Blue Monday: Divorce after Christmas

Whilst Christmas is a happy and joyous time for many, the idea of spending time together when family relationships are strained can be both difficult and challenging.  Some couples feel like they are just trying to make it through to the other side of the festive period.  As a Family Law Team we often see a rise in the number of new instructions we receive on the first Monday of the New Year.  The majority of these enquiries are received from parties who have separated over the festive break.  This is why the first Monday of the New Year has, in recent years, become known as ‘Divorce Monday’.

If you have separated from your spouse over Christmas, do not worry, help is on hand.  Our friendly and approachable family law team endeavour to provide expert advice and guidance to you as sensitively and efficiently as is possible.

How can we help?

If you have separated from your spouse and are on good terms with them, it is likely that a division of matrimonial finances can be agreed directly.  We would encourage open dialogue between yourself and your spouse with a view to the division of your matrimonial finances been agreed directly between you.  If you’re able to do this, we can then often prepare a separation agreement setting out how your matrimonial assets and liabilities are to be divided.  When we prepare an agreement like this, it will usually provide timescales for divorce and detail the agreed position that has been reached as to the division of your matrimonial finances.

If you find yourself in the position where financial matters remain unresolved, our experienced family law solicitors can guide you through the process involved in reaching an agreement.  We will provide you with advice tailored to your specific circumstances and advise you  as to what we believe is fair with reference to the law in this area.

The Sheriff Court can grant a variety of different kinds of financial orders including but not limited to; Pension Sharing Orders, Property Transfer Orders, Orders for spousal maintenance known as aliment or periodical allowance in Scotland. You need to be mindful, however, that placing matters in the hands of the court should always be a last resort.  We therefore always actively encourage our clients to seek to divide their matrimonial finances by agreement wherever possible.

Our experienced team of family lawyers can assist with this process for you.  We will identify the process that will work best for you and your family.  Sometimes that involves sending settlement proposals by letter or email.  On other occasions having joint meetings with your spouse or their solicitor, or using a collaborative approach or solicitor mediation, would be the best fit.

You find below additional details of each of those processes:

Collaborative Law

Collaborative law involves parties and their solicitors having a series of meetings with a view to reaching an agreement in respect of financial, legal and practical arrangements arising out of their separation.  At the outset of matters parties sign an agreement whereby they agree to take a non-confrontational approach to their separation which is focussed upon achieving a positive solution. Court proceedings will not be raised to deal with financial or child law matters as part of the Collaboration process.  This process works best for those who are committed to resolving their differences and agreeing settlement terms through open and honest discussions.

Solicitor Mediation

Mediation is a process in which those who are in dispute post separation, seek to build agreement and/or improve understanding with the assistance of a trained mediator, accredited by the Law Society of Scotland, acting as an impartial third party. Mediation is voluntary and aims to offer people the opportunity to be fully heard and decide how to resolve their dispute themselves. Mediation can be used to help people with financial or child law disputes.

What if we have children?

Arrangements for children require to be a very important consideration for separating couples.  If there are any children of the marriage who are under the age of 16 it is important for arrangements relating to their care and well-being to be agreed between parties wherever possible.  As a firm we encourage our clients take a child-focused approach to matters relating to their children.  Sometimes, parents can place their children in the middle of conflict.  It is therefore important that during what challenging and difficult times, that the best interests of the children are always placed first and foremost.  We can provide you with advice and make you aware of tried and tested methods which have worked in terms of ensuring that the children’s best interests are safeguarded whilst any negotiations between you are ongoing.

Once all financial matters and arrangements for your children have been resolved, divorce can then be a consideration.  The ways in which you can divorce depend on your circumstances and you will find guidance as to this below:

Divorce

If there are any children of the marriage who are under the age of 16 the only way for parties to divorce is by raising what is known as an Ordinary Cause divorce action at their local Sheriff Court.  This is necessary because the Sheriff will require to receive assurances from the party seeking to divorce, that suitable arrangements are in place for the children, and that no orders require to be made in respect of contact with the non-resident parent.

An Ordinary Cause Divorce action can be pursued:

1. once parties have been separated for 12 months if both parties consent to divorce being granted; or,
2. 2 years after separation if one party to the separation does not consent. Once parties have been separated for 2 years the consent of the opposing party will not be required; or,
3. Immediately following separation if one spouse’s unreasonable behaviour caused the breakdown of their marriage; or,
4. Immediately following separation if one spouse committed adultery during the course of the marriage.

If there are no children of the marriage under 16 a Simplified Divorce could be pursued by either party, provided that all financial matters have been resolved.  A Simplified Divorce involves a standard application form being filled in and lodged with the Court, rather than a formal Court action requiring to be raised.  The Application will require to be signed by the Applicant under oath in the presence of a Solicitor/Notary Public.

A Simplified Divorce can be pursued:

1. once parties have been separated for 12 months if both parties consent to divorce being granted; or,
2. 2 years after separation if one party to the separation does not consent. Once parties have been separated for 2 years the consent of the opposing party will not be required.

Can we help?

If you are reading this article and feel that you require advice or guidance on any of the issues covered here; or if you are recently separated and in need of legal advice as to your options – please do contact our friendly and dedicated Family Law team on 01463 239393; or by sending an email enquiry to family@macandmac.co.uk