In this episode, Tamsin speaks to Scottish based family lawyer, Judith Higson about divorcing in Scotland. The law is substantially different in Scotland to England and Wales, so if you are based in Scotland, this one is for you!
Judith joined the team in 2018 as an Associate Director and Head of Family Law. She became an Executive Director in 2020. She has been practising Family Law since 2003. She is an Accredited Family Law Specialist, an Accredited Child Law Specialist, an Accredited Family Law Mediator, a Collaborative Lawyer and a member of the Family Law Association. Judith has over eighteen years’ experience in guiding her clients through separations, divorce and child law cases, often with an international element. Judith has been involved in reported and unreported cases dealing with novel aspects of the law. Judith’s approach is pragmatic and her focus is on achieving a fair outcome for her clients and one which is in the best interests of the children. She works proactively to deal with all aspects of family law to minimise disruption to the family as a whole. Read Judith’s profiles on CALM and consensus here and here: Read Judith’s article in the Journal of the Law Society here: In her spare time Judith enjoys spending time with her family. Qualification: LLB and German Law (Joint Honours), Dip. L.P., N.P. You can read more about Judith and her experience at Scullion LAW so far, by clicking here
Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.
You can contact Tamsin at firstname.lastname@example.org or arrange a free initial meeting using https://calendly.com/tamsin-caine/15min. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK
Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd
P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it by scanning the QR code…
(The transcript has been created by an AI, apologies for any mistakes)
Tamsin Caine 0:06
Hello, and welcome to this Smart Divorce Podcast. I’m Tamsin Caine and I will be your host during this our series six of the podcast. We’re delighted that you’re joining us again, and hope that you really enjoy today’s episode. During seriers six we’ll be speaking to other divorce professionals who help in perhaps some of the more unusual ways. So we will be speaking to lawyers who deal with international divorce. We will be speaking child inclusive mediation to name a few. I really hope that you enjoy today’s episode. Let’s jump right in. Hi, and welcome to the Smart Divorce Podcast. I’m delighted to be joined today by Judith. Hi, Judith, how are you doing?
Judith Higson 1:01
I’m very well Tamsin, thank you so much for having me on.
Tamsin Caine 1:05
Oh, it’s an absolute pleasure. So Judith is Executive Director and Head of family law at Scullion LAW. And you might be able to tell from that brief glimpse that Judith is actually Scottish and is based in Scotland. And we’re going to be talking today about the Scottish divorce process rather than our normal stance of the divorce process in England and Wales. Judith has been practising family law for over 20 years, she’s accredited Family and Child law specialist and accredited mediator and a collaborative – can’t speak today, collaborative lawyer. So she’s very much in favour of non court settlements to divorce, which, if you’ve been listening to our podcast for a while, you’ll know that we are as well. So we’re going to try and start at the beginning today. And we may need to get Judith back for a second day for a second go at it if we don’t get all the way through. But we’re going to try and cover today the divorce process in Scotland, which as I mentioned, is different to the process in England and Wales. It’s governed by a different set of laws. I’m going to hand over to do at this point to start to take us through the process and and I’ll jump in and ask questions as and when there’s anything that sounds similar or that sounds quite different to, to what we’re used to. So, over to you, Judith, where do we start?
