Separation and Divorce
You may find this advice guide useful if you have recently separated from your partner and are now a single parent. It is a guide to the questions, issues and concerns you may have to consider.
This advice guide covers your income, housing, division of belongings, arrangements for your children, legal services, divorce and domestic abuse.
There are references to advice guides and organisations where you can get details on the issues raised but please call the Lone Parent Helpline for further information and advice.
Lone Parent Helpline:
It is likely that your household income will decrease when you become a single parent but there may be financial support depending on your circumstances.
There are a number of benefits you can claim if you have a limited income. These include:
- income support,
- jobseekers allowance,
- employment and support allowance if you have an illness or disability,
- tax credits,
- universal credit
You may also get housing benefit to help with rent, a reduction in your council tax and there is a Support for Mortgage Interest loan you can apply for if you own your home. There is also help to pay for childcare if you work.
Which benefits you get will depend on circumstances such as the number of children you have, your savings and whether you are working or not.
The parent providing the majority of the care for your children will be entitled to maintenance from the other parent. The parent providing the least amount of care is liable to pay maintenance irrespective of whether you were married or not. No maintenance is paid where separated parents share the care of their children equally.
Usually the best way to decide how much maintenance should be paid is for both parents to agree on an amount. Where this is difficult parents can use the Child Maintenance Service but there are charges involved. See the Child Maintenance advice guide or call Child Maintenance Options Service for more information:
Where you are going to live after you separate from your partner is likely to be one of the main issues you’ll have to consider.
Considerations if you rent you home with your ex-partner
You will need to decide if you wish to stay in your home or leave. If you wish to leave or if both you and your ex-partner agree that you remain, this may not be a problem as long as your landlord is happy for you to continue with the tenancy and you are able to pay the rent. Depending on your circumstances you may get housing benefit, or universal credit, and council tax reduction to help pay your rent and council tax.
If you and your ex-partner cannot agree who remains in the family home you could both leave or the matter could go to court to decide who stays.
Considerations if you or your ex-partner own your home
If both you and your ex-partner are named on the deeds of your home, or if you are married or in a civil partnership, you are each entitled to a share of the property. There are a number of options:
- One partner could buy the other out
- The house could be sold and any equity or debt divided
- One partner could gift their share to the other.
These options need careful consideration and should involve the advice of a solicitor as there may be circumstances you have not considered that could affect how you divide your home.
If you and your ex-partner are not married, or in a civil partnership, and only one of you is named on the deeds then it is usually only that person who has a claim to your home but again you should seek legal advice. For information and advice on housing issues contact Shelter Scotland:
Dividing belongings, assets and debts
As well as your home there may be other property, assets, belongings and debts that you and your ex-partner need to consider. How your belongings and assets are divided can depend on whether you are married, in a civil partnership or living together among other things. It is always best to get advice.
Dividing your belongings
As part of a couple you may have collected a lot of possessions such as furniture, ornaments and even kitchen appliances that need to be shared when you separate. Items that have been given to either of you specifically will belong to that person but other possessions will need to be divided. If you are finding this difficult to do, particularly if the possessions you are arguing over are valuable, it is best to get help from your solicitor although this could be lengthy and expensive.
Legal advice should always be sought if you have property, business assets or pensions as dividing these is complicated.
It is advisable to seek help from an expert debt adviser or solicitor if you have accumulated debt while with your partner as it is not always obvious who is responsible for particular debts. A debt adviser will not only tell you which debts you are liable for but can also help you reduce how much you owe so get advice as soon as possible.
For help dealing with debt contact your local Citizen’s Advice Bureau, local council or call National Debtline:
Caring arrangements for your children
When you separate from your partner you both need to agree on how you continue to care for your children.
Generally parents who are/were married, or in a civil partnership, both have the same right to make decisions on behalf of their children and responsibility to care for them. Where the parents are not married, and not in a civil partnership, only the mother will have rights and responsibilities unless both parents names are on the birth certificate, they have signed a Parental Responsibility and Rights agreement (which has been registered with the court) or the parents have been given them in court. Whatever the legal situation it is considered best for the children to have contact with both parents unless there is a good reason why they shouldn’t.
