How quickly can I get divorced?

Divorce can be extremely distressing yet surprisingly a question often asked is how quickly can a divorce be obtained. Of course the answer is: it depends.

For a divorce to be granted there has to be an irretrievable breakdown of the marriage with no prospect of a reconciliation. If you cannot demonstrate this then you cannot get divorced.

The irretrievable breakdown of marriage can be established if one of the following is true:

  1. Since the date of the marriage, your spouse has committed adultery and you thereafter ceased to cohabit together as husband and wife (this is and will continue to apply exclusively to heterosexual relationships even after same sex marriage is introduced).
  2. Since the date of the marriage, your spouse has behaved in such a way that you cannot reasonably be expected to cohabit with them.
  3. You have not cohabitated with your spouse for a period of one year and your spouse consents to the granting of the divorce.
  4. There has been no cohabitation for a period of two years.

A Simplified Divorce is the fastest way to obtain a divorce and is essentially a form filling exercise. You must not have cohabited with your spouse for one year and have your spouse’s consent or been separated for at least two years. This simplified procedure can only be used if there are no children of the marriage under the age of 16 and no financial issues to resolve. The relevant form can be downloaded from the court website and is completed by the individual raising the action who must then sign an affidavit at the end of the form stating that everything in the form is true. This affidavit can be sworn before a notary public (most often a solicitor), a Justice of the Peace or a Commissioner of Oaths. The form is then submitted to the court along with the appropriate fee (currently £107). A divorce order is usually granted within 4-6 weeks of lodging the relevant paperwork with the court.

If there are financial issues still to be agreed upon or there are children of the marriage under the age of 16 you must use the Ordinary Procedure, which will require the assistance of a solicitor. A list of the parties’ assets requires to be lodged with the initial paperwork when a financial order is sought. If the action is not defended by your spouse a court order may be passed within approximately 6-7 weeks from raising the action.

If the action is defended because there are young children and custody and contact are disputed, or a financial order is requested or indeed the allegation of adultery or unreasonable behaviour is denied then it is extremely difficult to state with any certainty how long proceedings will take.

If you have any queries regarding divorce please contact Fiona Wayman on fhw@mitchells-roberton.co.uk or phone 0141 552 3422 to talk to her.

Property Prices Are Rising

On 2 April 2014, Mark Holden of GSPC, reported the good news that house prices in Glasgow and the West of Scotland rose by 7.4% in the last year. Transactions have also improved significantly with sales up by 30% on the same time last year and properties are taking on average 20 fewer days to sell than they were 12 months ago. Also according to the latest GSPC figures the average selling price in the area is now £120,000, up by £1500 on the previous quarter and by just over £8000 compared to the same time last year.

Professor Gwilym Pryce of Glasgow University who analysed the GSPC’s data stated “This is the largest annual rise in house prices in the West of Scotland since the end of 2007.”

He continues “It is, of course, too early to pronounce a housing market recovery based on a single quarter, particularly since we have already had several false starts. But it seems likely that the sustained fall in selling times together with a shortage of new properties coming onto the market will continue to put upward pressure on selling prices, at least in the near future”.

It seems the key issue is now one of supply. The number of properties coming onto the market remain well short of demand and stock levels are declining as a result. If prices do rise further, this will largely be due to a shortage of sellers.

Social Inertia ; a modern day problem ?

This is only my opinion.

I woke up the other morning with the sun streaming in through the window and after a leisurely breakfast I took the dog to the park where the grass was carpeted with crocuses and daffodils were swaying gently in the breeze. This week-end  the clocks will be going forward and as with every spring there is a sense of new beginnings. I felt great.

Then I went home and put my feet up with the newspaper, a freshly brewed coffee and warm scone. Very quickly my optimism and positivism began to lose their shine. I read about Putin’s territorial machinations, the latest trial of a household name on sex charges and of course bankers’ bonuses.

The BBC very recently reported that “The Co-operative Group is set to give pay rises and bonuses to its senior staff despite the near collapse of its banking division.” Euan Sutherland, the newish Chief Executive Officer, is recommended to receive a £3.66 million package while admitting that last year was the worst year in the Co-op’s 150 year old history.

The Independent on Sunday the 9th March 2014, also drew attention to the fact that Barclays where profits are down 32%, with 7,000 job cuts paid out bonuses of £2.4 billion. The Royal Bank of Scotland made losses of £8.2 billion but gave £3 million of shares to their new boss and Lloyds gave their CEO a bonus of £1.6 million and their staff a 2% pay rise.

Depressing news indeed. But you know what really gets to me is the apathy and lameness of our population placidly accepting just about everything. There may be flurries of righteous indignation but where is the fiery spirit of public outcry? How is it that Scottish people have in 100 years moved from tanks in George Square to meek willingness to accept inequality, wage deflation and job insecurity . Why is there such social inertia ?

Employment cases drop dramatically after the introduction of tribunal fees.

In May 2013, we blogged about the introduction of charges from 29 July 2013 to raise or appeal a claim at the Employment Tribunal.  The Law Society of Scotland has since noted that new cases lodged with the UK’s Employment Tribunals have plummeted by about three quarters.

The new fee structure involves payment of an issue fee when the claim is submitted and a hearings fee to be paid prior to the full merits hearing.

The Ministry of Justice’s Tribunal Statistics Quarterly for October to December 2013 reveal that 9,801 claims were received in that period, some 79% fewer than in the same period of 2012 and 75% fewer than the previous quarter.  Clearly, the introduction of fees is having a dramatic impact.

Claimants on a low income may not be required to pay the full fees and the Government has stated it is committed to reviewing the fee structure once implemented to assess its impact, in order to consider if changes are needed.

