Advice on Child Law and Relocation for Expatriates in Scotland

child law

As an expatriate living and working in Scotland, it is important to know and understand the legal implications of bringing your children to Scotland and moving your children from Scotland. This is to avoid breaching domestic laws and international child abduction regulations.

In order to move a child outwith Scotland when they are habitually resident in Scotland, a parent must have the consent of the other parent of the child to carry out this act. However, if the other parent does not consent to the move, then it is possible to seek a specific issue order from the Scottish court allowing the child to be relocated to another country.

When making their decision, the court will regard the welfare of the child as the paramount consideration and will not make the order if it is better for their welfare for none to be made at all.

The court can also take into account the views of the child when making their decision. When determining what is best for the welfare of the child, the court will take various factors into account, such as the reasonableness of the proposed move abroad, the importance of the contact with the other parent and the motive of the parent wishing to move the child.

The court may also determine whether the child was habitually resident in Scotland. Habitual residence is a legal concept that is used to indicate a persons’ connection to a country’s legal system.

A habitual residence is a place that someone has a genuine connection with on a fixed basis. In order to establish the habitual residence of a child, the court will look at whether the child is settled in the country and to what the degree the child has integrated into life within that country.

If the aforementioned procedures are not followed, a parent runs the risk of committing a criminal offence in Scotland. Furthermore, taking a child out of Scotland without following these procedures would constitute a ‘wrongful removal’ under international child abduction laws.

A wrongful removal occurs where a child is moved from their habitual residence to another country in breach of the custody rights of the other parent, and if it is found that a wrongful removal has occurred then it can be ordered that the child be returned to their habitual residence.

It is also important to ensure that when moving with children a parent does not carry out a ‘wrongful retention’ of a child under international child abduction law.

This concept is slightly different from wrongful removal. Wrongful retention would arise where there had first been a lawful removal but then the parent and the child stayed in the new country past the date they were supposed to return and in violation of the custody rights of the other parent.

For example, wrongful retention would occur where a parent and child visited Scotland from Australia with the consent of the other parent, but then decided to remain in Scotland for a longer period of time and the other parent in Australia did not consent to this decision. If this is the case, the Australian authorities can request that the Scottish courts order the return of the child to Australia.

As someone who has a lot of experience in guiding people through child law and expatriate divorce processes, I am able to provide you with professional legal assistance. To find out more about the cost of child law in Edinburgh or to take the first step towards beginning the legal process, get in touch. Contact Cath Karlin Family Law on 0131 357 1515 or via the online contact form.

How Matrimonial Property is Divided in Scotland

division of assets

The division of assets details the decision made over what happens to the money and property between a couple when a marriage or civil partnership ends.

If a court is asked to make a ‘financial order’, then a judge will make the decision regarding how these assets or matrimonial property will be divided.

The factors that will be taken into consideration for this, alongside how long the couple has been together, are age, finances,property, the standard of living, both individual’s ability to earn money, living expenses and the role of each individual in the relationship, such as the ‘breadwinner’ or a primary carer.

The judge will ordinarily see it in everyone’s best interests to arrange a ‘clean break’, especially if there are children or other family members involved. This is so that all assets are divided out and that no financial ties to one another remain. If there are children involved, then the judge will usually make arrangements regarding them first – most notably regarding child maintenance and housing arrangements.

Matrimonial Property in Detail

The Matrimonial pot is the entire net value of assets which belong to the couple both individually and owned in joint names at the time which the couple formally separated. The date of separation is sometimes a matter of dispute but generally means the date you started living separate lives under the same roof, the date one of the parties moved out or the date of service of a divorce. This is referred to as the “relevant date” or “date of separation”.

Any property acquired pre-marriage or after the relevant date is not considered matrimonial property with the exception of any house of furniture purchased prior to the marriage to use or live in as the family home. Any gifts from third parties or inheritance money are exempt from matrimonial property.

The likes of business interests, pensions and life policies, however, are not exempt. All property acquired during the marriage is included, regardless of which individual acquired it. Likewise, all debt acquired during the marriage is considered within the matrimonial property – regardless of who acquired it.

In many cases, particular assets can be difficult to quantify as falling within or outside of the matrimonial property. This article provides a broad and basic overview of what is and is not categorised as matrimonial property. However, it is always best to seek legal advice for individually ambiguous cases. For example, the likes of redundancy or accident payment which have been paid after the relevant date could still be considered as matrimonial property.

