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I want a divorce...

In Scots Law, there is only one ground of divorce: irretrievable breakdown of marriage, for which there can be different reasons.

The most common is separation, either for one year with the consent of your spouse, or two years without consent. Unreasonable behaviour and adultery are the other reasons in support of irretrievable breakdown.

Where there are no children and no financial claims by either party, then divorce under the simplified procedure can be followed. The application forms can be obtained from the Scottish Courts Website: www.scotcourts.gov.uk

Where children are involved, and/or there are financial claims on either side, then divorce cannot be granted without resolution of these issues. Your solicitor can discuss these matters in more detail.

I want a divorce and need to know how quickly I can apply for one?

There is one overall ground of divorce and that is the irretrievable breakdown of marriage.
This is proved in one of four ways:

(i) If you have been separated for more than one year and your spouse is prepared to consent to divorce you can apply to be divorced after one year.

(ii) If your spouse is not prepared to consent to divorce, you can raise proceedings after two years have passed from the date you separated.

(iii) If your spouse has subjected you to behaviour that you cannot tolerate, you can apply for a divorce at any time, subject to having appropriate evidence.

(iv) If your spouse has committed adultery, you can apply for a divorce at any time, subject to having appropriate evidence. This ground (iv) does not apply to same sex couples seeking dissolution of their civil partnership.

A Family Law solicitor will be able to advise you of the best way to proceed in your circumstances.

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The Family Law (Scotland) Act 2006 came into force on 4th May 2006. It applies only to Scotland. This has made a number of significant changes in the law relating to divorce, separation and to family life in general.

The periods of separation for divorce are now significantly reduced.

Opposite and same sex couples who are cohabiting (that is not married and not having entered into a civil partnership) will now have certain rights in the event of their relationship terminating or on the death of one of the couple.

Some common problems encountered:

The Family Law (Scotland) Act 2006 abolished marriage by cohabitation with habit and repute except in certain circumstances. If you were in such a relationship before 4th May 2006 and the relationship is either continuing or has ended after 4th May 2006 you could still be able to have your relationship declared to be a marriage. Also if you were in such a relationship before 4th May 2006 and it ended before that date you may still have the right to apply to the Court.

A Family Law solicitor will be able to advise you on whether the particular circumstances of your relationship would enable you to make an application to the Court. If you are in doubt about whether you might have the right to apply to the Court for a marriage to be declared you may have rights under the Family Law (Scotland) 2006 as a cohabitant.

I have been living with my partner and we have 2 children together . I am worried what would happen if he dies or we split up . I have been told that I have no rights. Is that correct?

From 4 May 2006, couples who choose to live together rather than marry have certain rights under the law although prior to this date simply living together gave cohabitants very little legal protection.

Where a couple (same sex or opposite sex) live together, then anything which they acquire during that time, apart from money, cars, pets gifts or items which are inherited, will belong to them equally.

The law also now states that where any money is saved from housekeeping, or if property is bought from housekeeping money (regardless of who provided the money) cohabitants have equal right to share in that money or what has been purchased with it (apart from the home they live in).

If a couple split up, either one can apply to the court for up to a year afterwards for an order to pay a sum of money by way of compensation for the cohabitant who considers they have lost out financially. The court would look at all the circumstances including whether the person applying to the court has suffered economic disadvantage (usually loss of earning capacity, capital etc) and whether the other party has benefited from the other's contributions e.g. looking after the couple's children.

Where one member of a cohabiting couple dies the rights which the surviving member of the relationship has depends very much on whether or not the deceased made a Will. If there is a valid Will the new provisions in the Family Law Act 2006 do not apply. The terms of the Will rule. If there is no valid Will the surviving cohabitant can make an application to the court (within six months from the date of death) for a capital sum from the deceased's estate. The court will take a number of matters into consideration including the size of the deceased's estate and any other claims against the estate by e.g. a wife, children.

The rights which the new Act gives to couples who decide not to marry or enter a civil partnership are still very limited. It is always possible for you and your partner to reach agreement on what would happen to all of your assets if you were to split up. You could also reach some agreement about who would look after any children, and deal with other matters which you think are important.

It is also worthwhile making Wills. Consulting your Solicitor will allow you to address all of these issues and find the solution which is right for you.

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Some of the problems frequently encountered:

My wife and I have separated and she is not letting me see our children - where do I stand?

As you are married to the mother of your children, you have what is termed "parental responsibilities and rights". These are a set of obligations and powers which every married parent has by law. Many are fundamental to the role of parenting, such as the responsibilities to safeguard and promote your children's health, development and welfare and to provide direction and guidance to the children in accordance with their stage of development. Rights include the ability to control, direct or guide the children in a manner appropriate to their stage of development, and importantly, in your situation, the ability to have the children living with you or to maintain personal relations and direct contact with the children on a regular basis. If the children are living with their mother, then you can arrange contact with them by negotiating with her. The Scottish Executive has recently issued a document known as a Parenting Agreement which you and your wife could use to assist you in coming to agreement about when you see the children.

