Actions for divorce in Scotland can be made at the Sheriff's Court or Session Court. In practice, it is simply an act in which an enormous amount of money is disputed, or by an international element, raised in the Session Court. If, as always, there are no controversial issues, no need to hire a lawyer.
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The Divorce (Scottish) Act of 1976 as amended by Family Law (Scotland) Act 2006 provides grounds for divorce. Family law issues are delegated, so it is now the responsibility of the Scottish Parliament and the Scottish Executive.
The financial consequences of divorce are handled by the Family Law (Scottish) Act 1985. It provides the division of marriage property on divorce. Matrimonial properties are generally all properties acquired by spouses during marriage but before their separation, as well as housing and furnishings obtained for use as a home before marriage, but excluding the property of being gifted or inherited. One of the parties in marriage may file a petition for a court order under the 1985 Act. The court may make an order for payment of capital amount, property transfer, periodic payment, and other incidental orders. In making orders, the courts, under the Act, are guided by the following principles:
- The net value of the marital property should be fairly divided, and the starting point is that it should be equally shared; but
- a fair account must be derived from the economic benefits gained by either party from contributions by others, and the economic losses suffered by either party for the benefit of another party or family; and
- The economic burden of raising a child from a marriage under 16 years should be shared fairly between the parties (but child support is usually not given by the court, as this is in most cases a matter for the Child Support Agency).
The Scottish court's general approach is to solve financial problems by granting capital amounts where possible, allowing for a 'clean break' settlement, but in some cases periodic allowances may be paid, usually for a limited period of time. Errors are usually not taken into account.
Decisions on parental responsibilities, such as residence and contact orders, are handled under the Children's Act of (1995). Guiding principles are in the child's best interests, although the initial assumption in practice is the best in children. interests to maintain contact with non-custodial parents.
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Reasons for divorce
The divorce is now governed by the Divorce (Scottish) Act of 1976 as amended by the Family Act (Scotland) Act 2006, which provides two legal grounds for divorce: "an irreversible description of marriage" or where one party has undergone a rejuvenation operation gender and obtain a temporary gender identification certificate. The irreparable damage is proven by one of the parties in the marriage which indicates that there is one or more obvious circumstances. This eliminates the need for judges to conduct an intimate examination of the relationship between the parties. There are "error" and "no errors" reasons provided in the Act, and the speed at which divorce can be obtained will be determined by what circumstances are relied upon in the divorce process. It is impossible for both parties to jointly appeal for divorce, divorce cases should always have people looking for divorce (pursue) and someone who opposes divorce (defender).
The circumstances that will lead to a finding by the court that there are irreversible details of the marriage are:
- adulterous adultery;
- defensive behavior that makes it absurd for the pursuer to live with defenders;
- do not live as a husband and wife for a year and have an agreement on divorce from both parties;
- did not live as husband and wife for two years when one of the parties objected to the divorce.
Adultery and behavior
If the pursuer sets out the irreversible details of the marriage on the basis of adultery or conduct then they can obtain an immediate divorce, while other reasons require some period of prior separation. Indirect evidence may be given to support the pursuer's claim and the case is determined "on the balance of probability" rather than "without doubt". Therefore, for example, the evidence of a husband staying in a hotel room with another woman for one night is likely to commit adultery, even if sexual intercourse can not be proven. Pursuers can not seek divorce based on their own adultery and the unfaithful sexual relationships committed by human rights defenders must be voluntary. To find a divorce on behavior defenders behavior should be such a reasonable person can not be expected to live with defenders. Behavior may stem from one event, although it shows a pattern more likely to convince the court, and it is irrelevant if the behavior is passive or active or caused by a mental disorder. There is no definite list of what constitutes basic behavior and case law is filled with different examples. The court's finding that HRDs are at "errors" for divorce, however, does not affect the amount of financial provision afforded or the arrangements on children.
Separation
If both sides do not live together as husbands and wives for a period of one year and both parties agree to a divorce, then this will form irreparable wedding details. Approval of a defense for divorce should be granted on trial and may be withheld for any reason or no reason at all. According to Stair, defenders for divorce will often use their consent as a way to bargain favorable terms or financial arrangements regarding children.
If the human rights defender does not approve the divorce, then the pursuers will only be able to set the irrevocable marriage details after the couple does not live together as husband and wife for two years.
Issuing divorce decisions
The court will suspend the divorce process if there is reason to believe that reconciliation between the parties is possible. The court may also delay issuing a decree for divorce in which either party will be prevented from remarriage for religious reasons and others may take steps to prevent these obstacles from arising, such as through religious cancellation of marriage. Once the obstacles are removed, the court will issue a divorce decision.
See also
- Divorce in England and Wales
References
Source of the article : Wikipedia
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