How the Courts Fairly Divide Matrimonial Property

In Scotland, the law is governed by two primary acts:

  • The Family Law (Scotland) Act 1985
  • The Family Law (Scotland) Act 2006

As mentioned earlier, Scottish law tries applies the “clean break principle.” Capital or lump sum payments, pensions sharing orders and property transfer orders tend to be made and ongoing support following the divorce is rare and usually only awarded for a short period of time after the divorce is finalised.

The courts aim to share the value of the matrimonial property as “fairly” as possible. In most cases, this is defined by equal the division. However, there are arguments that can be made based on a number of factors and individual circumstances to tip the balance.

Any such factors are often considered a means to advance an argument for “unequal division” of assets

Some examples of such situations include:

  • One party is unable to work.
  • One party was the primary caregiver and thus gave up the opportunity to work.
  • One party gave up their career in order to further their spouse’s.
  • Any business assets owned pre-marriage by one party which have been significantly increased during the course of the marriage.
  • An unequal division is necessary for the good of the children. For example, to allow them to continue living in the family home and not disrupt their routine.

Types of Spousal Support

  • Both parties to a marriage are legally required to financially support one another.
  • There are two major types of spousal support which can be claimed.

Ailment (Regular Payments Pre-Divorce)

Ailment is where regular payments are made pre-divorce in order to ensure adequate spousal support, which is usually paid in monthly amounts. This usually occurs in situations where one individual has been the main earner and thus supported the other during the course of their marriage.

Such support is crucial in cases where the parties opted to live separately following separation and thus one party would likely struggle to cope with the increased financial strain on their own.

If agreed or indeed granted by the court, then the following will be taken under heavy consideration. The parties’ “earning capacities” or ability to work, the parties’ resources and needs and all other relevant circumstances of the case. The lawful duty to pay such ailment usually ends on divorce unless an earlier date is mutually agreed in which all payments will be made by.

Periodical (Regular Payments Post-Divorce)

The second type of spousal support which can be defined is paid periodically after the divorce is finalised. Due to Scottish law favouring the “clean break” in regards to the division of assets, this means spousal support is far less common.

It will be awarded in cases in which the party seeking it can show that the financial settlement which was reached upon separation leaves them in a financially inadequate position. This is because, after the divorce, they are still struggling to adjust to the notable loss of financial support they were living by previously.

The factors which will be considered for such a case go way beyond those which would be considered in ailment spousal support. The award for a periodical allowance can end a maximum of 3 years after the divorce is finalised. However, awards of 12-18 months are the most common in these instances.

Support for the Division of Assets in Scotland

If you need any further assistance regarding information on the division of assets in Scotland or anything else regarding matrimonial separation, please don’t hesitate to get in contact and we’ll be sure to do all we can to assist you.

How do You get a Divorce in Scotland?

divorce in scotland

Before going through the divorce procedure in Scotland, it must first be established whether the Scottish courts have jurisdiction of the case and thus have the necessary authority to legally carry it out.

In general, the majority of people living in Scotland will be able to get a divorce in Scotland.  However, you need to meet the residence rules or domicile rules regarding where you live and also have a marriage which is recognised as valid. If you are unsure as to whether you meet both of these criteria, then it is important to get in contact with a solicitor.

When do the Scottish Courts Have Authority over the Case?

  • When both parties are habitual residents of Scotland.
  • When either spouse was last habitually resident in Scotland and one spouse still resides there.
  • The applicant has Scottish domicile and has lived in Scotland for six months prior to the application for divorce.
  • The applicant has a Scottish domicile.
  • The party applying for the divorce has lived in Scotland for 1+ years prior to the application.
  • The party who is not actively pursuing the divorce is currently a habitual resident of Scotland.

What’s a Habitual Residence and Domicile?

These are both legal concepts used as a means of indicating a person’s connection to that legal system.

Habitual Residence: the place that someone has a genuine connection with on a fixed basis. This is generally the place they live or work.

Domicile: this term is more abstract. Every person is born with a domicile origin and cannot be without one at any point during their life. In order to change this, you have to move to another country with the intention of making this your new home for the foreseeable future on a permanent basis.

Due to the nature of these two types of residence, the domicile is much harder to prove and thus it can often be a far lengthier process to prove that you have become habitually resident in this country and now consider it your long-term home. If you are an expat living and working in Scotland, then you will be able to divorce here. However, you may have to meet a specific residence requirement.

It is often the case that divorce must be finalised in the individual’s country of domicile. As a domiciled Scot who is living and working abroad, you may be able to use your domicile of origin as means to allow your divorce in Scotland, despite the fact you are no longer a habitual resident there. Divorces can also be carried out in the country in which you are a habitual resident.

What are the Grounds for Divorce?