This is found at www.scotland.gov.uk/Topics/Justice/Civil/17867/AgreementCharter.
There are two bodies in Scotland who offer mediation services to assist with negotiations. These are the Family Mediation Service and CALM the solicitors organisation of mediators.

If your wife will not reach an agreement, you can make an application to the Court to obtain an order for contact. A Family law solicitor will be able to assist you in making an application. The Court will make a decision based on the best interests of the children. Unless there is a good reason why contact is not suitable, the Court is generally in favour of promoting contact between the non-resident parent and the children. A good reason would include protecting the children from abuse including emotional abuse.

Remember - it is usually best for the children if the parents can come to agreement rather than to have to ask the Court to decide.

Unmarried fathers will have full parental rights and responsibilities for their children provided that they are registered as the father of the child on the birth certificate.

The Family Law Association has been closely involved in the development of the Family Law (Scotland) Act 2006. A Family Law solicitor is therefore best placed to advise you on your rights under the new laws.

My husband is no longer living with us and he is refusing to let me go on holiday to Spain with the children. What should I do?

The Children (Scotland) Act 1995 makes it an offence to take a child out of Scotland without the consent of the other parent. You should ask your Family Law solicitor to write to him asking to consent to the trip. If he still refuses to agree, you can ask the Court to grant a specific issue order to enable you to take the children on holiday without your husband's consent. If he has unreasonably withheld his consent, the Court may award the expenses of the action against him, which means that he would have to pay your Court costs.

I'm not married to the mother of my child but I am shown as the father on the birth certificate - do I have any rights?

It depends on when your child's birth was registered:-

If this was after the coming into force of the Family Law Act 2006 on 4th May 2006, you have the same rights as a married father provided that you are named on the birth certificate as the father. (See Answer to Question 1)

If this was before the Act then the answer is no, but there are two courses of action you can follow. You can ask the mother of your child to enter into a "Parental Responsibilities and Rights Agreement". If she will not agree to this it is possible to apply for "parental responsibilities and rights" through the Court. Whether they are granted or not is subject to the facts and circumstances of each individual case.

My granddaughter has lived with us since she was two weeks old. She is now three years old. Her mother is threatening to take her away from us but I am worried that she is not fit to look after her. Is there anything I can do to protect my granddaughter?

Despite the fact that you have cared for your granddaughter for a number of years, you have no "parental responsibilities and rights" in relation to her. Although the Family Law (Scotland) Act 2006 has made some changes to the law of who automatically has these rights and responsibilities in respect of children, it has not done so for grandparents. Instead the Scottish Executive is developing what is known as "The Grandchildren's Charter" which details what children should expect from all the adults involved in their lives. In your situation, your granddaughter's mother can remove your granddaughter from your care at any time. To protect your granddaughter, you would need to apply to the Court to obtain an order granting you residence of your grandchild. You may ask the Court to confer parental responsibilities and rights to you within that application. Your solicitor can make an emergency application to the Court if there are appropriate grounds to do so. Alternatively, you can seek guardianship of your granddaughter.

My children have been taken out of the country without my consent. I think they are in France and I don't think that they are coming back. I don't even know exactly where they are. I am distraught. Where do I turn?

You must speak to a Family Law solicitor immediately. A Family Law solicitor will help you make an application to the Central Authority in Scotland which in turn will make an application to the Central Authority in France to seek the return of the children when the removal is wrongful. Such a removal, if it is in breach of parental responsibilities and rights, is illegal. The quicker an application is made the more likely the children will be found. Reunite www.reunite.org also offers assistance to parents in your position. This also applies if a parent has taken children abroad with your consent but refuses to bring them back.

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Separation

It is unnecessary to have a Court recognise separation unless there is a dispute about the date of separation. If there are issues between you and your partner, then the sooner you reach agreement then the better your chance to achieving a long-lasting settlement.

It is very important that you take advice quickly and professionally therefore. A solicitor can prepare a written agreement, setting out all the issues which need to be resolved between you. A written agreement should also avoid the need for a Court or the expense which goes with it.

The Family Law (Scotland) Act 2006 created rights and obligations in relation to couples who lived together as if married. It created the right to claim financial support if the relationship broke down or a partner died. There are, however, very strict time limits in which to make a claim. Your solicitor can tell you more.

My husband and I have been having a difficult time recently and we are thinking of separating. What would you recommend I do?

There are a number of options open to you. You may seek to attend marriage guidance in an attempt to save your marriage. If you do not think that is an option, a Family Law solicitor can let you know what choices are open to you and help you work out what the consequences of your choice are likely to be.

There are a number of different approaches that you can use to resolve the issues between you. The approaches are Mediation, Collaborative Family Law, solicitor negotiation, or Court action.

Ask your Family Law Solicitor to explain these to you and help you decide which would be the best for you to use.

How do I get a legal separation?

