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, what the procedural matters are as well as provide you with tips on how to ensure your stays invested in you and in 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 will suffice and irretrievable breakdown of a marriage is likely to be established. Your divorce lawyer will need to demonstrate that such behaviour has had a sufficient impact on your life and it would be unreasonable to expect the parties to cohabit with each other any longer.
Irretrievable breakdown of a marriage can 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 party that is not your spouse. Your divorce lawyer will explain the process of such proceedings as well as make you aware of what potential defences can be used in the context of adultery.
As already mentioned above, irretrievable breakdown can be established when it is apparent that there has been no cohabitation between the parties at any time during a continuous period of one year after the date of marriage. It is important to remember that this ground for divorce will require your spouse to consent to a divorce. The legislation explains that parties will only be regarded as cohabiting only when they are living together after the date of marriage as man and wife. That means that if you and your spouse continue to live under the same roof but lead separate lives, this will suffice. In such circumstances, the court will take into consideration the nature of their relationship, financial arrangements as well as other factors.
Non-cohabitation for two years is a very similar ground for divorce to non-cohabitation for one year with two main features distinguishing one from the other. Firstly, it is crucial to notice that it has to be proven that there has been no cohabitation between the parties for the period of two years. Secondly, your spouse does not need to give consent for the divorce.
Upon speaking to you and reviewing your case, your lawyer will be in a position to give you guidance as to which ground will be applicable to your individual circumstances.
It is difficult to have a good understanding of what to expect from a divorce and each individual cases are different and depend on a number of factors. Consequently, it is useful to understand the potential routes the divorce could follow.
A simplified procedure for a divorce involves completing an appropriate form to your local Sheriff Court. This is probably the quickest way to finalise matters but is only available to individuals who fall into the following criteria:
If you meet the above criteria, a form will need to be filled out, signed by both parties and submitted to the Sheriff Court along with your marriage certificate. Upon submitting a form, there is a fee payable and your lawyer will provide you with all of the necessary information in relation to this.
Although the simplified divorce procedure is reasonably straightforward and many people might wish to proceed with this independently it is always beneficial to seek professional advice from a solicitor. Once your divorce is granted, you lose the right to make any financial claims against your spouse.
The ordinary divorce procedure is slightly more complicated than the simplified divorce procedure. This procedure is used when the following criteria apply to your individual circumstances:
In order to proceed with this procedure, it is recommended you instruct a solicitor to prepare the legal documents. Your solicitor will prepare an Initial Writ, which will include the names and addresses of both parties as well as details in relation to the grounds for a divorce, specifying details of breakdown of the marriage.
If there are children under the age of 16, the writ will additionally specify what you wish the care arrangements to be.
Finally, the Writ will set out the financial orders you wish the court to make.
When raising an action in court, there are some situations where a case may be undefended. When this happens, you lawyer will prepare your and your witnesses’ affidavits. This therefore means that you would not have to appear in court to give oral evidence in a case.
The action will begin in the same way as ordinary procedure in that an Initial Writ will be served upon the your spouse and once the time to defend the action expires, your lawyer will submit sworn affidavits and ask the court to make the orders you are seeking. This will be submitted along with any other relevant documents and evidence as well as a minute signed by your lawyer. Upon reviewing all documents, the court will then be in a position to make the decision whether to grant the decree of divorce and other orders.
Proof is a court procedure where both parties and their lawyers will attend at court along with witnesses to present all information and evidence to a Sheriff.
The process involves your lawyer asking you and witnesses questions in order to determine circumstances and factors surrounding the breakdown of the marriage.
Be prepared that the lawyer acting on your spouse’s behalf will cross-examine you as well as your witnesses. This process allows the other side to challenge what you have said. Your lawyer will also be in a position to proceed to cross-examine your spouse and their witnesses.
Your lawyer will understand that to most people, this is a very new and stressful experience and therefore they will ensure you are prepared for this in advance and now what to expect.
Having heard all evidence, the Sheriff will then arrive at a decision based on what has emerged at the Proof. There are circumstances where the Sheriff will make the decision at the Proof but it is very common for the court to want to review the evidence before arriving at a final decision.
Although this process adds a delay and you may be anxious to know what the outcome is, it is essential to be patient at this stage.
The court will issue a copy of the decision to your lawyer. Your lawyer will then explain the decision to you, specifying the Sheriff’s reasons behind such decision were.
It is important to choose the right solicitor to represent you and your best interest. Choosing someone you can contact easily and whom will keep you up to date throughout the process is essential to making it work.
There are a number of key factors you should bear in mind:
Speaking to your solicitor should fill you with confidence from the outset. At the initial meeting, the first impression you will get from your solicitor is important. It is good to ask yourself a question of whether you feel that your lawyer will be capable of providing you with professional service that will be clear and concise.
At the initial meeting, it will be important to enquire what the firms Terms of Business are, who will undertake the work and whether the service will be a fixed fee or charged at hourly rate. If it will be charged at hourly rates, it is good to know what the hourly rate is as well as ask your lawyer to provide you with an estimate of the final fee. It is also useful to question whether there are any other outlays or fees you may have to pay.
Each case is, to a large extent, unique. It is frequently impossible to predict the outcome of a legal dispute. Although your lawyer will want to manage your expectations, you should feel comfortable to ask them what the potential outcome could be and your chances of success.
Your lawyer should be in a position to identify areas of difficulty throughout the process and present to you a strategy that will allow them to work towards achieving the best possible outcome for you.
Although this might be a simple point, it is crucial to ensure you provide your lawyer will all relevant information at the outset and inform them of any changes to your circumstances throughout the process of the dispute. No one likes surprises and ensuring that your lawyer is prepared for everything during court proceedings will give you an advantage.
In doing so, you will ensure that your lawyer has all facts and evidence that will allow them to guide you during the legal process and ensure they will get an opportunity to work towards the decision you desire.
Although you are paying for legal services and consequently you want to get value for money, it is important to note that you hire a lawyer for a reason. There is no point in paying a premium for legal advice and then failing to act upon it.
If your lawyer suggests alternative ways to resolve the dispute rather than entering into court proceedings, it is because they believe that it can be resolved with the use of such process. Litigation should always be the last resort as proceedings are expensive and uncertain.
During the process of your case, it is important to ensure that you are kept to up date with all aspects of the proceedings. It is also essential that if your lawyer contacts you to take your instructions, you should make time to speak to them.
Effective two-way communication is crucial and therefore asking your lawyers for meetings or letters to keep you informed is good practice.
Breakdown of a marriage is a very distressing experience. Choosing the right divorce lawyer to guide you through the legal process and ensure you are provided with clear and concise advice is therefore crucial. Before instructing anyone, do your research, speak to potential lawyers and make an informed decision on choosing a divorce lawyer that will ensure you are not hurt a second time.
Get in touch
Speak to one of our experience legal team, and get responsive, clear, and straightforward legal advice and support.