The grounds for divorce are covered by the Divorce Law (Scotland) Act 1976. It first has to be established that the Scottish court system has the authority to deal with your divorce before you are able to apply. Once this has been done, the grounds for divorce can be established in four major ways.

The first two of these grounds are seen as the fault grounds of divorce:

  1. Proof of irretrievable breakdown due to adultery by either spouse.
  2. The irretrievable breakdown of a marriage due to unreasonable behaviour on the part of your spouse.

However, the second two grounds that can be used to indicate the irretrievable breakdown of a marriage are far less fault based and thus less acrimonious by nature:

  1. A one-year period of non-cohabitation that both spouses have consented to.
  2. A period of two years of non-cohabitation between the spouses. Consent is not required in this case as the length of the period of separation alone is enough to establish that there has been an irretrievable breakdown in the marriage.

How is the Divorce Process Carried Out?

The two processes carried out in order to obtain a divorce in Scotland are the “simplified procedure” and the “ordinary procedure”.

Simplified Procedure: this is the cheaper method. It is essentially a form that is completed and lodged in court. However, its use is restricted to families where there are no children under the age of 16 and where the spouses are not seeking financial provision on divorce from the court.

In cases in which these conditions of the simplified procedure are not met, then an ordinary procedure must be carried out. However, these are usually more expensive and time-consuming.

Ordinary Procedure: often referred to as the DIY procedure. This means obtaining a divorce in Scotland is more expensive and takes longer as you’ll need a solicitor to carry it out.

However, it must be emphasised that the Scottish courts will want to be wholly satisfied that the welfare agreements for children are satisfactory before granting a divorce. In these cases, children are ultimately considered to be the priority.

Support for Scottish Divorce

If you need any further assistance regarding the information on the division of assets in Scotland or anything else regarding matrimonial separation, please don’t hesitate to get in contact and we’ll be sure to do all we can to assist you.

What is the Real Cost of a Divorce in Edinburgh?

cost of divorce edinburgh

Whether you are about to begin the divorce process or it’s just an idea that you are currently toying with, you have probably considered how much it’s going to cost you. There are a lot of things that make up the cost of a divorce such as the court fees and hiring a specialist lawyer, and it does quickly add up. You will even need to consider how much you are likely to be spending on building a new life as an individual, as you are probably used to splitting bills and expenses. These are all things that you need to think about when working out how much a divorce is likely to cost you.

Keeping the Cost of Divorce in Edinburgh Low

There’s no denying that divorce is expensive, it’s something that most people are well aware of before even beginning the legal process. Let’s face it, nobody has ever assumed that going through a divorce is going to be a cheap and cheerful walk in the park. More often than not, divorce ends up being even more expensive than a lot of people initially realise. However, that’s not to say that every divorce has to break the bank. By taking the correct steps and seeking professional legal assistance, it is possible to keep the cost of a divorce in Edinburgh relatively low. This is even easier if you and your ex-partner are in agreement and nothing is being contested. It’s when there are disagreements and conflicts that the cost of a divorce tends to rise dramatically, as everything must be carefully considered and compromises must be made.

How you choose to deal with your divorce can really affect the overall cost, which shouldn’t come as a surprise. If there’s nothing to dispute, your divorce will be on the more affordable side of things. Plus, it’s likely to be finalised a lot quicker. If both of you agree on the major points of separating your lives such as child custody, the division of assets and how you will be splitting the finances, you probably won’t find the cost of divorce to be alarmingly high. You will need to pay the mandatory court filing fees. Even if you choose to handle your divorce yourself without a lawyer, you will still need to pay these court fees as everyone applying for a divorce is required to do so. But, you probably won’t find yourself laden with many other expenses. A divorce of this kind when there are no disputes is referred to as an uncontested divorce, and it’s certainly a simpler and cheaper way of doing things. However, it’s not always possible and many couples are faced with a contested divorce.

Choosing to handle a divorce yourself does have its disadvantages, such as there being no guarantee that you are going about things the right way. If you and your ex-partner are not in agreement on everything and even if you are it’s best to get a divorce lawyer. Though you will need to pay for their time and services, you can save money in the long run. For example, a divorce lawyer can ensure that you are getting a fair share of assets and joint finances. Nobody wants to finalise a divorce only to realise that they were entitled to a lot more than they realised and they have actually ended up considerably out of pocket, or with their ex-partner walking away with far more. With a divorce lawyer in your corner, the entire process of getting divorced is a lot simpler and a lot less stressful. You can relax knowing that an expert is taking care of everything, so you can focus on rebuilding your life.

