The dissolution of marriage
In Scotland, a divorce is one decree (an extract decree of divorce) which is granted after the parties have agreed on financial arrangements and arrangements regarding any children. For further information, read The divorce process.
These involve deciding how you will care for any children, where they will live and how they will be supported. It is not possible to obtain an extract decree of divorce until a court is satisfied that satisfactory arrangements for the children are in place. For more information, read Child maintenance in Scotland.
These include deciding how you will divide your assets and liabilities and where you will live. Not all couples come to a formal arrangement regarding finances. However, a divorce does not end the right of a former spouse to make financial claims on the other. Therefore, it is advisable to have your financial arrangements recorded in writing, detailing your agreement and providing that neither of you can make a financial claim on the other in the future.
In Scotland the parties can enter into a minute of agreement (also known as a separation agreement) dealing with and resolving issues - especially with regards to financial arrangements - arising from their separation. Such a minute of agreement should be registered, to ensure that the document is legally enforceable and cannot be changed by one party alone.
Where such a minute of agreement is entered into, a simplified divorce procedure is available provided that the agreement adequately deals with financial issues and that there are no children below the age of 16. This simplified procedure is less expensive and more straightforward than the other procedure.
While a minute of agreement regarding financial support can be made either verbal or written, it is advisable to seek legal advice before agreeing on a financial support package. It is also advisable to have such an agreement recorded in writing by a solicitor in case of future dispute.
DIY and online divorce
If both partners agree on matters regarding finances and children, getting a divorce is rather straightforward. Therefore, it is possible to get a divorce cheaply using a do-it-yourself method or online. You will need to make yourself aware of the various elements of the process and be willing to undertake all the admin.
To divorce in Scotland you can apply to the Sheriff Court using the appropriate forms (available on the Scottish Courts website) and paying the relevant fee, or you can apply through a web-based service. Web-based services usually include a degree of guidance from a divorce lawyer but are much cheaper than actually going to visit a solicitor.
What if you can't agree on financial or child arrangements?
There are several options if you and your spouse can’t agree. These include:
using a solicitor
going to court
Family mediation is where an independent, trained professional helps you and your ex to work out agreements for your children or your finances. They can assist you to create a parenting plan or help you to figure out which financial documents to base your decisions on. They will also be able to recommend a lawyer who will be able to record your agreements into a legal document.
Arbitration is distinct from mediation, in that it involves appointing an arbitrator to make a decision on any financial and property issues arising from the breakdown of your relationship (ie rather than reaching a mutual agreement).
Using a divorce solicitor
Using a solicitor can be expensive, but a solicitor will manage all stages of the divorce. It may be necessary to use a solicitor where there are tricky issues involved and unresolved disputes. Often they will be able to help you achieve a divorce without the involvement of the court (other than granting the extract decree of divorce).
Going to court
Going to court can be costly and may involve using a barrister if the case goes to final hearing before a judge. However, if you and your partner are unable to negotiate (such as in cases of domestic violence, or where your partner refuses to disclose assets) it may be necessary to apply to the court for a financial order. In Scotland, if you have children under the age of 16, you will have to apply to the courts because they wish to ensure that any arrangements made for the children are adequate.
Other ways of ending a marriage
Some couples decide to end their marriage without taking any formal steps. You can simply come to an informal arrangement with your spouse, choose to stop living together and essentially bring your relationship to a conclusion. Obviously you will need to agree on the practical arrangements such as how to split any finances and possessions, what to do about your accommodation (eg if you have a joint mortgage, will you sell the property or will one of you buy the other’s share of the mortgage?) and, if you have children, which parent will become the primary carer etc. If you are in receipt of any benefits or tax reductions as a result of your marriage, you will also need to inform your council, benefits office, HMRC and any other relevant bodies. This does not separate you legally and you cannot remarry.
In Scotland, judicial separation only applies to civil partnerships and they are quite rare. An order for judicial separation does not dissolve the civil partnership, so neither civil partner is free to enter into a new civil partnership or to marry. Further the order does not change the partners’ rights to remain in the family home - an exclusion order must be granted by the courts if one partner does not wish to leave the property.