There are no right or wrong arrangements. The best plan is the one that works. The Scottish Government’s Parenting Plan pack is a useful tool for making arrangements for your children. This pack contains information advice, and a booklet you can fill in to help you arrive at an agreement.
You can get a copy of the Parenting Plan from the Lone Parent Helpline or the Scottish Government Publications Line:
If it is difficult for you both to agree on when you see, and how you care for, your children you could consider using a family mediation service. A qualified mediator will try to help you find a suitable arrangement. Your children may be able to take part too depending on their age.
Contact Relationships Scotland for information on mediation services:
Where your ex-partner is denying you contact with your children or asking for an unreasonable amount of contact you may need to seek legal advice (see ‘Getting legal advice’ below).
This is likely to be a difficult time for your children. It may be hard for them to understand what is happening and why their parents don’t live together anymore. Parentline may be able to offer support to you on how to explain the separation to your children. You may also be able to find suitable books from the library for both you and them.
ParentLine Scotland lines are open seven days a week, 365 days a year:
- ParentLine Scotland: 08000 28 22 33
- Email: email@example.com
- Web: www.children1st.org.uk
It may be worthwhile letting the other people your children have contact with, such as child minders or teachers, know that your children may be upset. This will allow them to be prepared and also to look out for, and let you know of, any behaviour that may be a cause for concern.
Your children’s school may be able to refer your children to support services if need be or your GP can refer to family counselling services although there could be a waiting list.
Find counselling services on The COSCA Register of Counsellors and Psychotherapists:
See the Contact With Your Children advice guide for more details on the issues raised above.
Legal issues, considerations and services
Finding a solicitor
Choosing the right solicitor is important. Get personal recommendations from family or friends who have used a family law solicitor. It is important to try to get this right from the start as changing solicitors ‘mid-stream’ can be difficult. Choose a solicitor who specialises in family law if possible.
You can check for solicitors who practice family law in your area at the Family Law Association website:
If you are on a low income you may be entitled to legal aid to help with the costs. Not all solicitors offer legal aid, you can find those who do through the websites of the Family Law Association and Scottish Legal Aid Board:
When you go to your first meeting with a solicitor you will need to take with you two forms of identification showing your name and address. One form could be a council tax statement, bank statement or utility bill (within the last three months); the other should be a form of photographic identification such as a passport or driving licence.
Without this information, your solicitor may not be able to proceed. You may also want to take your marriage certificate and children’s birth certificates if you have them (originals, not photocopies).
You should be prepared to provide your solicitor with the following information:
- Details of all children in the home (even if not from this marriage), their dates of birth and schools they attend.
- Contact details for yourself and your husband/wife.
- Details of employment either of you have.
- An estimate of the value of your property and mortgages/loans secured together with details of the lender.
- Details of any other matrimonial assets including pensions.
- A list of your debts if you have any, including credit and store card details.
- A brief summary of your financial expenditure. You don’t have to provide many details at this stage but it will help your solicitor to gauge your current situation and lifestyle.
- If either of you have been married before, details about the divorce and any court orders made.
CALM mediators are family lawyers who have at least seven years of family law experience and who have undergone a period of training as mediators before being accredited by the Law Society of Scotland as Family Law Mediators. They are trained to deal with all issues arising from separation and divorce including child related matters, financial and property issues. The mediator is non-judgemental and will assist parents in reaching a mutually acceptable resolution. An hourly rate is charged and the cost is shared between the couple in whatever proportion they agree. Costs can be met through legal aid, if you qualify.
- To find a CALM mediator visit: www.calmscotland.co.uk.
Collaborative family lawyers
The collaborative process aims to avoid drawn-out legal disputes and gives separating couples a way of working out a solution together. Each person has their own solicitor who will advise them throughout the process. A series of meetings take place which the separating couple and both their solicitors attend. Each meeting will be focused on resolving any disputes over finances and/or the arrangements for the children, and the overall aim will be to reach an agreement which can be drawn up by the solicitors in a formal Minute of Agreement. Sometimes other professionals are involved in the collaborative process, such as financial advisers and family therapists. The collaborative process is based on a contract which the separating couple and their solicitors sign.