It’s hard to put an exact figure on the real cost of a divorce in Edinburgh as it really does differ from couple to couple, but you should always consider the cost of the inevitable lifestyle changes that a divorce brings. For example one or both of a divorcing couple will usually need to buy a new home. Similarly, one of you may need to buy a new car as this is not an asset that will continue to be shared. There’s evidence to suggest that the real cost of a divorce is even more substantial than initial estimations, especially when you take into account that a lot of expenses will no longer be split between two incomes. Of course, if you are keen to get a divorce then this cost is something that is worth bearing and most people who are divorcing think the costs are worth it. A divorce provides you with a clean break, a legal separation, and most importantly an ability to move on with your life.

Cost of Divorce at Cath Karlin Family Law

At Cath Karlin Family Law, I understand that divorce can be costly. It doesn’t matter how hard you try to keep the cost as low as possible, you and your ex-partner will always end up paying something. This is often a lot more than people initially realise before going into a divorce and the total cost does vary hugely depending on your individual circumstances. Luckily, there are things that you can do to ensure that your divorce is as affordable as possible. There is no reason as to why a divorce needs to cost an arm and a leg, not when there are ways to keep the cost low. With an expert divorce lawyer helping out, you can relax knowing that you are not going to be paying any more than is necessary.

As someone who has a lot of experience in guiding people through the divorce process, I am able to provide you with professional legal assistance. It doesn’t matter whether it’s a contested or uncontested divorce, you can count on me to fight for what you truly deserve. To find out more about the cost of divorce in Edinburgh or to take the first step towards beginning the legal process, get in touch. Contact Cath Karlin Family Law on 0131 357 1515 or via the online contact form.

Why a Specialist Divorce Lawyer is The Best Option For Your Divorce

lawyer in edinburgh

It’s a known fact that going through a divorce can take its toll on an individual as well as other people involved such as the family. Starting from filling in the petition, to negotiating with your spouse to then going through the trial process; it can be a lengthy, tiring and often emotional process from start to finish with many hiccups appearing along the way. Cath Karlin, a lawyer in Edinburgh, can show you why a specialist lawyer will be the best.

Many divorces do not tend to go smoothly, with the negotiation processes often taking longer than necessary. This is especially common if participants disagree on things such as possessions and the home if they shared one together or if it has been discovered that a partner has been unfaithful during marriage. It can also become particularly tricky if children are involved, and spouses can’t agree on who the main carers will be.

If you are considering getting a divorce from your partner, whether this is a mutual decision or something you have decided on yourself, it may be beneficial to you to get a specialist divorce lawyer involved in the process, especially if you feel that negotiations with your partner may become difficult.

Cath Karlin is a lawyer in Edinburgh who has years of experience in dealing with divorce cases. Read on to discover why you may need a divorce lawyer, particular cases where you may need one more and why it is important to choose the correct lawyer for your case.

Why Use a Specialist Divorce Lawyer?

Since there are many steps involved in getting a divorce, there is often a lot to think about plenty to discuss. A divorce is likely to uproot your life, making changes to where you live and who you live with, changes to your finances and can be further complicated where children are involved. Before you decide to employ a divorce lawyer, you must first decide what you want from your divorce settlement. While this can, of course, be a difficult thing to decide on, it is important that you have at least a rough understanding of what you want to achieve so a divorce lawyer can work with you to get it.

Deciding on how to handle these changes on your own can take a lot of responsibility and integrity. However, a specialist divorce lawyer can help you make potentially life-changing decisions and ensure the best outcome for you after the divorce process has been completed.

We’re only human, and the process of divorcing your partner can cause heightened emotions which can often lead to poor decisions. However, if you use a specialist divorce lawyer, you can rest assured that difficult decisions will be made with your best intentions in mind and that you will be guided through tricky obstacles that may occur during your divorce.

When Would you Specifically Need a Divorce Lawyer?

There are certain times when a divorce lawyer is needed more than others. For example, you may need a divorce lawyer if:

  • one of you is financially dependent on the other, for example, if you have given up work to look after children
  • your divorce settlement needs to reflect the value of more complicated financial assets, such as pension funds, business interests, trusts or overseas assets
  • you have joint debts and aren’t sure how to sort them out
  • you think your partner is hiding information about the true financial position
  • you want to be sure that you settle financial claims once and for all by getting a consent order

If you feel you are in any of these situations, then chances are you could benefit from getting a divorce lawyer involved in your divorce.

There are more situations that may arise where a divorce or family law solicitor may be needed more. For example, if you need to take urgent action such as if you think your spouse is about to take your children abroad, you are a victim of domestic abuse, you are worried about being left homeless or you feel extra amounts of pressure to agree with everything your spouse wants.

