Simplified Divorce Procedure

Following on from yesterdays topic, Joint Minute of Agreement,
here is a quick run through the grounds for divorce and simplified divorce procedure in Scotland.

Grounds for Divorce
Divorce is available where a marriage has broken down irretrievably. This can be established by the pursuer proving one of four factual circumstances. Citing behaviour or adultery requires strong evidence involving at least one witness. 88% of divorces granted in 2006 were on the basis of one or two years separation .
• adultery: the defender has committed adultery
• behaviour: the defender has behaved in such a way that the pursuer cannot be expected to cohabit with him or her
• one years’ separation with consent: there has been no cohabitation between the parties at any time during a continuous period of one year and the defender consents to the granting of a divorce
• two years’ separation: there has been no cohabitation between the parties at any time during a continuous period of two years

Simplified Procedure
Conditions
• the ground for the divorce being relied upon is one of the separation grounds
• the action is not being defended by the other party to the marriage
• there are no children under 16
• neither party is applying for an order for financial provision on divorce
• there is no indication that either of the parties is unable to manage his/her affairs because of mental illness or impairment

To apply for a divorce under this procedure the applicant will have to fill in a form giving the reason for the divorce and information to support it. If the ground for divorce is a one year separation with the agreement of the other party, Form SPA is used and the applicant will have to get the other party to sign a consent form. Form SPB is used if the ground for divorce is two years without agreement.

The applicant must swear that the facts stated on the form are correct before a Notary Public or a Justice of the Peace who will sign the form, free of charge. The completed form, the marriage certificate and a fee is returned to the local sheriff court or Court of Session. The court will send a copy of the application for divorce to the other party. The other party then has time to object to the divorce. As mentioned above, if he or she does object then the simplified procedure cannot go ahead.

If the other party does not object to the divorce, the court will consider the application and let both parties know the result. If the application is successful the court will grant a ‘decree of divorce’ The whole process usually takes about eight weeks.

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Joint Minute of Agreement

In Scotland a divorce is not usually granted until all financial matters and issues related to children are resolved. Written agreement about financial provision and arrangements for children can be reached in the form of a joint minute of agreement which the court converts into a binding court order.

Finances The matrimonial assets and debts are those accumulated between the dates of marriage and separation. Inheritances and gifts are not matrimonial assets. On divorce matrimonial assets are shared 'fairly' (equally) and reflect the unequal burden of childcare which can arise on divorce, or compensate one party for any economic disadvantage they may suffer. Non-matrimonial assets are not shared but are a resource taken into account when sharing the matrimonial assets.

Spouses have a mutual obligation of financial support. After they have separated, but before they are divorced, this is known as aliment. Maintenance may also be payable after divorce to allow for a period of readjustment. This is called periodical allowance and lasts for a maximum of 3 years unless there are special circumstances.

Children Parents have equal rights and responsibilities for their children.

Parental Responsibilities

• to safeguard and promote the child’s health, development and welfare

• to provide, in a manner appropriate to the stage of development of the child, direction and guidance

• if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis

• to act as the child’s legal representative.

Parental Rights

• to have the child living with you or otherwise to regulate the child’s residence

• to control, direct or guide, in a manner appropriate to the stage of development of the child, the child’s upbringing

• if the child is not living with you, to maintain personal relations and direct contact with the child on a regular basis

• to act as the child’s legal representative.

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Mac Complacency

Mac users be warned! Like many fellow Mac users I relied on Macs not being targets for hackers, viruses or worms and only very recently installed extra protection. According to the Institution of Engineering and Technology magazine this was rather timely as the Cybercrime Trends Report from IT security firm Sophos predicts 2008 will see an increase in malware activity infecting Macs.

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Children's Inheritance

According to today's Herald Nigella Lawson is the latest of the super rich to disinherit her children believing that this will save them from a life without direction. "I am determined that my children should have no financial security," said Nigella, "It ruins people, not having to earn money."

Now I'm all in favour of meritocracy, but it seems to me as though someone publicising what is essentially a private family matter and not wanting to leave their children any financial security has rather lost direction themselves.

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Family Lore Blog

Random thoughts of a family lawyer

"Admitted as a solicitor on April Fool's Day (appropriate!) 1985. Since been working almost exclusively in family law. Member of Resolution and Law Society's Family Law Panel."..

Although I've only recently started to write my own blog over the last year or so I've become addicted to reading blogs and John Bolch's Family Lore (see my Blogroll) is one of my favourites.

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