FAMILY LAW

Simplified Divorce

A simplified divorce procedure is available if financial matters are agreed, the parties are divorcing on either of the separation grounds, and there are no children under 16. The procedure is simple and cost-effective (a tick-box form which can be completed by parties themselves, plus a court charge of £90).

If this does not apply to you then you can apply to the Court to be divorced as follows:

Grounds for Divorce

There are “fault” and “non fault” grounds provided in the Act, and the speed at which a divorce can be obtained will be determined by what circumstances are relied on in the divorce proceedings.
The circumstances that will lead to a finding by the court that there is an irretrievable breakdown of the marriage are:

• the defender’s adultery
• behaviour of the defender that makes it unreasonable for the pursuer to live with the defender;
• not living as husband and wife for one year and there is consent to the divorce from the defender;
• not living as husband wife for two years when the defender objects to the divorce.

Adultery

If the pursuer establishes an irretrievable breakdown of the marriage on grounds of adultery or behaviour then they can obtain a divorce immediately, while the other grounds require some period of prior separation. The evidence is determined “on the balance of probability” rather than “beyond a reasonable doubt”. Therefore, for example, evidence of a husband staying in a hotel room with another woman for a night will likely establish adultery, even if sexual intercourse cannot be proved. The pursuer cannot seek a divorce based on their own adultery and the adulterous sexual intercourse committed by the defender must have been voluntary.

Behaviour

To found a divorce on the behaviour of the defender the behaviour must be such as a reasonable person could not be expected to live with the defender. The behaviour can be from one event, although showing a pattern is more likely to convince the court. There is no exact list of what behaviour will constitute grounds and the case law is filled with different examples. The finding by the court that the defender is at “fault” for the divorce will, however, not affect the amount of financial provision awarded nor arrangements regarding children.

Separation

If the parties have not lived together as husband and wife for a period of one year and both parties consent to the divorce then this establishes an irretrievable breakdown of the marriage. The defender’s consent to the divorce must be granted at the court proceedings and can be withheld for any reason or no reason at all.

If the defender does not consent to the divorce, then the pursuer will only be able to establish an irretrievable breakdown of the marriage once the couple has not lived together as husband and wife for two years.

Children

The principal law relating to children is contained in:

• The ‘Common Law’
• The Family Law (Scotland) Act 1985
• The Children (Scotland) Act 1995
• The Family Law (Scotland) Act 2006

‘Common law’ is the law which has gradually built up as a result of decisions taken by the courts over time. The Acts of Parliament also known as “statutes” set out the basic principles which must be observed by an adult taking decisions which affect children.

The principles are:

i) In any decision about a child, the paramount consideration is what will be in the best interests of the child.

ii) Both parents enjoy and have clear, equal responsibilities and rights in respect of their children. Both parents, whether separated or together, should exercise these parental responsibilities consistently.

iii) A court order should not be made unless it would be better in all the circumstances of a case to make one.

iv) In any decision about children, their views and wishes must be taken into account. The extent to which these wishes will guide the decision will vary according to their age and maturity.

v) Unless the contrary can be proved, it is in children’s best interests that they maintain significant relationships with both parents, whether they are living together or apart.

It is better for separated parents to agree on arrangements for their children in keeping with these principles. This avoids hostile and potentially expensive court actions. Disputes in court seldom provide satisfactory solutions and may reinforce bitterness between the two parents. This can be upsetting for the adults involved, their extended families and, particularly, the children themselves. It is unrealistic to expect the Court to reach a better decision than one decided by the two people who are closest to the children.

Some cases will, however, still be decided in court where the parents cannot agree.

Parental Responsibilities and Rights

Following changes made in the Family Law (Scotland) Act 2006, regardless of whether the parents are married to one another or not, a child’s parents are both given Parental Responsibilities and Rights ( PRRs) if they register the child’s birth together, i.e. both of their names appear on the birth certificate.

It is not necessary for both parents to be at the registration office at the time the birth is registered. There are special forms that can be filled in.

For children born in Scotland prior to the changes made by the Family Law (Scotland) Act 2006, if the child’s parents were married to each other at the time of the birth or got married later, then both parents were given PRRs. If a child’s parents were not married, then only the mother was given PRRs. The changes to the law made by the Family Law (Scotland) Act 2006 will not change that situation.
The father can get PRRs in one of the following ways:

• By marrying the mother.
• By signing and registering a Parental Responsibilities and Rights Agreement ( PRRA) form with the mother. (The mother needs to agree and the form needs to be registered in the Books of Council and Session, a public register kept in Edinburgh). We are happy to provide you with an Agreement if you ask.
• By asking the court to give them to him.

Other people with an interest in the child can also apply to the courts for PRPRs, for example step-parents, grandparents, aunts or uncles. When making a decision about a child, the Sheriff will be concerned about what is best for the child not for the adult in the child’s life. The Sheriff will ask the child what they would like to happen and will take the child’s views into account when the child is of sufficient age and maturity to form a view. A child of 12 years and over shall be presumed to be of sufficient age and maturity to form a view.

It is important to know if you have PRRs for your children as only those people with PRRs have a legal say in what happens to them.

