From worry over children and living arrangements to agreeing on finances, the end of a marriage or civil partnership can lead to anxiety and emotional upheaval.
Recognising that no two situations or couples are alike, our team of esteemed divorce solicitors is committed to supporting you with tailored, discreet, and clear legal advice suited to your circumstances, guiding you toward happier times.
Bringing a wealth of expertise to the table, our Family Law team is equipped to manage any intricacies and always safeguards your interests. From employing our specialist negotiation and mediation skills to more robust action if required, we will guide you through the process in a sensitive yet practical way.
Divorce and Legal Separation in Scotland
On what grounds can I initiate a divorce or legal separation?
In Scotland, the law recognises only one ground for divorce, and that is the ‘irretrievable breakdown of a marriage.’ This is established in one of the following ways:
- Adultery –your spouse has engaged in an affair or relationship with another individual
- Your spouse has displayed unreasonable behaviour, this could include physical or emotional abuse or drug and alcohol-related issues
- You have been separated for a period over one year and your spouse provides their consent
- You have been separated for a period over two years
The grounds for a dissolution of a civil partnership are the same, apart from adultery is not included. You can find out more about civil partnerships and the dissolution of civil partnerships here.
We can advise you which grounds apply to your situation, and we can also discuss a Separation Agreement, commonly known as a Minute of Agreement, with you.
This is a formal and legally binding contract recording all financial and child-related matters before you apply for your divorce or dissolution. It negates the need for the court to determine such issues.
How do I get a divorce in Scotland?
In Scotland, there are two ways to pursue divorce based on the irretrievable breakdown of the marriage. Our advice is to seek legal advice and guidance early, considering the different requirements:
- Simplified or the DIY Procedure – this applies if you have no children under the age of 16 and have already agreed on how you are going to divide your assets, which usually involves a voluntary albeit legally binding agreement drawn up by a divorce solicitor.
To use this procedure, one year must have gone past since the end of the marriage, this is the ‘Date of Separation’. Both parties must consent to divorce at the one-year period. If one party does not consent, a divorce can proceed after the second anniversary of separation without the need for consent.
- Ordinary Procedure — this applies when there are children involved under the age of 16 and/or when you cannot agree on the division of assets.
Here, the ‘pursuer’ needs to prove that there is an irretrievable breakdown of the marriage. The ‘defender’ can then agree or disagree with the proposals put forward around children, money, property etc. This procedure requires the involvement of a divorce solicitor and the court.
Worries about finances and child arrangements
Divorce and separation throw up many questions, particularly around finances and children, and these can often be worrying and hard to deal with.
From finalising custody, maintenance, and residence through to what happens to the home or business you share, we at Garden Stirling Burnet will guide you every step of the way.
With considerable experience in working with clients to navigate each of these complexities, we will help you reach a clear and fair resolution.
Here are some of the most common issues we help to address:
Finance Arrangements
When divorcing or legally separating in Scotland, most property, and other assets such as cars, jewellery, and pensions are classed as being ‘matrimonial property’ whether individually or jointly owned. It includes everything acquired during the marriage but not before it, and not after the Date of Separation. Third-party gifts and inheritance are excluded.
The only property acquired before the marriage that counts as matrimonial property according to Section 10 of The Family Law (Scotland) Act 1985 is the family home and its furnishings.
Upon divorce or separation, the matrimonial property should be divided fairly between spouses, this is classed as an equal share. Section 10 states that the court can depart from this equal share under special circumstances, such as pre-marital assets being used to acquire an asset during marriage.
A prenuptial or postnuptial agreement or a civil partnership agreement can be drafted to help protect assets brought into a relationship.
Divorce and Child Arrangements
Divorce and separation can be especially hard if children are involved. The focus will always be on reaching an agreement with their best interests at heart, with parents encouraged to come to a mutual decision around residence, contact, and maintenance.
With our experienced team of divorce solicitors, we will guide you through this process, whether it be through mediation or solicitor-led negotiations, and offer bespoke advice and support to reach a fair and sustainable solution.
If no agreement is reached particularly concerning residence, then a court may need to intervene, but this is always the last resort, and we will always strive to avoid this. Discover more about divorce and child arrangements here.
Divorce and Business/Company interests
Whether you are in the initial stages of setting up a new business/company or considering restructuring an established family business, we will help protect your business interest from potential financial claims in the unfortunate event of separation or divorce.
For those who are married or have entered a civil partnership, the process involves not only taking advice from corporate solicitors and your accountant, but also consulting with a family solicitor.
This strategic approach will ensure that you anticipate and address any potential challenges, mitigate risk, and safeguard the future of your business.
Divorce and Farms
Our team of divorce solicitors brings with it a high level of experience in dealing with the breakdown of marriages and relationships that involve farming interests.
Having acted for both farmers and their spouses over many years, here at Garden Stirling Burnet we are aware of the challenges separation brings where farms have been in the family for generations.
We understand that careful consideration must be given to both the future viability of the farming enterprise to preserve it for the next generation and addressing a spouse’s claim for financial provision.
Whether the path to resolving the separation dispute involves litigation or negotiation, we will guide you through the process step by step.
Our collaborative approach involves a trusted team of experts and valuers to assist with the quantification of matrimonial property and ensure a fair outcome tailored to the specific needs of your situation.
Garden Stirling Burnet, your trusted East Lothian Divorce Solicitors
Going through a divorce or legal separation is undoubtedly a challenging experience filled with emotions and uncertainty.
Here at Garden Stirling Burnet, our team of esteemed divorce solicitors is committed to providing you with compassion, support, and clear legal guidance tailored to your unique circumstances.
You are not alone, so please get in touch today for a confidential chat.