Judith Higson 2:36
Well, and thank you so much for that lovely introduction Tamsin. And it’s great to be here and joining us for this podcast. I’m absolutely delighted to be invited to speak to everybody. Um, yes, you may hear from the accent, there’s a bit of a Scottish twang in there. So everything I’m going to be telling you about today will be about a Scots law, Scots family law. And there are differences between a high divorce works in Scotland, and compared to England. So I think the place to begin this probably at your date of separation, though, that’s something which we focus on. And when we’re advising our clients here in Scotland, and we look at a snapshot of the assets and liabilities at the date of separation. Now, there’s a bit of a legal definition for the date of separation, it’s not so tricky is the date that you are no longer living together as husband and wife. So sometimes that dates really clear. You know, you have a date when one person’s moved out of the family home, or, you know, you’ve had a discussion and decided to separate. But sometimes it’s not so clear. And there can be disputes about when the date of separation is. But what we look to do is to clarify and agree that at the very beginning, because that’s the important date we need to identify. And one of the things to remember is that any assets or liabilities that either you or your spouse, acquire after that date, that’s not part of the part that needs to be divided between you. So we look at this snapshot of assets in each spouse’s sole name, the joint assets, and we take off the liabilities to get the net position after that at the date of separation. And what we always encourage our clients to do is go through a process which we call full disclosure, which is that each of you disclose to the through your solicitors, all of the vouching for the assets and liabilities at the date of separation. So, when it comes to the family home, we would look at what’s the outstanding balance on the mortgage, what’s the house worth. And we would look at bank statements showing balances at a date of separation, we would look at the value of shares and investments at the date of separation, we would look at credit card liabilities, again, showing the balance at the date of separation on the statement, and any other loans and what the outstanding balance would be. There’s a couple of other things to think about when we’re going through that process. If we’re looking at the transfer of a joint home, from joint names into one person’s sole name, then we look at the net value of that asset as close to the point of transfer as we can, rather than the historical date of separation. And the law. And that was clarified several years ago, so that there wasn’t this windfall to the person who was taking over sole title to a property. If we were to use a date of separation, historical valuation.
Tamsin Caine 6:20
So are you using… do you knock off the cost of sale from the proceeds of the family home? Is that taken into consideration when you’re looking at the net value of it?
Judith Higson 6:36
So the ultimate aim is to enter into something called a minute of agreement or separation agreement, the two things mean the same thing. And standard clauses in the settlement will usually deduct the costs of sale, the marketing and estate agency costs and the solicitors fees from the net free proceeds to be divided between the parties. So that’s the more usual than not so yes, we would look to those costs in the settlement.
Tamsin Caine 7:11
Okay. And just a question on the date of separation, because I can only imagine the dramas that must be caused by trying to work out what the date of separation might be, if it’s not immediately obvious. I’m assuming that for example, if if things were a bit rocky for some time with, with a couple, and they perhaps were sharing a house, but not necessarily severally, sharing a bedroom, for example. And perhaps one of them came into some money through inheritance or, or what have you, you’re going to have presumably, a dispute where one party would like the date of separation to be before the inheritance, and the other party would quite like it to be afterwards. And I’m assuming that that can be the same with investment value suddenly going up dramatically, or a business suddenly taking off or, or any of those those types of things. What what happens in in those circumstances.
Judith Higson 8:13
So when we’re looking at the DSA operation, and looking at all of the circumstances surrounding that, we look at everything, we’d look at all of the facts, we look at, you know, where the couple socialising together, where the eating together, were they doing the laundry in the same way as they were before? What did friends and family think was happening in the relationship. And we look at all of the circumstances and sleeping in the same bed, it’s just one of that package of facts that we would look at. And one really pragmatic way forward that I’ve found is if we’re looking at a disputed date of separation, and it’s quite far apart in terms of the two dates that the couple are proposing. What we can do is value everything at both dates, and then make a decision as to whether or not it’s really economically sensible to be arguing anymore about this. Because basically, if you can’t agree, you need to go to court to have something called a preliminary proof, which is just a proof restricted to all of the facts and circumstances about the date of synchronisation and the sheriff comes down on one date or the other. And so the there’s those options available, you can value it both dates, or you can go to court and have a sheriff make a decision for you.
Tamsin Caine 9:53
Okay, and the sheriff is the same as the judge in England Wales is that
Judith Higson 9:58
yes. And, you know, Robin Hood’ism that we call them sheriffs but yes, that’s the judges and the sheriff courts. We have a kind of two tier system in Scotland where we have the sheriff courts. And then we have the court of station and Edinburgh and, and the court of station and it’s really only used for this extremely high value disputes. Okay. And ordinary solicitors can’t appear in the court of sation, we need to instruct a solicitor advocate or, or an advocate to make present the client there. But the majority of disputes if they have to go to court will, generally speaking be in the shade of court.
Tamsin Caine 10:41
Okay, and then advocate just so to make sure that we’re on the same lines and advocate will be the same as a barrister, would it and England?