The Importance of Choosing the Right Lawyer

It is important that you find a lawyer that has the right expertise to deal with your unique case. Since all divorce trials are different, it is important you choose a lawyer in Edinburgh who has experience with dealing with complex cases. In many divorce cases, there are usually many sprawling issues such as family and custody matters, financial and asset distribution. It’s important to choose a lawyer that is specialised and has a broad range of experience in a variety of scenarios.

A good lawyer in Edinburgh will often think of alternative routes for your divorce process and should make these clear to you from the get-go. For example, going to court should be a last resort and instead, your divorce lawyer should suggest other possible avenues to resolve your separation proceedings, such as Collaborative Practice, Mediation, Arbitration and Lawyer Negotiation.

It is also important to find a divorce lawyer who you get along with, as you will be sending a lot of time with them to discuss your case. Luckily, Cath Karlin strives to have a good working relationship with her clients so you can work together during this difficult time and has years of experience in divorce cases.

Why Choose Cath Karlin

Cath Karlin is a specialist lawyer in Edinburgh with years of experience in divorces, both smooth and rocky, and can offer sound and genuine advice to get you through your divorce trial. If you’re looking for the support from a straight-forward, calm and collected lawyer who can consider all options in a divorce to get the right outcome for you, then get in touch with Cath Karlin today.

Divorces are a tough process. Cath Karlin can provide you with all the support you need to get you through this difficult time. You can either call Cath on a no obligation chat on 0131 357 1515 or alternatively, you can fill in a contact form if you are interested in finding out more about prices and quotes.

Will Brexit Effect ‘Cross-Border’ Divorce in Scotland?

How Will Brexit affect cross-border divorce in Scotland

There’s a huge amount of uncertainty currently around what the UK’s Brexit deal will look like when we leave the EU in March 2019 (if a deal is agreed). This uncertainty spreads across all industries, from employment and income to divorce and overseas travel. How will Brexit affect the legal process when obtaining a divorce, especially for cross-border couples?

“Brexit will cause havoc for Scots couples living in separate European countries while undergoing a divorce.” Consensus Collaboration Scotland

Consensus Collaboration Scotland, a network of lawyers, family consultants and financial experts specialising in out of court divorce settlements using a technique known as “Collaborative Practice”.

As a Specialist Family Lawyer in Edinburgh and a member of the collaborative practice network, I wanted to offer my opinion on this topic.

Roughly 1 in 10 cases involve cross border divorce proceedings in Scotland and there are 140,000 international divorce cases that take place in the EU each year. For these people, Brexit could be a disaster. Since 2000 we have benefited from Brussels II a European Union Regulation designed to promote legal uniformity and consistency of family law between EU countries. Under this regulation, a person was allowed to raise divorce proceedings if they satisfied a residence requirement in most EU countries, even if they were non nationals. Once proceedings had started, any other EU country with jurisdiction would be compelled to give precedence to the member state in which proceedings were first raised.

What Happens If We Leave The EU?

As soon the EU Withdrawal Bill is passed, we lose this. To put this into context, if a couple one of whom is German and one is Scottish file for divorce and both decide to do that in their country of birth, then courts in both countries could be dealing with the same case in tandem, and possibly come to conflicting decisions.

As Brussels II would no longer be applicable, the Courts in Germany will not have to give precedence to a case in Scotland, even if it was raised first.

What Does This Mean For My Divorce?

This will have the potential to result in expensive, long drawn out divorces, where a legally recognised settlement may never be reached. There will simply be no clarity as to which divorce ruling stands, throwing the whole process into chaos. This will be particularly detrimental if there are children involved.

Divorcing couples in Scotland will also suffer from what has been termed as ‘Divergence and Atrophication’. Put simply, this means that as EU laws continues to develop, ours will become the old, less good provision, while the rest of the EU27 will enjoy the new, enhanced provision. Post Brexit, Scots family law will return to the 1968 framework, which is the last time the we have engaged in international treaties.

Some academics have suggested that “there is nothing to fear”, because there is other international provision that Scots can rely upon (the Hague Conventions of 1970, 1980, 1996 and 2007). Leaving aside the issue that no guarantees can be made that we will be able to rely on them as we do now, post exit day, the bottom line is that the Hague provision (if available) is less than the provision that Scots currently enjoy. Scots are going to lose valuable rights. They face the prospect of prejudice, uncertainty, delay and expense. We need the Justice Committee to highlight what the impact of Brexit is going to mean to ordinary Scots going through family disputes.”

How Will Brexit Affect The Court Process In Scotland?

