Divorce / Separation
Are you considering separating from your partner or maybe you have already separated? People sometimes ask what they need to do to establish a date for a legal separation. The answer to this is usually nothing. Separation is a factual matter and effectively it is when you stop living together as husband and wife. Usually, the date of separation is when you physically separate but it doesn’t have to be and you can be legally separated even although you are still living under the same roof.
The date of separation is important because of two things. Firstly, it can be the starting point for a one or two year period of separation that is required for a divorce. It is also important for financial reasons as any property or assets (or debt) acquired post-separation are not classed as matrimonial assets.
If couples are able to come to an agreement as to what they want done with various assets and liabilities, it is normal for parties to enter into a Separation Agreement.
Separation Agreements can be relatively straight-forward however issues such as Pension Sharing etc can make these more complicated. If you require assistance with reaching an agreement on these matters there are various dispute resolutions options available and we can help you decide which of these may be the best for your circumstances.
The only ground for divorce (with one exception) is if you can establish that the marriage has broken down irretrievably. There are four ways to establish irretrievable breakdown.
- If you have been separated from your spouse for a year and your spouse is prepared to consent then you can proceed with a divorce.
- If you have been separated from your spouse for two years, you can proceed with a divorce without requiring your spouse’s consent.
- If you are able to prove adultery then you can apply for a divorce immediately. If however you have known that your spouse has committed adultery and you continue to live with them for more than 3 months then you are deemed to have condoned that adultery and cannot then proceed with a divorce on these grounds.
- If you can establish that your spouse’s behaviour has been unreasonable to you then you can apply for a divorce immediately. You would have to provide evidence from someone else to confirm the position. Unreasonable behaviour does not necessarily mean just physical abuse. Issues such as alcohol or drug abuse or gambling can also factor.
If you want to obtain a divorce, it is advisable to try and agree all financial matters before proceeding. If you cannot do this you could end up with an action which is defended by your ex-partner and could, as a result, be a lot more costly.
Also, in Scotland it is not possible to obtain a divorce and then subsequently sort out any issues relating to finance. Once you have been granted a divorce, you cannot then subsequently make a claim for a capital sum or financial provision.