Judith Higson 10:49
Yeah, that’s exactly right.
Tamsin Caine 10:51
I try my best to keep up with all this new language.
Judith Higson 10:56
In all, you’re doing really well, it’s really good to get these differences, you know, ironed out so that people aren’t confused by it
Tamsin Caine 11:04
It’s really interesting. Okay, so we’re at a point where we’ve got full financial disclosure from both parties. And to and they’ve exchanged that financial disclosures to England and Wales, we would normally complete the for me, which is a court form, but the majority of solicitors still ask for that to be completed, even if they’re not going to court and that will be exchanged, which sounds like fairly similar, similar process. And in Scotland, we’ve we’ve agreed the date of separation to be the day that those assets are valued that are slightly different in England and Wales. And we don’t have to agree a depth separation for that the asset values, we usually go off current asset values, as long as there’s not been a huge distance from, from the date that they’re sorting the finances. And in the date, they actually physically separated, although actually, I think still we’re probably looking initially at current current valuations. So where do we go from there, then we’ve exchanged full financial disclosure.
Judith Higson 12:12
I think one of the other things to mention that as part of that process, is also that we look at pensions. So we’ve mentioned other investments and liabilities and debts. I think one of the other things to mention is that it’s not the value of the pension that comes through their annual statement that we reduce, we would use something called a cash equivalent transfer value in which you ask your pension provider for once you’ve got your date of separation agreed. And one of the other things to bear in mind is that if that pension has begun prior to the marriage, there’s a proportion of it, which is not part of the matrimonial port and should be excluded. And sometimes, the pension providers will do the apportionment calculation for us. But if they don’t we do the calculation for the client name and pensions are are part of the picture. So once we’ve been through this process of full disclosure, we we will have shedule meet up and we will be able to see what the total matrimonial property is. And then what we do is we look at well, what is 50% of that total, that is our starting point. And the starting point and law is that there should be a fair demotion of the matrimonial port. And the starting point is that fair means equal. So we look at what 50% division is. And if we’re just looking at an equal division, we look to see, well, if we divide the joint assets equally, who then has less than half? And who is the person who will need to receive a balancing payment of some description to bring them up to 50% by the other person and the couple? And okay, is that pinpoint?
Tamsin Caine 14:10
Sorry, are you do you separate the capital assets? So, property investments, savings, from the pensions of those loans? Are those things sorted out separately? Or is it all lumped together in in one pot?
Judith Higson 14:31
Tamsin Caine 14:34
a technical question, but
Judith Higson 14:36
no, it’s a really, really good question. We look at the whole picture. But there are, you know, sort of certain limitations on really where we can go with a settlement. And if we’re looking at a house with equity in it, then, you know, we look at you know, whether or not one person should receive the full amount of the equity or or you know, less than not. It depends on the overall picture when it comes to pensions, their look towards a from the possession or first of all, you could offset your claim. So the person, you know, we could have a settlement where you’re buying the each keep their pensions and neither makes any claim on their pensions. And the division is found through other assets and how they are divided. Or we could have a pension share, which is, again, made up into this minute of agreement and provided for in the legal document, whereby one person receives a patient created from the other person’s pension fund. And, you know, we have our minute of agreement, and then we have our divorce, and then the pension shares implemented after the divorce. So pensions can be shared, depending on what kind of pensions they are, but usually they can’t be shared. Doing a pension sharing does mean that the whole process of concluding things takes a bit longer, and costs a bit more as well, there’s just a bit more involved with it. Because at the minute of agreement, that sacred ation agreement, the that has to go to the pension providers for them to approve it. And before the couples sign it, and then as I see, you need the divorce before it will be implemented.
Tamsin Caine 16:33
Okay, I have quite a lot of questions on pensions. So maybe we need a whole separate episode on their pension sharing in Scotland, because there are some pretty big differences, I think, between those so. So perhaps we’ll concentrate on those and other times as we don’t. For now, I’m talking about process. Okay, so we’ve got, we’ve got there, the pot of money, and we start looking at 50% Each from the whole amount that we’re talking about. So where do we go from there?
