Divorce and Family Law
It is an unfortunate fact of life that not all marriages stand the test of time. When it becomes clear to one or indeed both parties that a relationship has broken down it is common for one or both parties to take steps to bring the marriage to an end by way of divorce.
A variety of matters are relevant to any divorce such as questions relating to children, financial aspects such as division of property and money, interdicts and maintenance.
It is important that people in a relationship which has broken down are aware that certain financial claims must be made as part of the divorce proceedings otherwise the right to make such a claim may be lost forever.
Under the present law of divorce in Scotland, an application for divorce can be presented either to the Sheriff Court or the Court of Session. The person applying for a divorce (known as the Pursuer) must prove that the marriage has irretrievably broken down by establishing one of the following grounds of divorce:
- One year's separation with consent of the other party
- Two years separation without the consent of the other party
- Unreasonable Behaviour is probably the most frequent ground for divorce in cases where parties do not wish to wait for a period of 2 years to elapse from date of separation. We are frequently asked what constitutes “unreasonable behaviour”. Scots law insists that one of the parties to the marriage has behaved in such an unreasonable manner that the other finds it intolerable to live with him or her.
This can cover extreme types of behaviour such as habitual drunkenness or violence but it is usually unnecessary to allege behaviour as serious as this. In all cases, some form of evidence from a source other than the Pursuer is required. This is known as corroboration. Although this sounds rather a difficult thing to prove, in practice the Courts adopt a realistic attitude and are fairly relaxed when dealing with the exact nature of the unreasonable behaviour which has to proven.
One and Two years separation – often involve considerable periods of delay before obtaining a divorce. It is often difficult to obtain the consent of the spouse in a divorce on the grounds of two years separation particularly if the divorce involves claims for payment of money of division of property or perhaps the other party has a religious belief which prevents them from accepting divorce at all.
It is often assumed that where one party is to blame for the breakdown of a marriage that the other “innocent” party will gain an advantage and be entitled to a greater share of any property or money acquired during the marriage. This is not necessarily so. In theory, fault has no role or relevance when the court is considering granting a financial provision on divorce. In the vast majority of cases fault has no place in determining how property or money is to be divided between the parties on divorce. Only in circumstances where the conduct of one spouse has a definite impact on the resources available to be divided on divorce may there be good reason for the Court to take account of that conduct in dividing up the remaining assets of the marriage e.g. where one spouse has lost their assets through gambling.
It should be borne in mind that the divorce application is private. Details of unreasonable behaviour in an undefended divorce are not divulged to the general public and in general no-one but the parties need know what was in the divorce papers.
Questions relating to children are relevant to the divorce and the Court usually requires to be given information about the care arrangements for any children of the marriage – even if the parents are in full agreement as to the care of the children. The Court has to be satisfied that those care arrangements are appropriate for the children. Subject to that, the Court will not intervene in matters relating to the children, unless asked to do so by a party in circumstances where the parties themselves cannot resolve the issue without the assistance of the Court.
Legal aid may be available to one or both parties in any divorce proceedings and we can offer help and assistance in this area.
Adultery is the oldest of the grounds for divorce and Scots law provides that irretrievable breakdown of the marriage will be established if, ‘since the date of the marriage the Defender (the other spouse) has committed adultery’. Adultery is defined by Scots Law as “voluntary sexual intercourse with a person of the opposite sex who is not one’s spouse”. It is for example it is not adultery for a woman to have donor insemination without her husband’s consent, even when a child is conceived. Sexual intercourse, with penetration, is essential to prove a case of divorce on the grounds of adultery. It is, for example, not adultery to have a lesbian or homosexual affair. The sexual act must be voluntary and therefore a woman who is raped is not guilty of adultery. Certain defences do exist to a divorce on the ground of adultery, e.g. where the adultery has been condoned by the other spouse who continues to live with the other party in the knowledge that adultery has been committed by the other party.
We are in a position to offer advice regarding all aspects of making a claim for financial provision on divorce. Such claims would include a transfer of title in respect of property, paying of a capital sum and claims in respect of any pension held by the other spouse as at date of separation. Additional general information regarding financial provision is available on the following pages: