I am Separating or looking for a Divorce. What should I do?
We understand that the end of any relationship will be a very stressful and upsetting time for our clients. With help from our team of experienced family law solicitors, we can take some of the stress away and make sure that you get the best advice possible to ensure that you receive what you are entitled to. Many clients are surprised at what they can actually claim in the event of a relationship breakdown or divorce and that is why we are here to help you achieve this.
We would recommend that any client going through a separation, considers entering into a Separation Agreement. These normally set out what will happen to the assets i.e. the house, the finances, arrangements relating to the children whilst the divorce process is undergoing. It is important to note that even when parties are separated, you are still linked with your partner up until the point that the divorce is granted (which is a separate process to a Separation Agreement) which can sometimes take months even years to be finalised depending on the circumstances.
To start the process of getting a Separation Agreement in place please contact one of our experienced family solicitors in order to discuss your options, the best way to proceed and the various ways you can pay for your legal costs.
What should I do if my partner is being unreasonable?
We have years of experience in dealing with difficult situations. When faced with a difficult partner the best option is to seek legal advice. Our job is to support you, contact your partner so you don’t have to and ensure that we take all the steps we can to have matters resolved quickly. If your partner is not willing to co-operate with the process then we can advise you on the best way to proceed in terms of resolving a complete breakdown in communication. We have significant experience in dealing with difficult partners which involves more than just being aware of the legal issues but the emotional issues that arise as a result. We are well versed in working with even the most traumatic and unforeseen circumstances!
Is it easier to get a Divorce if we don’t have children?
If you do not have children under the age of 16 years old and the financial issues have been resolved between you then you may be able to apply for something called a “Simplified Divorce” which is commonly known as a “quickie” or “DIY” divorce. This procedure involves applying to the court on the basis that you have either (1) been separated from your partner for more than 1 year with your spouse’s consent or (2) you have been separated from your partner for more than 2 years without their consent. You can apply for this divorce yourself by contacting your local court or have solicitors deal with this matter for you.
We would however recommend that you appoint a solicitor to deal with the forms for you as there are some parts of the form that do require a signature by a Notary Public or a Clerk of Court. All of our experienced family solicitors are also certified as Notary Publics and would be able to complete this part on your behalf as well as ensuring that the papers are served correctly on your spouse and apply for the divorce on your behalf quickly. Also, we can advise you whether you may have any financial claims before you apply for a divorce which is crucial as once you are divorced you are unable to bring a financial claim against your spouse under divorce law. There are only very rare significant exceptions to this rule and therefore there is no going back once the divorce has been granted.
Who is entitled to keep the house?
Unfortunately, the answer to this is not simple and will depend on various factors such as when the house was purchased, was it pre-marriage? is the house owned in joint names? Who has been paying the bills? Can one of you afford to buy the other one out? Do you both agree to have the house sold? It may be that you want to stay in the house until your children are older so they can stay at their local school.
There are various options that can be looked at once we have been able to meet with you and get information on your individual circumstances. People are always surprised at the options that are open to them even when, for example, they couldn’t get a mortgage themselves when the house was first bought as they may now be able to take title to the house in their own name.
Grounds for Divorce?
There is now only one ground of divorce which is “The marriage has broken down irretrievably”. This ground can be met by a party seeking to show that this has been caused by:
- Unreasonable behaviour
- Non-cohabitation for a period of one year, with the consent of the other party.
- Non-cohabitation for a period of two years, without the consent of the other party.
The grounds can be difficult to navigate by yourself and so we would recommend you take legal advice on these grounds at the earliest opportunity to ensure you are getting the best outcome.
What is the procedure for a Divorce?
There are 2 ways court processes that can be followed to get divorced in Scotland:
- Simplified procedure
- Ordinary divorce action
If you do not have children under the age of 16 years old and also do not have any financial matters and/or assets to resolve then you may be able to use the Simplified Divorce Procedure. This is also dependent on whether there are any questions over the mental capacity of the parties.
If, however, you do have younger children or/and there are matters to be resolved which involve children as well as financial matters and/or assets, you would use the Ordinary Cause Procedure. This type of action can be very complicated and we would recommend that you seek specialistlegal advice. In such actions, we would seek to get a Separation Agreement in place at the outset to reduce any time spent in court and any legal costs. Court actions can quickly become expensive and it is very difficult to envisage how long they will last given the delays that usually face these types of actions therefore it is much better to get specialist legal advice at the outset.
How much will it cost?
This will depend on the individual circumstances as each situation is different so it is difficult to give a clear answer on legal costs. Once you have had a meeting with us we will be able to give you anestimate of the cost of the legal fees and may, in some circumstances, be able to offer a fixed fee Separation Agreement. We can also discuss making payment by instalments if this suits you better.
I am an unmarried father what legal rights do I have as regards to my children.
If you are named on the birth certificate as the father of the child, after 4 May 2006, then you have the same parental rights and responsibilities as the mother. This means that you are both entitledto make decisions relating to children and both have equal responsibility to ensure that each parent maintains regular contact with the child unless there is an agreement or court order to the contrary.
If you are not on the birth certificate or you are being refused contact with your children it is important that you take legal advice at the earliest opportunity. We can advise you what steps you can take to get contact and how much contact a court would be likely to award you. The court considers this by applying the legal test of what is in the best interests of the children. This is dependent on a number of factors such as the quality of the relationship between the father and the child, the accommodation the father lives in, how often he was involved with the child prior to the relationship breakdown, how often he sees the child now and the last time he had contact with the child. We will be able to advise you of what your prospects of success will be at court and assist you with the very difficult and contentious process of obtaining this at court. We will fight your corner when no one else will!
Do I have to pay for my children when I don’t see them?
The simple answer to this question is yes. Paying child maintenance for your child is a separate issue than having contact with your child. Child maintenance is payable up until the child is aged 16, and in some circumstances up to the age of 25 if they are in full time education. The Child Maintenance Service (CMS) are the agency responsible for ensuring that these payments are made and if you are not making payments you can face penalties and even have your wages arrested therefore it is very important that you do obtain legal advice on this at the earliest opportunity.
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