Judith Higson 17:10
So the first thing that we look at as an eight step from that point, as are there any spatial circumstances here that we need to take account of, which would allow one person to seek an unequal division. So there’s four really common spatial circumstances that can crop up. That’s not an exclusive list. But we if there’s been a prenup, or other minute of agreement that’s been entered into, which says what will happen to a certain mass aid in the event of a separation, then that’s something which will usually be applied to a settlement, if it’s fair and reasonable at the time it was entered in to. The other thing to consider is, you know, is any of the property used in connection with a business? You know, for instance, is the family home used to run their business? And that couldn’t be done elsewhere? You know, the most common examples are things like a dog grooming businesses, you know, somebody who’s living in a home large enough to have that type of business, and taking place within the property. That’s something an example that has cropped up fairly recently for me, okay? If one of the third most common spatial circumstances where one person has destroyed or gotten rid of matrimonial property, and thankfully, that doesn’t come up very often, you know, but yes, absolutely, you know, most people have an understanding that that’s not going to be the best thing for either of them. And, you know, we don’t get you know, a lot of people saying, well, I’ve burned down antique furniture and OpenPilot in the garden or, you know, a painting so slung on a fire and, you know, things like this, but, you know, that’s kind of covered, but a, you know, it’s not something that comes up very regularly. So the final most common circum spatial circumstances where one person contributes more, or has contributed more than the other to the purchase of an asset, which is no part of the port. And the most common example there’s where somebody’s put down more of a deposit when they’ve purchased a property. And that would be something where, you know, we would look at well, there might need to be an unequal division because of the way the asset was purchased and it was purchased on the quilling.
Tamsin Caine 19:52
Wow, okay. The special circumstances in Scotland see seem to be much more, much more financial about the financial contributions. Whereas it, they don’t seem to consider the not necessarily financial contribution of somebody who might end up who might have got less assets. So, for example, given up a career, and in order to support the other person and look after children, is that’s not taken into consideration at all or something.
Judith Higson 20:35
You’re not missing anything, that’s really what we would look at next, once we’ve looked at the special circumstances, what we then yeah, we move on to look at what we call our section nine principles. And the first one is, has one of the couples suffered any what we call economic disadvantage, that’s not offset by any economic advantage they’ve gained. So that would include someone who’s given up a clear, you know, perhaps they’ve graduated from university gone and got married would have moved into a clear, but then because the kids came along, and the husband’s gone out to work, and he’s been promoted, and he’s, you know, increased his contributions to his pension, and then at the date of separation, you’re left with, you know, financially vulnerable woman potentially, and a fairly commercial minded husband. So you know, that that sort of circumstance where the woman has less income prospects and less pension fund is certainly something that would need to be addressed in order to achieve an overall fair division. So those types of things certainly are looked at and flowing from that if one person has been what we call substantially dependent on the other. And then we would look at, you know, an adjustment to reflect that as well. And we in Scotland, we very much try to achieve a clean break. No, that is possible, where there’s been substantial dependence to secure financial contributions post the divorce, usually for a maximum of three years to allow that person to adjust to their new financial circumstances. It’s not always limited to three years, but most commonly. So I think that’s something that’s quite different from the English law and how you deal with that sort of situation.
Tamsin Caine 22:51
Yeah, absolutely. So that will be equivalent to our spousal maintenance that that three year period where there’s a possibility that there might be some payment from one to the one party to the other, or does that include chat, what we would consider child maintenance is, is that three year period that that overall payment,
Judith Higson 23:14
So spousal alimony is completely separate to child maintenance. So the spousal element is payable up until the point of divorce. And this post divorce, a payment is called a PV or decal allowance. And quite often it replaces the element to payment and takes place after the divorce. So when we’re looking at where there’s big differences in the earning an income over couple, then there is an obligation of the spouse with more on the spouse with more disposable income to pay for the day to day living expenses of the spouse with less disposable income. What we do is we look at their needs and resources of each of the couple. And when we’re considering and assessing whether or not spousal element needs to be paid, we ask the couple to disclose to one another, basically a breakdown of their income and expenditure. And we have a look at that and you know, as long as nobody’s got anything, you know, rash like you know, 1000s of pounds and, you know, a gym membership or, you know, a personal assistant or something like that, you know, we have a good look to make sure that the expenditures are reasonable. And then you know, what we can do is argue for a spousal element to be paid to to allow that the spouse with less disposable income to meet everyday bills on an ongoing basis.
