Is your marital breakdown recent? If it is you will need some time to come to terms with the emotional consequences - anger, sadness, confusion. Hurried decisions can be unwise. But if you are at risk they may need to be made.

How do you get divorced?

Courts for the area where you or your spouse have been habitually resident for the last 6 months can grant divorces if satisfied that the marriage has irretrievably broken down, but evidence is only allowed of one or other of five situations:

• Whether your spouse has behaved towards you actively or passively in such a way that you cannot reasonably be expected to continue with the marriage. Mental health problems are not excused. This is an elastic ground which changes with social conditions. Often these cases are about indifference rather than aggressive behaviour nowadays. Where there is aggressive behaviour courts can make protective orders on a temporary basis at the beginning of the case.
• Whether your spouse has committed adultery. Often the adultery complained about is after the separation.
• Whether you have not cohabited (i.e. lived together as husband and wife would normally do - sleeping/eating/socialising together) for over one year and your spouse consents to being divorced.
• Whether you have not cohabited over two years.

Corroborative evidence from another person or source is required. However where there are no financial matters unresolved, no children under 16, and there is no history of mental illness a simplified form of application can be made without corroboration on the two year consent or five year grounds with help from your local sheriff clerk, who charges £62 and needs your marriage certificate

Should you seek a Separation Agreement?

Many people leave divorce until later and instead focus on negotiating terms from which an irrevocable Minute of Agreement may be drawn up separating their matrimonial property and obligations.

These agreements usually contain a clause discharging rights of inheritance from each other and in particular rights to make financial claims in a later divorce case. They usually focus on division of capital assets and liabilities rather than ongoing spouse maintenance payments. In that sense they provide a "clean break".

What financial provisions should you look for?

"Matrimonial property", which a divorce court will look at with a view to equalising between spouses, consists of everything of value acquired individually or jointly from the marriage to the date when co-habitation ceases (the "relevant date") which is often when one moves out, although it can sometimes be proved to be earlier.

There are exceptions to this, including houses bought before marriage to be used as a family home which become "matrimonial property" and pensions and policies started before marriage the value of which is apportioned for the period from marriage to relevant date. Gifts and inheritances from others do not become matrimonial property unless put into joint assets or accounts.

A schedule of assets and their value at the relevant date less liabilities is usually negotiated with a view to a claim for whatever is needed to bring the client up to half of the total and in some special circumstances more.

What results can you expect?

The court is empowered to:

• order transfers of property
• split pensions or earmark pension lump sums
• award capital payable in a lump sum or deferred or by instalments
• and, where division of assets is not enough, to order payment of a periodical allowance - but fewer of those are awarded nowadays and the amount and duration of the payments is usually restricted.

Similar provisions are usually negotiated and provided for in a Minute of Agreement in the majority of marital breakdowns. Few end up being decided by the divorce courts.

What about child maintenance?

If the children reside with you and your spouse has earnings in the UK an assessment can only be imposed by the Child Support Agency and not by the courts although they can order a top up. The CSA helpline will provide advice. They are planning to move onto assessment based on a percentage of net earnings starting at 15% for one child but have not yet started. People often include child maintenance provisions in a Minute of Agreement.

What about child care?

This can be the most difficult matter emotionally. When making orders about children, courts focus on what is best for the welfare of the child concerned, and parental recriminations and resentments are not encouraged. Some level of co-operation between estranged parents is needed for comfortable arrangements. Arrangements usually need to be flexible if they are to last.

Mediation is often recommended to improve communication about these things and to work from the basis that you both usually love the children and want the best for them.

What about cost?

Matrimonial work varies a great deal with the individual circumstances and outlooks. It is usually charged for on a time and line basis in detail based on what is actually done. See "How to pay for your legal case" for further information.

Apart from matrimonial work we offer advice and court services in a whole range of relationship matters - business - cohabiting couples - joint property disputes - and unjust enrichment claims - to mention just a few common situations.

Cohabitees

The Family Law (Scotland) Act 2006 which came into force on 4 May allows cohabitants, being:

• a man and a woman living together as if they were husband and wife, or
• two persons of the same sex living together as if they were civil partners

and taking account of the length of the period together, nature of the relationship and of any financial arrangements, to make certain claims, if appropriate, where cohabitation has ceased after 4 May 2006.

Claims, where the other cohabitant is alive, should be made within twelve months if cohabitation ceases and claims arising where the other cohabitant has died should be made within six months from the date of death. Claims against living cohabitants may relate to rights in household goods or money and property or may be for a capital sum taking account of the economic burden of caring for a child of which the cohabitants are the parents or allowing for economic advantage or disadvantage. Claims following the death of a cohabitant can arise where the deceased did not make a Will, was domiciled in Scotland and was cohabiting with the other at the time of death and may be for a capital sum or a transfer of property, taking account of the size and nature of the deceased's net intestate estate, any benefit to be received by the survivor and any other matter the Court considers apropriate but there is an upper limit and the award should not exceed what might have been paid to the survivor between spouses or a civil partner.

Cohabitants, including civil partners, would be well advised to consider entering into a Minute of Agreement at the beginning of the cohabitation, regulating ownership of property and financial responsibilities in the event of a separation.

Civil partners can pursue actions for dissolution of the civil partnership under Section 117 of Civil Partnership Act 2004 in similar circumstances to those used by divorcing spouses.

See also: Family Law Services