The breakdown of a marriage can be a very stressful and overwhelming experience. You will likely be hurt by the breakdown of the relationship, but it is important not to be hurt twice with an unfair settlement agreement. Instructing a firm that will guide you through the legal process, providing you with clear and concise advice, is therefore crucial.
The following guide will explain the grounds for a divorce, outline the procedural matters, and provide you with tips on how to ensure your solicitor stays invested in you and your case.
In Scots law, a divorce will be granted by the court when it can be established that there has been an irretrievable breakdown of the marriage.
Scots law provides four separate grounds for establishing irretrievable breakdown of marriage:
Unreasonable behaviour can take many forms. For example, verbal or physical abuse, reckless financial management, and substance abuse issues throughout the marriage may be sufficient for the court to establish irretrievable breakdown of the marriage. Your divorce lawyer will need to demonstrate that such behaviour has had a significant impact on your life and that it would be unreasonable to expect the parties to continue cohabiting.
Irretrievable breakdown of a marriage can also be established if the defender has committed adultery since the date of the marriage. Adultery is defined as a voluntary act of intercourse with another person who is not your spouse. Your divorce lawyer will explain the process for such proceedings and advise you on potential defences that may be raised in the context of adultery.
Irretrievable breakdown can also be established where there has been no cohabitation between the parties for a continuous period of one year after the date of marriage, provided your spouse consents to the divorce. The law defines cohabitation as living together after the date of marriage as husband and wife (or equivalent). If you and your spouse continue to live under the same roof but lead entirely separate lives, this may still satisfy the requirement. In such cases, the court will consider the nature of the relationship, financial arrangements, and other relevant factors.
Non-cohabitation for two years is a similar ground for divorce to non-cohabitation for one year, with two key differences. Firstly, it must be proven that there has been no cohabitation between the parties for the full two-year period. Secondly, your spouse’s consent is not required for the divorce to proceed.
Upon speaking to you and reviewing your case, your lawyer will be able to advise which ground for divorce is applicable to your individual circumstances.
It can be difficult to know what to expect from a divorce, as each case is different and depends on a number of factors. Consequently, it is useful to understand the potential routes a divorce could follow.
The simplified divorce procedure involves completing the appropriate form for your local Sheriff Court. This is usually the quickest way to finalise matters but is only available to individuals who meet specific criteria.
If you meet the criteria, a form will need to be completed, signed by both parties, and submitted to the Sheriff Court along with your marriage certificate. A fee is payable when submitting the form, and your lawyer will provide you with all the necessary information about this process.
Although the simplified divorce procedure is relatively straightforward and many people may wish to proceed independently, it is always beneficial to seek professional legal advice. Once your divorce is granted, you lose the right to make any financial claims against your spouse.
The ordinary divorce procedure is slightly more complex than the simplified process and is used when certain criteria apply to your circumstances.
To proceed with this procedure, it is recommended that you instruct a solicitor to prepare the legal documents. Your solicitor will draft an Initial Writ, which will include the names and addresses of both parties, the grounds for divorce, and details of the breakdown of the marriage.
If there are children under the age of 16, the writ will also specify the care arrangements you wish to be put in place.
The writ will also set out the financial orders you are asking the court to make.
When raising an action in court, there are some situations where a case may be undefended. In such cases, your lawyer will prepare affidavits for you and your witnesses, meaning you would not need to appear in court to give oral evidence.
The action will begin in the same way as the ordinary procedure, with an Initial Writ served on your spouse. Once the time to defend the action has expired, your lawyer will submit sworn affidavits along with any other relevant documents and evidence, plus a signed minute. The court will then review all submissions and decide whether to grant the decree of divorce and any other orders you are seeking.
Proof is a court procedure where both parties and their lawyers attend court along with witnesses to present information and evidence to a Sheriff.
During proof, your lawyer will ask you and your witnesses questions to establish the circumstances and factors surrounding the breakdown of the marriage.
Be prepared for the lawyer acting on your spouse’s behalf to cross-examine you and your witnesses. This process allows them to challenge your evidence. Your lawyer will also have the opportunity to cross-examine your spouse and their witnesses.
Your lawyer will understand that, for most people, this is a new and stressful experience, and they will ensure you are prepared in advance and know what to expect.
Having heard all the evidence, the Sheriff will then arrive at a decision based on what has emerged during the Proof. In some cases, the Sheriff may make the decision immediately, but it is common for the court to review the evidence before reaching a final judgment.
Although this process may add a delay and you may be anxious to know the outcome, it is essential to remain patient at this stage.
The court will issue a copy of the decision to your lawyer, who will then explain it to you, including the Sheriff’s reasons for their decision.
It is important to choose the right solicitor to represent you and your best interests. Selecting someone you can contact easily and who will keep you up to date throughout the process is essential.
There are a number of key factors to bear in mind:
Speaking to your solicitor should fill you with confidence from the outset. At the initial meeting, the first impression you get is important. Ask yourself whether you feel confident that your lawyer can provide a professional service that is both clear and concise.
At the initial meeting, it is also important to enquire about the firm’s Terms of Business, who will undertake the work, and whether the service will be a fixed fee or charged at an hourly rate. If charged hourly, ask for the rate and request an estimate of the final fee. It is also wise to ask if there are any additional outlays or fees you might incur.
Each case is, to a large extent, unique. It is often impossible to predict the exact outcome of a legal dispute. While your lawyer will want to manage your expectations, you should feel comfortable asking them what the potential outcomes might be and your chances of success.
Your lawyer should be able to identify potential difficulties throughout the process and present a strategy aimed at achieving the best possible outcome for you.
Although it may seem obvious, it is crucial to provide your lawyer with all relevant information at the outset and to inform them of any changes to your circumstances during the dispute. No one likes surprises, and ensuring your lawyer is prepared for everything during court proceedings will give you an advantage.
Doing so will ensure your lawyer has all the facts and evidence needed to guide you effectively through the legal process and work towards achieving the decision you want.
Although you are paying for legal services and understandably want value for money, remember that you hire a lawyer for their expertise. There is little point in paying a premium for legal advice and then failing to act on it.
If your lawyer suggests alternative ways to resolve the dispute rather than going to court, it is because they believe the matter can be resolved through such means. Litigation should always be the last resort, as it is both expensive and uncertain.
Throughout your case, make sure you are kept up to date with all aspects of the proceedings. If your lawyer contacts you for instructions, make time to speak with them promptly.
Effective two-way communication is essential, so requesting regular updates through meetings or written correspondence is good practice.
The breakdown of a marriage is a deeply distressing experience. Choosing the right divorce lawyer to guide you through the legal process and provide clear, concise advice is crucial. Before instructing anyone, do your research, speak to potential lawyers, and make an informed decision to ensure you are not hurt a second time.
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Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