Tamsin Caine 25:00
Okay, and is that I’m maybe getting confused, is that spousal element that’s replaced by the periodic payment? I think you said it was called is that the state the three year limited? amount of money? Is that the same thing? Oh, have I got views?
Judith Higson 25:23
No disposal element and when it’s paid will be paid right up until the point of divorce. So it just depends how long it takes to get the divorce for that payment to continue.
Tamsin Caine 25:37
Okay. And if it’s if it turns into the other thing that’s available after the divorce is that the thing that’s limited by three years
Judith Higson 25:46
Periodical allowance is limited to three years, usually. But if one person is going to suffer serious financial hardship, as a result of the divorce, it can be beyond the three year period. But it’s more uncommon.
Tamsin Caine 26:02
Okay. Crikey. That’s quite, that really is quite different. Okay, and I don’t want to jump too far ahead. So where do we go from from that point.
Judith Higson 26:16
So we’re then and to a negotiated settlement. Once you know, you’re clear on what the picture of the the artist says, Once you’re clear on what the arguments are for unequal division on both sides, in within, you know, trying to resolve matters by way of negotiation. And that can be there are different processes to use. And all of this, you could just have your solicitor write letters for you could be engaged in collaboration. And the collaborative process is very much one where the parties are front and centre of all the decisions, the decisions take place at meetings with the clients and their solicitors present. And the only communications between solicitors is to agree an agenda in advance of the meetings, and to agree the time and place of the meetings in the format of those. So there’s that there’s also mediation, and there are lawyer mediators like myself, who will take the clients through, you know, full disclosure, and then we’ll get both of a couple around the table with the mediator to try and facilitate a settlement with them, again, very much being at the forefront of the decision making. So there are lawyer mediators and non lawyer mediators. And it’s probably appropriate to mention that the mediators aim and also the solicitors involved in any separation. You know, we’ll also be looking at what the carry instruments are for the children. And you mentioned in child mean terms, which is separate from the disposal element. And here in Scotland, I don’t think it differs too much. But there’s a child maintenance service online calculator. And basically, you know, you punch in gross income and the number of overnights over the course of a year that a person sees the children and you come out with their figure. And that is separate from spousal element, although if the spouse who’s do the element will receive child maintenance, that’s part of the overall picture of what you know, expenditure and income they have. So tell me instances is sort of a sacred thing. And basically, I think the thing to remember with child maintenance is, as I’ve mentioned, this ultimate aim is to put the settlement into a minute. And by Beeman, our separation agreement. One of the sort of strange things about putting in a clause about a child maintenance and a minute of agreement is that it will only legally binding the parties for 12 months from the date of second signature to the agreement. And after that either of them can go off to the child maintenance service to get a maintenance calculation done and that would overturn the terms of that clause. So it gives a degree of financial security but only for that 12 month period.
Tamsin Caine 29:42
Crikey. Okay. So let’s assume for ease, that it’s been a nice process and the clients have been through mediation and they’ve come to a nice settlement decided how and divide their finances, you threaten that up into a minute of agreement. What what happens then.