While Brexit will have a divisive effect on court divorces across Europe, out of court methods such as collaborative divorces are heading in the opposite direction. The European Network of Collaborative Professionals (ENCP) is seeking to promote a ‘harmonisation of collaborative divorce practices across Europe,’ by standardising best practice through training and support for international collaborative divorce practitioners. The aim is to create a Pan-European Gold standard to ensure consistency of practice and encourage cross border collaboration.

How Cath Karlin Family Law Can Help

We believe divorcing couples living abroad will increasingly turn to out of court divorce settlements to avoid the post EU Withdrawal Bill fall out. For example, collaborative divorce methods where couples have access to financial planners and family consultants who, together with collaborative lawyers, help the couple to agree an out of court divorce settlement. This is often a less stressful, less confrontational and a cheaper way to part ways. Importantly, it allows the couple to make the decisions rather than a court of law. I believe this is the future for cross-border divorces.”

If you’re considering an alternative to a court based divorce, contact me today for advice and information on how to divorce differently.

Child Custody In Edinburgh: Where To Find Support As A Separated Parent

Child Custody Edinburgh

Separating from your partner can be one of the most stressful experiences you’ll ever experience, but what about when a child is involved? There are many complex issues to navigate in the world of divorce, separation and child custody. Protecting your child will be number one in your list of priorities but sometimes this might seem an impossible task to do alone. You might not know where to begin, or just feel you need a little outside help. Read below to find out some of the best places to seek support for child custody issues:

Child Custody Support For Separated Parents:

There are many forms of support available to you as a separating parent. It’s important to seek the help you need from these sources where possible, to ensure you’re fully supported and able to cope without letting the process have too big a negative impact on your life. Forms of support include:

  • Your partner. If you’re lucky enough to be parting on amicable terms, you and your partner can work together to navigate through the trickier parts of separation and ensure your child is kept shielded from as much stress as possible.
  • Family and friends. Your close circle of loved ones can provide an invaluable support network when going through a separation and applying for child custody. Friends and family can support with childcare, helping you get back on your feet, communication with your partner, sharing their own separation experiences, recommending support channels and more.
  • News and articles. At Cath Karlin we’ve developed a hub of supporting information for separated parents, dealing with every aspect of the process – from comforting your children to seeking legal counsel. Our informative website can help answer a lot of the questions you may have – and if not, feel free to drop us a message for anything you’d like more information on.
  • Dedicated charities. There are many charities based in Scotland that are dedicated to providing family support for parents and children in times of separation. Relationships Scotland is one such charity, which has a helpful info line to seek support on.
  • Legal services. There are many avenues of support to be found from legal counsel. Family law specialists offer a range of services for separating parents and can help you explore many options before resorting to the courts. Mediation, arbitration, residence orders, contact orders, collaborative practice and lawyer negotiation are just some of the options available to you through the support of your legal professional.

Tips To Help Your Child During Separation:

The thought of where to begin during separation can be overwhelming, so we’ve made a handy helping checklist of things to think about in order to ensure your child feels as settled as possible during the process:

  • Remember to make your child feel valued. When parents split up a child needs to be reminded that they’re loved and that the separation was nothing to do with them.
  • Handle telling your children correctly. If possible do so with both of you present and try not to argue in front of them. Presenting a united front will help your children feel as settled as possible in the circumstances.
  • Don’t speak badly of your partner in front of your children. It’s unfair for you and your partner to criticise each other in front of your child, or to drag them into the middle of the situation.
  • Be truthful. If your child asks something that you don’t know the answer to, tell them it’s still something you and your partner are considering. Don’t lie to them – it’s something that will upset your child and make it harder for them to trust you or move on from the situation.

If You Can’t Agree On Child Custody Arrangements With Your Partner:

If being in the same room alone as your partner seems too difficult, or you’re struggling to come to an agreed custody arrangement with them, then mediation could be the answer.

The process of mediation uses a neutral professionally-trained mediator to facilitate settlement discussions between parties. It may involve just the separating couple and the mediator or can be up to a four-way process where there are two mediators, which is known as a “co-mediation.”

Mediation takes a much more softer approach to custody arrangements and your mediator can act as an additional source of support, helping you reach an amicable arrangement with your partner that gives minimum disruption to your child’s life and leaves you feeling in complete control of your life.

Seeking Child Custody Through The Courts:

If all other forms of negotiation fall through, you can seek child custody through the courts. This can be a stressful process, so it’s advised to utilise all of the support mechanisms available to you – from friends and family, to news articles and your trained legal counsellor. The Court will take many points into consideration but will always rule in favour of an outcome that has the child’s best interests at heart.

Experienced Family Law Specialist:

At Cath Karlin Family Law in Edinburgh, we’re trained specialists in family law, with a wealth of expertise in supporting parents through the separation process. We guide you through every step of the process, from initial communication with your partner and children, to applying for court orders and coping in the long-term. We pride ourselves on providing a highly personal service – helping you maintain control over your lifestyle and build a positive future for you and your children.

