Ten myths about divorce in Scotland

Ten myths about divorce in Scotland - Divorce is never easy. It is often portrayed on TV, film, and other media, with details missing about what the process is like in real life. To add to the confusion, there are some differences in the process here in Scotland.

In my 35-year career as a family lawyer, I have seen what a relief it can be when clients are clear about the process. Here are the top ten misconceptions I've encountered over the years.

Ten myths about divorce in Scotland

1. Divorce must be filed in person at the Court of Session in Edinburgh

Local sheriff courts are also able to deal with most Scottish applications for divorce since a change in the law in the 1980s. In most cases, it is no longer necessary for either of the spouses to attend the court in person. Most family solicitors will encourage their clients to try to resolve financial issues and matters involving children, away from the courts.

2. Divorce must be filed in the country where the couple married

It is very common in Scotland for family lawyers to apply for divorce here, even if the marriage took place outside Scotland. The courts will accept an application provided there has been a link to Scotland through habitual residence or domicile of one or both spouses for a sufficient period. Similarly Scottish courts are able to grant divorces to foreign nationals provided they meet the necessary residency requirements.

3. A "common law" spouse has the same legal rights as someone who is married or in a civil partnership

The Family Law (Scotland) Act 2006 changed the law to allow cohabitants to pursue certain financial claims against former partners. While the Scottish Law Commission has recently recommended reform of the existing law to reflect social changes, it does not extend to the rights available to spouses or civil partners.

4. The "culprit" spouse who causes a breakdown in marriage will be punished by the courts

The conduct of one spouse toward the other shall not affect the division of property and liabilities unless the conduct affects the value of the property. Negotiations (and if court intervention is needed) will focus on a fair division of marital property regardless of conduct.

5. Property inherited on divorce is ignored

The Family Law (Scotland) Act 1985 states that property owned by one of the spouses at the date of separation that has been inherited or gifted by a third party does not constitute matrimonial property . If any inherited property has already been sold or transferred prior to the breakdown of the marriage, the proceeds of the sale are often used to acquire other property that must be divided upon divorce. Arguments can be made for an unequal division of marital property and the value of inherited property may also be relevant, given the structure of the divorce settlement.

6. The family home has to be sold if you get divorced

While the courts have the power to order the sale or transfer of assets, including the family home, it is very common for settlement to be reached away from the courts, for example through negotiation or arbitration. It is common for one party to retain the home and take out any mortgages to offset the equity in the property against other assets such as savings, business or pensions.

7. Each party retains their own pension rights upon divorce

While in many cases it is unnecessary to seek a formal pension sharing order, the importance of occupational or personal pension entitlements should not be overlooked. It often happens that the pension is the most valuable asset in a marriage. With expert advice it is usually possible to reach agreement on pension sharing or as an offset against other assets.

8. Mothers have more rights to maintain children after divorce

Married parents generally have the same rights and responsibilities as parents in relation to their children. In the event of a dispute, the court will look at the best interests of the children and not what is best for their parents. The views of the children may also influence any decisions made regarding their residence or how often they visit the other parent.

9. Courts to decide the level of child support

Since the early 1990s a government body formerly known as The Child Support Agency and now known as The Child Maintenance Service handles most maintenance applications where there is no agreement between the parents It is possible Scottish courts may continue to have authority to rule on child maintenance applications if the paying party lives and works overseas and may be asked to determine issues such as the payment of school fees. For most parents it is better to reach a consensus about the level of child maintenance and document this in a formal, written agreement prepared by solicitors known as a 'minutes of agreement' Is known.

10. Husband has to pay his wife's legal fees for divorce

This has not happened in Scotland since the 1980s. Unless one party has acted unreasonably, it is fairly unusual in divorce cases to have an award of legal expenses. The usual approach is for spouses to meet their own legal costs, although creative solutions can be found to address money difficulties. 

While I have attempted to highlight and clarify some common misconceptions, each case will be based on its own facts and circumstances.