Judith Higson 30:10
So what happens then is that the settlement that’s written up into the benefit of agreement thing gets implemented. So for instance, names are taken off bank accounts or bank accounts are closed, the family home is sold or transferred into one person’s sole name, there could be, you know, the balancing capital payment is made within a certain period of time. And, you know, the whole of the settlement is then implemented. And then the divorce itself, if you’ve got a pension sharing provision, in your minute of agreement, you absolutely 100% need the divorce. But the divorce becomes just a bit of a paperwork exercise. So here in Scotland, most family lawyers won’t encourage their clients to go for what we call a full bleed fault based divorce on unreasonable behaviour, adultery. Most family lawyers will encourage their clients to resolve things by we have a minute of agreement, and then a wait a year separation with the consent of the other spouse, you can apply for a divorce, or after two years separation, you don’t need their consent, and you can apply for the divorce. And there’s two different pathways for the divorce at both of those points. And if there aren’t any children under 16, then it’s really just a form filling exercise that needs to happen. If there are children under 16, the court needs to be satisfied that the carry insurance for the children are settled and and they’re based in trace. So there needs to be a writ lodged in court. And what we then do is we get affidavits, which are sworn statements in from the person who’s applying for the divorce, and also from somebody else who can see that all is well so far as the children are concerned. And there’s a couple of other documents we draft before the divorce application gets submitted to the court. And then a divorce decree is issued. If there’s a pension share at that point, there are some strict time skills within which that needs to be implemented. So all of the paperwork about the pension share the minute of agreement and the divorce decree that has to go to the pension providers within two months of the decree of divorce. And they have four months to implement the pension share. And after that, that’s pretty much it, you know, and it’s done and dusted. And, you know, the client can celebrate that they can move on. Yeah, absolutely. I mean, I have had clients who have had divorce parties, because they’ve been so pleased that the process has come to mean, and it can certainly be a huge relief to people to come through it.
Tamsin Caine 33:27
Yeah, it certainly can. I think I think sometimes there are people who were massively joyful that that it’s all over and done with I think there were equally some who were and if sad that that chapters closed, not necessarily kind of feel in in a celebratory mood. But but I’m sure that you’re I am sure that there certainly are, are people who do I know virgin holidays for a while we’re selling a divorce holiday to go and celebrate the with all your friends that your divorce risk risk, though. I’ve not seen them advertised for some while but I have a couple of more questions if that’s all right. So we so England and Wales, we had the decree and ice and the Decree Absolute which some people are still going through those processes because they failed prior to April this year. So there are still decree and eyesight and decree absolutes that are being processed that are going through that process. And they’ve been replaced now with the conditional order and the final order. So the we have from filing now there’s a 20 week waiting period, then the conditional order can be applied for and then six weeks and a day later the final order. Do you have it sounded from what you were saying that your process was quite a lot more straightforward than than all of that that you apply for the divorce decree? And there’s kind of not this waiting period and that there’s only one decree that gets issued. Have I got that right?
Judith Higson 35:10
You have pretty much got that right and when the court grants decree of divorce, there is a 14 day PVA gonna lay below where the DEA is extracted. So we do not have the decree night I sort of situation that you have in England is simply, you know, an extract DDP of divorce, which is I should that’s it done and dusted. So fairly straightforward.
Tamsin Caine 35:42
That’s a whole lot more straightforward. And does the minute of agreement need to go to the sheriff to be to be approved? Or is that is that just drawn up by the lawyers, and as long as the lawyers and the parties are happy, then we’re all good.
Judith Higson 35:59
So it does not need to go to a sheriff and a negotiation. Obviously, you know, if there’s a minute of agreement drawn up within court proceedings that might be launched as a production to show the sheriff, that settlement has been eventually beach despite the court proceedings, but in a negotiated settlement, the minute of agreement, the separation agreement, it’s simply registered in the books of counselling session. And the couple each gets an extract bone coffee, and the registration means that the terms of the agreement are enforceable. So you could go to court if one person doesn’t do what they’ve said they would in the separation agreement.
Tamsin Caine 36:45
Sure. Wow, that’s, this is so different. Because sometimes in undoing England, the law in England and Wales might agree to a fine that they agree their financial settlement, but it might be sent into the so there needs to be sent into the court, their financial consent order needs to be sent into the court, to the court to assess whether they feel it’s fair or not. And very, not commonly, but there are certainly occasions where that would be sent back to the lawyer or to the couple in saying, we don’t believe that actually, this is fair to both parties. So have another go. So yeah, that’s, that’s, that really is quite different. Okay. So just, I’m aware that we’re, we’re, I could talk to you for a very long time, and I have millions of questions. So we definitely need to do another episode. But just Just briefly, if, if this if we have issues and things are not nice, and we’re not able to come to a negotiation, a negotiated settlement between the parties, or even using collaboration or mediation, what what does the court process look like in Scotland?
