There can be few more challenging experiences in life than divorce. The emotional upheaval it brings is compounded by practical hurdles and the concern about how it will affect any children involved.
However, one unnecessary strain is the widespread belief that divorce in Scotland is invariably complex, prohibitively expensive, and almost always results in a court battle. While dramatic custody battles make for gripping TV, the reality is far less sensational.
Clair Cranston, Senior Associate in family law at Lindsays, addresses some of the common myths about divorce proceedings in Scotland and the truths that can help demystify the process.
Myth 1: Divorce always leads to a bitter court battle
Many people believe that contacting a solicitor automatically means gearing up for a courtroom showdown. While the divorce itself must be granted by the court, very few divorces involve contested court actions. Most separations are resolved through mutual agreement, often formalised in a “minute of agreement”— a legally binding contract detailing the terms of the separation.
Even in cases where court actions are initiated, the vast majority are settled before reaching a full evidential hearing. Coming to see a solicitor doesn’t mean you’ll be in court the next day. It’s highly unlikely unless there are specific circumstances, such as the need for protective orders.
Myth 2: It’s cheaper and better to sort everything out yourself
While some aspects of separation, such as agreeing on child handovers or dividing household items can often be resolved between the parties, other issues benefit from early legal advice. For example, the importance of agreements for cohabiting couples who purchase property together. Getting a cohabitation agreement at the outset can prevent costly and stressful disputes later if the relationship ends.
Similarly, an initial meeting with a solicitor can provide clarity on legal rights and obligations, potentially avoiding significant misunderstandings down the line.
Early advice is always the best approach — it can make all the difference.
Myth 3: Divorce means every item is split 50/50
Another common misconception is that all individual assets must be divided equally, regardless of the situation. In reality, Scottish law aims for a fair distribution of matrimonial property, which can take various factors into account and looks at the matrimonial property as a whole.
While a 50/50 split is common, it’s not always appropriate and doesn’t mean the split of each asset or debt. For example, if one parent has the primary responsibility for children, the division may reflect that.
Matrimonial property generally includes assets acquired during the marriage, such as homes, savings, and pensions. However, exceptions can exist for items like inheritances or gifts received by one spouse. Public sector pensions can sometimes be more valuable than private ones, which may influence the final settlement.
Myth 4: Childcare arrangements must be rigidly 50/50
The idea that childcare must always be equally shared is another myth. Scottish law prioritises the best interests of the child, which can lead to flexible arrangements based on family circumstances.
For example, if one parent is a shift worker or if the child has additional support needs, the arrangements will reflect those factors. Mediation is often a helpful tool in working out arrangements. Parents should also remain open to revisiting agreements as circumstances change.
It’s important to remember that flexibility and ongoing communication are key. You’re not going to be able to plan every day of your child’s life until they’re 16, so keeping an open mind is crucial as circumstances change.
Myth 5: Social media has no impact on divorce proceedings
Social media is an increasingly common factor in family law disputes. Be mindful that anything posted online can be used as evidence in court if necessary. Disrespectful dialogue or disputes made public on social media can escalate tensions and make resolution harder.
Additionally, disputes over posting children’s photos online are becoming more frequent. These disagreements should be discussed privately and respectfully to avoid unnecessary conflict.
The importance of professional guidance
Navigating separation and divorce can be daunting, but it doesn’t have to be as unpleasant or complicated as many people imagine.
At Lindsays, we focus on providing clarity and practical solutions to help minimise stress for everyone involved. Whether it’s through mediation, trauma-informed counselling, or legal agreements, we’re here to support you every step of the way.
Separation is never easy, but with the right advice, it’s possible to achieve a resolution that works for everyone.
24 February 2025
First Published in The Courier
