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Is it possible to divorce without going to court?

If you have been separated for either one or two years, you have no children under 16, and you have agree on how to split up your finances, you can apply to the court for a divorce through the simplified procedure.  This means that you will most likely not have to attend court. 
If you do have children under the age of 16 you must apply to the court through the ordinary procedure however if financial matters and all issues in relation to the children are agreed you will probably not have to attend any hearings at court. The court will likely accept affidavit evidence.
However if matters are not agreed and you need a Sheriff to hear evidence and make an order you will likely have to attend at least some court hearings. 

Before you raise an action in court for divorce there are a few things you should consider 
Why should you avoid court? 

  • It is expensive to raise court proceedings and to fund a case through to conclusion of an evidential hearing and it is even more expensive if you are unsuccessful as you may also have to pay expenses to the other party.   

  • It can further deteriorate an already difficult relationship 

  • It will be stressful for you and other members of your family such as your children 

  • While the Sheriff will make what they think is the best order in the circumstances you may not agree and it is likely that both you and the other party will be somewhat unhappy with the order made. 

  • Court hearings take time out of your day. If you are employed you will require time off to attend hearings.

  • The court process can take many months (even years) to be completed.

How can you avoid going to court? 
Prioritise your needs
Be clear what your priorities are.  Make sure your solicitor knows what you want out of the divorce.  This will enable them to negotiate more effectively on your behalf.  
Focus on the large issues at hand.  If you are side tracked by small squabbles it will be harder to achieve a compromise that you are happy with.  
Be understanding
Understand that while you may be ready to move on from the relationship, the other person may be still hurting and in a different place emotionally from you.  If this is the case ensure you tell your solicitor.  Different approaches to negotiations are suitable in different circumstances and finding the right approach will increase the chance of successful discussions.
Be realistic 
The majority of financial divorces are split 50/50.  You may have a strong argument for a different share and you should pursue it however if you are simply aiming to stop the other party from securing their fair share then you are unlikely to succeed and it is highly likely you will be found liable for their expenses. 
Be sensible  
A decree of divorce does not have the ground of divorce on it.  Therefore, nobody but you, the other person and the people you choose to tell will know why your marriage broke down.  While one person’s behaviour may be the cause of your divorce it will not impact the way the court deals with the financial matters. 
Take advice 
Listen to the advice of your solicitor.  They know the Sheriffs and the court process, and they are best placed to try and save you time, money and disappointment. 

At MacBeath Family Law we offer a one hour consultation with a follow up letter of advice for the sum of £240 (including VAT), contact us now to discuss how we can help you.

As always, the purpose of this blog is to provide an overview of the position in Scotland and should not be relied upon as legal advice.  You should always obtain specialist legal advice about your own circumstances.  Please call 0131 5818 652 or email to arrange an appointment.  

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