Divorce Monday: Fact or Fiction?

Divorce Monday: Fact or Fiction?

Named by some as ‘National Divorce Day’ in the UK, the first Monday of the New Year has, in recent years, become known as ‘Divorce Monday’.
It is a matter of fact, rather than fiction that following the re-opening of Solicitors offices following the festive break, the first Monday of the New Year sees an increased number of enquiries from parties who have separated.
Many of the clients who approach us during this time are seeking advice as to the steps they require to take to formalise their separation, with a view to becoming divorced as soon as is possible.
We know that this is an extremely difficult and challenging time for those who have separated over the festive period. We do, however, endeavour to provide expert advice and guidance as sensitively and efficiently as is possible.

Matrimonial Finances
If the separation is amicable and a division of matrimonial finances has been agreed, we can often prepare a Separation Agreement.  This is a document which sets out how matrimonial assets and liabilities are to be divided between the parties.  An agreement of this nature will often narrate a timescale for divorce and stipulate who will apply to the Court for divorce to be granted.
If financial matters remain unresolved, our Solicitors can guide clients through the processes involved in reaching an agreement, and provide advice tailored to their specific circumstances.
Various types of financial Orders can be sought if necessary, including, but not limited to; Pension Sharing Orders, Property Transfer Orders, or Orders for Aliment/Periodical Allowance (Spousal Maintenance).
It is always important for parties to try to agree a division of matrimonial finances before placing matters in the hands of the Court.  At Macleod & MacCallum our Family Law team can assist with this.  We will identify the process that will work best for you and your family whether that be by sending settlement proposals by letter or email, having joint meetings with you your ex-partner and their solicitor; or using the ‘Collaborative’ approach or using Solicitor Mediation.

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.

Arrangements for Children
If there are any children of the marriage under the age of 16 it is important for arrangements relating to their care and wellbeing to be agreed between parties wherever possible. We always encourage our clients to take a child-focussed approach to matters relating to their children. It is vitally important during challenging times that the best interests of the children are put first and foremost to avoid them being placed in the centre of any conflict.

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:
a) once parties have been separated for 12 months if both parties consent to divorce being granted; or,
b) 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,
c) Immediately following separation if one spouse’s unreasonable behaviour caused the breakdown of their marriage; or,
d) 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:
a) once parties have been separated for 12 months if both parties consent to divorce being granted; or,
b) 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

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