
- Pension share – this involves a chunk of your spouse’s being transferred into a pension for you
Can we get divorced in Scotland if we were married in England?
You don’t have to get divorced in the country where you were married - these days it is quite common for people to get married in foreign climes.
If either of you live in Scotland, or is ‘domiciled’ here (meaning your main home is here) then divorce proceedings can be brought before the Scottish courts.
What happens if we can’t agree about what should be in our Separation Agreement?
A Separation Agreement must have the agreement of both of you and any areas of dispute can’t be included in it.
If there are any areas of dispute, and if these cannot be resolved through negotiation, you or your spouse may have to resort to the courts.
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