Our aim is to help you avoid the courts and navigate the process of separation from start to finish as hassle free as possible. We can also recommend other professionals to support you in tandem with our work, ensuring you have a complete network for all the help you need.

To find out how we can help, get in touch today by calling for a no obligation chat on 0131 357 1515, emailing cath@cathkarlinfamilylaw.co.uk or by filling out our contact form, here.

How To Find The Right Divorce Lawyer In Edinburgh For You

Family Law Edinburgh

Finding the right divorce lawyer in Edinburgh can be a stressful experience. Divorce and separation proceedings are an incredibly difficult time for all parties involved and can be an exhaustively stressful and emotional experience. Seeking advice can be overwhelming, particularly if you have a limited knowledge of the proceedings around a divorce.

Each individual situation is different, and there are huge range of options available to couples, so it’s vital that you choose the right lawyer for your proceedings. But how do you decide when there are so many legal firms to choose from?

We’ve listed some of the best ways to ensure that separating couples in Edinburgh find the right lawyer for them:

Tips For Choosing The Right Family Lawyer

#1 Take time to meet and discuss your individual requirements over with your lawyer, to get a feel for their character. Divorce proceedings can be one of the most stressful times in a person’s life, so make sure that you choose a lawyer you get on with. It’s important to have a good working-relationship with your divorce lawyer, so you need to be comfortable around them and get on with them personally.

#2 Choose a lawyer that has the necessary expertise. In cases of divorce there are usually many sprawling issues, like family and custody matters, financial and asset distribution etc. It’s important to choose a lawyer that is specialised and has a broad range of experience in a variety of scenarios.

#3 A good lawyer will consider multiple options. Court should only be a last resort; there are many options available to you and your lawyer should make all of these clear. Collaborative Practice, Mediation, Arbitration and Lawyer Negotiation are all possible avenues to resolve your separation proceedings through. Collaborative Practice is a process that involves couples signing an agreement not to go to Court and working together, using a series of facilitated meetings that focus on your family’s needs. Mediation uses a neutral professionally-trained mediator to facilitate settlement discussions between parties. Arbitration is similar to court, but allows you to choose who is going to decide your case, and means you can avoid the typical long delays of going to court. Lawyer Negotiation allows private negotiations without you even having to face your partner. There is even the option for a ‘DIY’ approach – with some clients preferring to sit round a table with their spouse and resolve things themselves, with a lawyer checking over afterwards that the agreement is legally binding and offering advice and support. All of these options should be conveyed transparently to you by a good lawyer.

#4 Make sure your lawyer is sympathetic to your needs. Your lawyer’s job is to get the best deal for you, but they should also be respectful of your feelings towards your former partner and how this might affect the outcome of the case that you want. Make sure your lawyer is fully considerate and understands your situation, so that you can work together as an effective team.

#5 See what others say! There’s no better referral than word of mouth, or the testimonials of previous clients. When choosing the right lawyer for you, it’s important to read case studies and find out more about how your lawyer has helped people in real-life situations. If you have any friends or family who have already been through divorce proceedings, then ask them for advice and to find out more about their experiences. It’s important to find a reputable firm for peace of mind during such a stressful time.

#6 Check your lawyer’s credentials. look for lawyers that have been accredited by the law society as being specialists in family law. Lawyers who have been accredited have had their credentials scrutinised by the law society.  Also look out for lawyers who are members of organisations such as CALM and CONSENSUS as they are going to approach your case in a non adversarial way.

Another sign of quality is if the lawyer is a member of the IAFL (International Academy of Family Lawyers). This shows they have been vetted and considered to be one of the top lawyers in their country. It is also an indication that they have an international practice and have a specialism in international family law cases.

#7 Find a lawyer who is straightforward. You need to feel confident in the direction of the case and the possibility of each outcome, so make sure your lawyer is open and transparent – and most importantly, that they don’t just get your hopes up without any basis for doing so. An experienced lawyer will understand the correct communication to have with their client, leading with the right balance of honesty and realism.

#8 Ensure that you feel valued by your lawyer. Make sure that your lawyer isn’t just clock-watching their appointments – this can signal that they won’t be giving you the full attention in future meetings. You need a lawyer that will care about your case, so book an initial consultation to discuss your requirements – this time should be a good indication to get a feel of whether your lawyer will give your case its full value.