The Government’s reasons for the reforms are said to be to avoid “drawn-out disputes” which are “very emotionally damaging for workers and employees, as well as being financially damaging for employers”.  Few would argue with that but those aims might have been achieved by more robust case management, weeding out weak cases and striking out cases for unreasonable behaviour, rather than introducing a system which potentially deters those with genuine cases from enforcing their rights, purely for financial reasons.

Resolving Commercial Disputes

There are always going to be disputes in commerce.  That is the way of the world but I think there are some cardinal rules to follow if you find yourself in a contentious situation.

DO:

  • Try to negotiate an amicable solution.  Review what was agreed and how clear the agreement was.  Always keep evidence of negotiations including copies of letters and notes on conversations.
  • Assess whether you have a strong case.  Clarify how the other party has failed to live up to the agreement and consider what extent you may have contributed to the dispute.  Assess the loss you have suffered and the risks of a counterclaim.  Collate all evidence e.g. written contracts, correspondence and witness statements.
  • Decide whether you need legal advice.  Legal advice should be sought unless the argument is straightforward, represents a relatively small amount of money and runs no risk of counterclaim.  Clarify the costs and timescales involved in taking the recommended legal action.
  • Be prepared for a protracted and costly process if you pursue legal action.  Track progress and legal costs as the case proceeds.  After a successful court action, be prepared to enforce judgement to obtain payment.
  • Retain any details of the other party’s bank accounts from cheques, standing order mandates etc.  These can be very useful if enforcing a court judgment.
  • Accept a reasonable offer rather than go to court.  Consider how far you are prepared to compromise either by accepting stage payments or partial payment for a quick resolution.  Continue to be prepared to compromise by accepting any reasonable offer to avoid further delays and disruption and the risk of court action.

DON’T

  • Waste time or money pursuing someone who cannot pay.  Assess the other party’s ability to pay by, for example, running a credit check or finding out what property they own.
  • Refuse to compromise.
  • Ignore the risks of losing any legal action.

We are here to help.  If you have any questions please call Paul Neilly on 0141 552 3422 or email him on paul@mitchells-roberton.co.uk

I have a boundary dispute with my neighbours. What should I do?

Identifying the boundary between two properties requires specialist knowledge. In all cases, it would be necessary to take one or more of the following steps:

  • Checking the title deeds and plans
  • Taking measurements
  • Referring to Ordnance Survey maps
  • Resolving conflict between stated dimensions and scaled measurements
  • Examining extrinsic evidence

The costs of pursuing a boundary dispute can run to thousands of pounds particularly if the matter is taken all the way to court. It is therefore essential at the outset to examine the facts that support your case and identify any problem that you may have to overcome before deciding how far to pursue the dispute.

We understand the importance of limiting the initial costs until you are in a better position to decide how to proceed.

We will limit our fee to no more than £200 + VAT for :

  • Taking your initial instructions in a meeting or phone call lasting no longer than 30 minutes
  • Reviewing the documents supplied by you
  • Providing you with preliminary advice
  • Entering into limited correspondence with the other party if an urgent response is required.

If the matter is to proceed to court we have experienced civil litigators who can help.

If you have a dispute or potential dispute, please contact Alison Gourley for a confidential discussion on 0141 552 3422 or by email on ajg@mitchells-roberton.co.uk

The Scottish Government Passes Children’s Bill

On the 19th February 2014 the Scottish Parliament passed the Children and Young People (Scotland) Bill with 103 MSPs voting for it and with 15 abstentions. The aim of the Bill is to “transform” services. There are increased provisions for free childcare with three, four and vulnerable two- year- olds getting around 16 hours free care per week as from August 2014. The Bill also encompasses free school meals to all children in the first three years of primary school as from January 2015. Further the Bill lays out a plan to help young people in care, meaning that teenagers in residential, foster or kinship care would have the right to continue to be looked after until the age of 21. The appointment of a “guardian” for every child in Scotland also forms part of the Bill. This proposal is to nominate specific named persons from the NHS and councils to monitor every young person’s well-being from birth to eighteen.

Although the Bill has been passed it has not been without opposition. The Faculty of Advocates  previously issued advice to the Scottish Government when the Bill was going through the consultation stage ,saying that they believed  the Government was going too far with the new Children and Young People (Scotland) Bill. The plan that there should be an individual appointed (known as a “named person”) who is there to look out for all children generally, as opposed to only those who would appear to need looking out for, has come under criticism that it interferes with family life and could be in conflict with the European Convention on Human Rights.

In terms of the Children Scotland Act 1995, section 1(1) a child’s parents are the persons principally responsible for carrying out the functions mentioned in clause 19 of the new Bill, which include safeguarding and promoting a child’s health development and welfare and with offering direction and guidance. In the first instance it is the responsibility of a parent to seek assistance if this is required by their child. The Faculty of Advocates therefore argued that this part of the Bill could possibly dilute the legal role of parents, whether or not there is any difficulty in the way that parents are fulfilling their statutory responsibilities. It would appear to undermine family autonomy and therefore potentially result in interference with private and family life in a way that could violate article 8 of the European Convention on Human Rights.

At worst the Bill seems to imply that parents are not the people ideally placed to decide what is best for their children and when they may be at risk. Given that the number of parents who abuse or neglect their children is thankfully a minority, it would seem that the Bill is trying to use a sledgehammer to crack a nut. While some may say that parents who have nothing to hide should have nothing to fear, should we be interfering in family life to that extent? Could it just be the thin edge of the wedge that causes even more “Big Brother” legislation? And is it in fact legitimate or could it be in breach of our commitment to the ECHR? The Faculty of Advocates made their concerns clear but the controversial legislation has been voted through in spite of these doubts.