Judith Higson 38:03
Okay, so the court process involves being drafted and to crave for the divorce, that cream is just, that’s what you seek is your order. So you seek an order for divorce, and you might also seek financial orders. So I would be I never recommend going to court until at least you have fully disclosed to the other person, all of the matrimonial property, the assets and liabilities that you have at the date of separation. And you can then see well, because of their lack of cooperation, I have had to go to court they have not given me information. And so you know, you are protecting your client against any order for them to pay the other side’s legal costs if you do that. So the writ is drafted and the writ has to outline the orders you’re looking for, you might look for sale or transfer of the house, you might look for a pension share. You might look for division of bank accounts and a capital solid payment to balance and the rent you have to detail each item of matrimonial property and what it’s worth. Once the rent is served on the other person, which can be by recorded delivery, or by Sheriff officers. What then happens is the defender, the person who’s serving the red is the pursuer and the person who’s receiving the writ being served on name as the defender. The Defender then has 21 days within which to launch a notice of intention to defame the action. And if they do am a lot that Ned as we call it NID notice of intention to defend. And they then have a further period of 14 days to launch defences which are answering what is said in the initial writ. And so these are these form the written pleadings and the court process. And the way in the net is load, the court will fix something called an options hearing. So, by the time of the options hearing, the writ will have been served and that will have been launched and their defences will be in. And at the time of the options hearing, the court then decides, well, what’s to happen with this case, it might be that by raising the court proceedings, you’ve kind of flushed the other person out. And you can put the court proceedings on the shale file, they give you the information that they’ve not previously provided. Or it could be that you have to lodge a motion to have the court order disclosure of some of the documents that you’ve not got. So at the options hearing, the court will decide, well, does this need to go to a full hearing on evidence? And the court will manage the case from there.
Tamsin Caine 41:19
Wow, that, again, is quite different. is as it seems a very, very different process, you would think that they’d be quite similar as the countries they’re quite linked. But yeah, there’s there’s a huge number of differences. And we’re kind of running out of time. Is there anything that I should have asked you that? I haven’t?
Judith Higson 41:43
I can’t. Thanks, all your questions have been great. I’m so happy to have the opportunity to come on and explain to people how we do things in Scotland. So thank you so much for having me,
Tamsin Caine 41:57
sir. My absolute pleasure. And we definitely need to get you back because we need to cover pensions in in Scotland, to a much greater extent than we have already. So if you’d be happy to come back with it, we’d love to have you back again. Fantastic, and for anybody, any of our listeners who are in Scotland and need some help with that first because I’m sure there are many people listening who will be in that circumstance, how can they get ahold of your data.
Judith Higson 42:29
So please do reach out if you’re in need of any advice at all in relation to the family law in Scotland be that financial or in relation to the childcare arrangements. And you can reach me at Scalia law, our website at Scalia law.com. And our phone number is 0169823265. Just give us a buzz.
Tamsin Caine 42:53
Fantastic and we’ll make sure that both the website and the telephone number are in our show notes. If you do want to contact you to about anything. I’m sure she’d be delighted to hear from you. So it just remains for me to say thank you Judith for joining us. It’s been an absolute pleasure and a real insight to speak to you today. And to everybody listening. Thank you for listening and we look forward to talking to you again soon. Thank you
I hope you enjoyed the episode of the Smart Divorce podcast. If you would like to get in touch please have a look in the show notes for our details or go onto the website www.smartdivorce.co.uk. Also if you are listening on Apple podcasts or on Spotify and you wouldn’t mind leaving us a lovely five star review. That would be fantastic. I know that lots of our listeners are finding this is incredibly helpful in their journey through separation divorce and dissolving a civil partnership. Also, if you would like some further support, we do have Facebook group now. It’s called ‘Separation divorce and dissolution UK.’ Please do go on to Facebook, search up the group and we’d be delighted to have you join us. The one thing I would say is do please answer their membership questions. Okay, have a great day and take care!
Transcribed by https://otter.ai