- To find a collaborative solicitor visit: www.consensus-scotland.com.
Scottish Child Law Centre
The Scottish Child Law Centre provides free expert legal advice and information on issues concerning children through their advice line, email and website.
The advice line is open Mon-Fri 9:30am to 4pm:
- Advice line: 0131 667 6333
There are two free helplines for under 21 year olds:
- For mobiles: 0300 330 1421
For landlines: 0800 328 8970
Paying for legal services
Legal aid and assistance
If you are on a low income you may be entitled to legal assistance to help pay for the service provided by your solicitor or legal aid to help with the costs of going to court. Victims of domestic abuse and those who have received support from the Scottish Welfare Fund are exempt from civil court fees.
Any legal assistance/aid awarded may have to be repaid if you receive a lump sum or property as part of the divorce settlement.
Speak to your solicitor or visit the Scottish Legal Aid Board for more information:
Grounds for divorce
There are two legal grounds for divorce in Scotland: the marriage has broken down irretrievably, or an interim gender recognition certificate has been issued to either party after the date of marriage and the other party does not consent to the marriage continuing after a full gender recognition certificate has been issued.
Irretrievable breakdown of a marriage can be established in one of four ways:
- Unreasonable behaviour
- Separation for at least one year where both parties consent to divorce
- Separation for at least two years where there is no mutual consent.
The date of separation, known as the relevant date, is very important when it comes to divorce. It is the date when a married couple actually separate from each other. This usually means that you start living in different accommodation but you can also live separately under the same roof. Most significantly, it is the date when matrimonial property is valued for separation/divorce purposes. It is also the date used to determine one or two years separation if this is being used for grounds for divorce.
The cost of a divorce
A divorce action can cost anywhere from around £130 to £6,000 or more. How much it costs will depend on a variety of factors like whether the divorce is defended or not, whether there are disputes over money, property or children, whether welfare reports are required and the number of solicitors involved in the case.
If there are no children of the marriage under the age of 16, and no financial matters to sort out, you may be able to use the simplified or “DIY” divorce procedure if certain other criteria are met.
Forms and guidance notes can be found on the Scottish Courts website:
Where there are children of the marriage under the age of 16 it will be necessary to apply for divorce using the “ordinary procedure”. Obtaining an ordinary divorce will be more costly than a simplified divorce even if there are no financial or child-related matters to be sorted out.
The divorce process
In an undefended divorce, where there are no disagreements over arrangements for children or finances, affidavit evidence (a signed statement made on oath) from two independent witnesses will need to be lodged with the court in support of the divorce application. The affidavits must contain confirmation of the date of separation and details of the arrangements which are in place for the children. In a defended divorce action, in which there are disputed issues regarding the finances and/or the children, additional hearings may be necessary to reach an agreement on these issues. The sheriff will then reach a binding decision based upon the evidence heard.
You and your ex-partner can decide between you how to meet the legal costs of a divorce. If you cannot agree, then the court will decide who pays. The court has complete discretion to order either party to pay all of the costs. If the court decides not to make an order for costs, then each party is responsible for their own legal costs.
Minute of Agreement
It is common for couples to reach an agreement on matters such as financial provision, where the children will live, contact arrangements and sharing of property, without going to court. The terms that have been agreed will ordinarily be drawn up by solicitors in a formal Separation Agreement known as a Minute of Agreement. Minutes of Agreement are usually registered in the Books of Council and Session, which means they are legally binding, enforceable contracts. If a couple manages to resolve the issues arising from their separation by entering into a Minute of Agreement, the divorce itself should be relatively straightforward.
Although an application to the court will still be required there will usually be no need for parties to attend court in person.
Sometimes a couple will reach an agreement only after the divorce is already underway in the courts. In this case, the settlement that is eventually reached is called a Joint Minute of Agreement.
What is domestic abuse?
