We’ve put together some of our most frequently asked questions. Click on the + sign to reveal the answers. If you would like to suggest a FAQ please contact us.
Unfortunately we do not offer a Legal Aid option. You can search for a solicitor that does Legal Aid work on the Law Society of Scotland website.
We’ve put it in an easy to use format on the ‘Your Options‘ page.
There is only one ground of divorce in Scotland, that the marriage has broken down irretrievably. This can be established by 1 years non-cohabitation with consent, 2 years non-cohabitation without consent, adultery or unreasonable behaviour. The behaviour of your spouse is not generally relevant to the overall financial settlement. The exception is if they have behaved in such a way as to negatively impact their finances. For example, frittering away a family fortune on a gambling habit.
My spouse and I never got married although everyone thinks we are married. If we separate do I have rights as a common law husband or wife?
No. There is no such thing as a common law husband or wife in Scotland. If you are not married then you will have some rights under the Family Law (Scotland) Act 2006 but these are not the same as if you were married.
Yes. You can commit adultery up until the point you are divorced!
My spouse and I got married abroad but we now live in Scotland. Because we got married in abroad do we have to get divorced there too?
In Scotland you can generally apply for divorce in the local court of the area in which you are habitually resident.
Various factors can impact on this. Once we have more information in relation to your case then timescales can be discussed in more detail. It is important not to rush a settlement in relation to your children or even your finances. These are important decisions and you should give yourself time to consider all of your options and reach a settlement which is best for you.
Whilst there is no legal requirement for you to have a solicitor, it is advisable for you to seek legal advice early on in your separation. A separation can be a very uncertain time and consulting a specialist family lawyer can provide some reassurance as to your rights and obligations.
No. A solicitor cannot act for you both. To act for you both would be against the Law Society of Scotland professional practice rules and would also be a conflict of interest.
In Scotland, the financial settlement that you have reached should be recorded in a document called either a Minute of Agreement or Separation Agreement. That is a contract between you and your partner. It is sensible to have the agreement checked and the Minute of Agreement prepared by a solicitor to ensure that it is watertight.
In Scotland, you must resolve the financial side of your separation before getting divorced. The reason for this is that your right to make financial claims on your spouse is lost on divorce. Once your finances are resolved then you can apply for divorce. In Scotland, you have to prove to the court that your marriage has broken down irretrievably before the court will grant your divorce.
You can use the simplified divorce procedure if you do not have children under the age of 16 and you have been separated for 1 year with consent or else 2 years.
Yes prenuptial agreements are legally binding in Scotland. Generally they are used to give protection to someone getting married with pre-existing assets.
My partner and I never married but have lived together for a number of years, do I still have rights?
Since 2006 cohabiting partners have had the ability to make a financial claim on their partner following the breakdown in their relationship. The rules are very different to those that apply to marriage. There is also a very tight timeframe of 1 year in which to make a claim. Receiving early specialist advice is therefore essential.
Yes, you can either continue using your married name or else revert to your maiden name. If you have children then you should not change their surname without considering whether it is in their best interests. You should also agree any such name change with your spouse.
The first thing to consider is what you want to happen to the house. Do either of you want to stay in it? Could either of you afford to take over the house and pay the mortgage and other bills? There are various ways to try and ensure that you stay in the house even if you can’t afford to buy your spouse out immediately. You could stay in the house for a period There are various ways to structure a settlement if funds are not immediately available. It is important to speak with a specialist family lawyer who can give you advice as to your options.
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