Separation from your spouse is a matter of fact. It is not necessary to go through any legal process to prove your separation. You are either separated or you are not. If you are separated it is usually wise to resolve any financial or child related issues by negotiating a settlement and entering into a Separation Agreement to set out clearly what has been agreed. This does not alter your legal position and you remain married until a divorce decree is obtained. Alternatively, a judicial separation can be obtained. This is akin to divorce and is usually used where there is an economic or personal reason why divorce is unsuitable. It is a rarely used measure. Other than having the separation recognised by the Court, it does not make either of you single people.

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The law is there to protect you. Physical or emotional abuse has no place in our society and certainly no place in the family home. Courts have powers to remove an abusive partner.  If you are in an abusive relationship, your first step might well be a confidential discussion with a solicitor who is trained to help you; who has experience of the kind of difficulties you are going through; and who can guide you through the trauma. We can also put you in touch other agencies who can offer practical and essential help, such as Women’s Aid. You can visit their website here: www.scottishwomensaid.co.uk

My partner was abusive to me and I left him as a result. He now wants contact with our two children. I am frightened of him and the children are scared of him too. Do I need to let him see them?

Not necessarily. If he applies to Court for contact, you can ask the Court to take into account the need to protect the children from any abuse by their father. The Court would also consider whether your ex partner is able to care for the children. Finally, the Court would consider the effect of the background of abuse on you and whether asking you to co-operate with your ex partner would make contact difficult.

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The advent of the Civil Partnership Act 2004 which came into force on 5th December 2005 now means that there are extensive rights for same sex couples who have entered into a formal relationship known as a civil partnership. This law applies throughout the whole of the United Kingdom but there are parts of it that have specific relevance if you are living in Scotland.

I would like to have a civil partnership rather than get married. What do I have to do and what are the implications?

Civil Partnerships have been possible since 5th of December 2005. Only same-sex couples can register as civil partners, so if you are in a heterosexual couple you can't have a civil partnership. To register your partnership you need to give notice in the same way that you would if you were about to marry and you will need to contact your local Registrar for information about how to do this. Some useful information is to be found at: http://www.gro-scotland.gov.uk/ regscot/registering-a-civil-partnership-in-scotland.html You can't be married or already in a civil partnership if you want to register a civil partnership. Once a civil partnership has been registered the couple have virtually the same rights as a married couple have. These include the right to be supported financially, the right to make certain claims on the estate of a deceased civil partner and the right to make financial claims on the dissolution of the civil partnership. If you want to end the civil partnership you need to go through a court based dissolution process which is based on the process that divorcing couples have to go through at the end of a marriage. If you have concerns about your rights as a civil partner or you are worried about what will happen if you separate then a Family Law Solicitor will be able to advise you as to your rights.

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My wife and I have separated and my wife wants the house and the life policies. Can she keep them?

The law provides that the net value of the matrimonial property should be shared fairly between you. The net value of the matrimonial property is the value of all the assets that you and your wife owned at the date you separated less any outstanding debts as of the same date. If either you or your wife is seeking to have property transferred into the sole name of either of you then its current value rather than the value at the date of separation may have to be taken into account.

When making big decisions at a time like this, it is essential that you know where you stand in law. Sometimes people agree to things because they are needlessly frightened about losing their children or their home. Sometimes people are unaware of financial claims they can make. A Family Law solicitor will be able to guide you as to what constitutes a fair and reasonable settlement.

My husband left home two weeks ago. He had been paying all the bills. He hasn't paid a penny to me since then and I am running out of money to support the three children and myself. Can I claim any money from him?

Aliment for children is dealt with by the Child Support Agency. If your husband refuses to negotiate an appropriate level of aliment with you then you must contact the Child Support Agency immediately. They will normally backdate any claim to the date that they contact your husband. The Child Support Agency applies a strict formula based on your husband's net income to calculate the money due to you.

With regard to aliment for yourself, spouses have a duty to support each other financially during the marriage and this includes the period between separation and divorce. If you are unable to manage your finances and your husband refuses to agree to pay you a reasonable level of financial assistance, it is possible to make an application to the Court for aliment. Any award is based on your respective incomes and the outgoings that both you and your husband now have. However, it is important to recognise that the living costs for each of you will be higher than when you were living together and you cannot necessarily expect to maintain the same lifestyle that you had when you lived together.

My wife obtained an award of aliment from the court last year. I recently lost my job and she won't agree to reduce the money I am paying her. Have I got any remedy?

If there has been a material change in either of your circumstances you may apply to the Court for a variation of the original award. You need to apply to the Court quickly because until the Court varies the award then it will stay exactly the same whether you have a change of circumstances or not. The Court can vary the award from the date on which they consider your application for the first time. The Variation will be based on each of your current financial circumstances. If you presently have low income, you may be eligible for Legal Aid. It is very important that if there is a change of circumstances and you can't pay that you contact your Solicitor to apply for a change in the Court Order because if not the Court Order stays in force.

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