Domestic abuse is not uncommon. It is when one person in a relationship tries to dominate and control the other person. It is when your partner makes you feel frightened or stops you making your own decisions. Abuse can be verbal, psychological, emotional or physical.
It can include any of the following:
- Kicking, hitting, punching
- Being called names
- Being pressurised to have unwanted sex
- Not allowing you to see friends and family
- Watching your movements or listening in to your phone calls
- Making you think you are crazy
- Threatening to kill you
- Controlling money
- Smashing household goods
- Violent behaviour or abuse is never justified. You need to think not only of your own safety, but that of your children as well.
If you are in imminent danger call the police, from a landline or mobile, on 112.
You can also report any incidence of violence or abuse to your local police station. The police can put you in touch with a domestic abuse liaison officer, someone who specialises in dealing with this kind of situation. If there’s sufficient evidence, the police can arrest your partner. Evidence of the abuse can come from witnesses, text messages, medical records and previous reports you have given to the police. The police will send a report to the Procurator Fiscal. A Procurator Fiscal (Fiscal or PF) decides whether your ex-partner should be prosecuted. A court of law will then decide if your partner should stay in custody. You can contact Scottish Women’s Aid, Scottish Domestic Abuse Helpline or Abused Men In Scotland (AMIS) for more information and support.
Draw up a safety plan for you and your child in case you have to leave home in a hurry. Put emergency contact numbers on your mobile phone. Have a bag ready to grab with some clothes, your child’s favourite toy, identification, driving licence, medication, birth certificates, passports, some money and benefit/tax credit paperwork. Agree with a friend or relative that you can go to them or contact Scottish Women’s Aid or the Scottish Domestic Abuse Helpline.
Scottish Women’s Aid
There are branches of Women’s Aid across the country providing safe refuges for women and children and practical and emotional support to allow you to recover and rebuild your life.
Scottish Domestic Abuse Helpline
If you feel you or your children are at risk you can ring the Domestic Abuse and Forced Marriage Helpline Scotland, which is open 24 hours a day. The helpline will be able to direct you to your local Women’s Aid for support.
- Domestic Abuse and Forced Marriage Helpline Scotland: 0800 027 1234
Abused Men in Scotland (AMIS)
AMIS supports men who are experiencing or have experienced domestic abuse.
Help from a solicitor
A solicitor can obtain a legal order to help protect you from abuse. You may be able to get Legal Assistance to help pay for this service (see above).
An interdict is a court order that can bar your partner from threatening or assaulting you. It can prevent a partner from coming near your home, work or your child’s school. Your solicitor can also ask for powers of arrest to be attached to the interdict. This means if the interdict is broken, the police can arrest your partner without a warrant.
Powers of arrest can be for a period of up to three years.
A court may also issue a domestic abuse interdict which if broken becomes a criminal offence. This could carry a prison sentence of up to five years, a fine or both.
In an emergency, a court can provide a temporary interdict within 24 to 48 hours.
A non-harassment order is a court order that prevents your partner, their family or another person from behaving in a way that causes you distress or fear. A non-harassment order can be obtained through the courts. If a non-harassment order is broken, this becomes a criminal offence.
An exclusion order is a court order that suspends the right of a married person, a civil partner or a cohabiting partner to live in the family home. In other words it prevents your partner from entering your home. An exclusion order can be asked for if you or your children have been harmed or threatened with harm.
- Speak to a solicitor or Scottish Women’s Aid for information and support obtaining a court order.
When you decide to separate, there are a number of people you may want to inform:
- Landlord or housing office
- Revenue and benefits department of your local authority – if you receive housing/council tax reduction
- Mortgage lender
- Bank – if you have a joint account you may want to have this frozen to prevent your partner withdrawing the money
- HM Revenue & Customs – if you are receiving tax credits; your joint claim will end and you will have to reapply as a single parent
- Department for Work and Pensions – if you are receiving benefits
- Credit companies
- Fuel companies
- Telephone company
- Children’s school
- Insurance companies
- Post office – for forwarding mail
- GP and dentist