Where more than one person has PRRs, they don’t have to ask each other about everything they want to do but they must agree if one of them wants to take the child away from Scotland (even on holiday). It is expected that people with PRRs will always do what’s best for the child.

Financial Consequences Upon Divorce

Financial consequences of divorce are dealt with by the Family Law (Scotland) Act 1985. This provides for a division of matrimonial property on divorce.

Matrimonial property is generally all the property acquired by the spouses during the marriage but before their separation, as well as housing and furnishings acquired for use as a home before the marriage, but excludes property gifted or inherited. Either party to the marriage can apply to the court for an order under the 1985 Act. The court can make orders for the payment of a capital sum, transfer of property, payment of periodical sums, and other incidental orders.

You cannot seek financial provision after decree of divorce. Therefore, if you are served with divorce proceedings, you must defend if there remain any financial matters to be resolved. If you do not do so within the set time frame, decree of divorce will probably be pronounced automatically, and you will have lost any opportunity of making a financial claim.

When such an application is made, the Court is directed to make such order as is:

“(a) justified by the principles set out in section 9 of the Act; and

(b) reasonable having regard to the resources of the parties.”

There are 5 principles in relation to financial provision, set out in the 1985 Act, s. 9(1):

(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage;

(b) fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of the family;

(c) any economic burden of caring, after divorce, for a child of the marriage under the age of 16 years should be shared fairly between the parties;

(d) a party who has been dependent to a substantial degree on the financial support of the other party should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of decree of divorce, to the loss of that support on divorce;

(e) a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.

The general rule in terms of the principle contained in s. 9(1)(a) is that the net value of the matrimonial property identified and valued at the relevant date will be divided fairly. “Fair” means “equal” unless there is a compelling argument to justify a fair but unequal split.

Section 10 provides that the court can depart from “equal sharing” if this departure is justified by “special circumstances”. The law does not provide an exhaustive definition of “special circumstances”, and the facts and circumstances of each case need to be considered individually. An eg is where the source of funds used to acquire an item of matrimonial property came from out with the marriage – for example, where equity from a pre-marriage property is used towards the purchase of a matrimonial home. It is often argued, with varying degrees of success, that the pre-marriage element should be excluded. This is not a straightforward area of law and ultimately it is a matter of discretion to the Court, in the absence of agreement.

Principle 9(1)(b) relates to balancing economic advantages and disadvantages. The typical use of this is to seek compensation for a wife who has followed the traditional child and housekeeping role throughout a marriage. The husband has been advantaged by her contributions to the household. The wife has been disadvantaged by her lack of career and pension at the end of the marriage. However to make a strong case under this principle the claimant first has to prove that there has been an imbalance, and secondly that this imbalance would not be corrected simply by a fair sharing of the matrimonial property.

Section 9(1)(b) is generally used in addition to 9(1)(a), to justify a larger than 50% share. However, it can also be used where there is little or no matrimonial property which would fall to be shared under 9(1)(a).

Maintenance post-divorce (termed “periodical allowance”) can only be awarded in terms of sections 9(1)(c), (d) or (e), and then only if a capital sum or property transfer would be inappropriate or insufficient to allow fair sharing.

Principle 9(1)(c) is intended to compensate for the economic burden of childcare. However, this was introduced prior to the Child Support Act, and so the CSA has taken over the function of regulating maintenance in respect of children. This principle can however be used to increase the amount of capital sought by the claimant on divorce.

Under principle 9(1)(d), periodical allowance can be awarded to allow a spouse to adjust financially after separation. There are fairly tight limits on this. The claimant must be financially dependent to a substantial degree on the other spouse. A Pursuer who makes financial adjustment, eg secures employment between separation and divorce may not qualify. Payment is limited to a maximum period of 3 years from divorce, and in many cases is likely to be for a lesser period.

Under principle 9(1)(e), maintenance can be sought for an unlimited period. However, to qualify the Pursuer would require to otherwise suffer “serious financial hardship as a result of the divorce”. Until very recently, this has been tightly construed by the Courts, with awards in only a handful a cases.

In summary, under Scots law, the wealth built up by the couple in the course of the marriage will usually be divided more or less equally, unless one of the spouses can come up with a compelling argument as to why a fair share should be an unequal share. While many cases settle at around more or less equal shares, there are a number which settle at around 55/45%, some at 60/40% and a very small minority at ratios in excess of that.

Minute of Agreement

Most cases are dealt with by parties signing a Minute of Agreement. Parties’ solicitors negotiate on their behalf and draw up a formal separation agreement which is signed by both parties. The agreement is a contract which when registered is binding (can be enforced in the same way as a court order). There is limited scope for overturning such an Agreement. The benefit of dealing with matters in this way is that it is usually more cost effective and the parties have a more predictable out.

Your solicitor will try to agree matters by way of Minute of Agreement before raising court action.

Should you require assistance on any matter arising from the breakdown of your marriage or relationship then please feel free to contact us by telephone to discuss or click on ‘enquire’ and one of our solicitors will call you today.

For more information or to discuss any services, please contact us by telephone on 0141 337 6678 or 07988 905 198 or by complete our enquiry form and we will contact you to discuss.