Our Offices In Edinburgh

Cath Karlin Family Law is based in Edinburgh. As part a member if the IAFL, Cath Karlin has a huge range of experience as a highly respected family lawyer, being the lead partner in a number of ground breaking family law cases. She has also been at the forefront of introducing several new modes of dispute resolution to Scotland, such as Collaborative Practice and other positive initiatives (including ‘parenting after parting’ classes) for parents going through separation and divorce.

Cath Karlin Family Law is the ideal choice for families who are looking to resolve a dispute with efficiency and minimum impact and disruption to their daily lives. Your case will be handled sensitively and you’ll be given practical advice at every step of the way, leading to a smooth process that leaves you feeling confident and assured.

Booking An Appointment

Do you want to find out more information? Book a consultation or email for a no obligation chat by filling out the contact form here.

Custody & Divorce In Scotland

Divorce in Scotland Child hand resting on adult hand. Cath Karlin complex child law cases, child support, abduction and reolcaiton

What is best for your child?

Custody is now referred to as “Residence” in Scots Law​

The law doesn’t really give any guidance as to where the children should live or how much time a parent should spend with a child.

The court is only concerned with the welfare of a child. There has been a massive shift over the years as to what is deemed to be best for a child when looking at child custody.

When I first started out, mothers pretty much without exception obtained “custody “ and dads had “access” normally for a few hours on a Saturday afternoon.

What was bizarre about the old law was that when parents were married they both has equal parental rights. On divorce the parent with custody which got all the rights and the other parent was stripped of all rights.

The law changed in the mid nineties and now both parents retain parental rights and responsibilities even if they divorce.

The court is also told not to make an order unless it is necessary.

Nowadays, it is very common for shared care agreements to be entered into. Dads are no longer diminished the way they were before and it is widely recognised that children benefit from having a close relationship with both parents.

That doesn’t mean to say that there are not still some bumps to be encountered along the road.

I meet a lot of clients who steadfastly refuse to accept that the other parent has a big role to play in their children’s lives. They want absolute control and think that a few hours a week will suffice for the other parent.

I always try to ask them to put themselves in the other parents shoes and ask them how they would feel if their time with the children was restricted in the manner that they are suggesting.

From a child’s perspective, all they want is peace, stability and security. They want to know that thaw adults are making the decisions and that they don’t have to.

They love both of you and can feel very conflicted if they perceive that there is discord.

Also, be alive to the fact that they will tell you what you want to hear. That they love you more or they don’t like staying at daddy’s etc. Just be aware that very often they are telling daddy the same things about you!

What is best for children is business as usual. They want consistency and for both parents to be on the same page with regards to routines, bedtimes etc. The only way you do that is by communicating with one another preferably face to face.

By choosing an ADR method such as Collaborative Practice or Mediation you can achieve that.

Please also don’t forget grandparents and extended family. It is really important that links are maintained and that your children get to continue to spend time with both sides of the family.

Where the court has a role to play​

Sometimes a parent with care can offer no contact or very little or impose ludicrous restrictions. In these cases court is the only answer and the courts are generally quite receptive to giving patents with limited contact much more albeit on a staged and gradual basis.

There are also occasions when a child may be at risk or one parent really isn’t able to look after the children due to mental illness, drug or alcohol abuse or other behaviours that pose a risk. In those types of scenarios the welfare of a child is paramount and court is the only way to proceed in order to protect a child.

Understanding the many variables of divorce can be difficult. Check out Cath’s divorce services and expertise 

What Does Divorce And Separation Mean For Your House

matrimonial property Sunrise over foggy remote village. Cath Karlin Family Law Separation & Divorce

When you separate or divorce one of the main concerns is who will get to stay in the house. It is of course always better to agree than have the court impose an order. Seek the best advice from specialists in Family Law Edinburgh.

Who gets the house?

What happens to the house depends on whether or not it is matrimonial property. We therefore need to consider the various scenarios:

If you are married and living in a house your spouse owned before you married or even met then you have very limited rights. As you are married, you are entitled to occupy the property for a period of time unless you leave voluntarily or are forced out by a court order.

If you weren’t yet married when the home was purchased but it was purchased as a property for you both to live in as a family home, then the house is matrimonial property and even if your name is not on the title you still have a right to occupy and make a claim on it.

If the house was purchased when you were married, you are still entitled to occupy and also can make a claim on it.

If the property was purchased in joint names either before or after you marry then you are entitled to occupy it and make a claim on it.

So what types of claims can you make?

There are a number of options available:

Property transfer order

You ask that the property is transferred into your name. This might not be possible. The court can’t make this order unless you have the lenders consent if there is a mortgage. If you can’t afford the mortgage, the court can’t transfer the house.

Order for sale

You could ask the court to order that the property is sold. In many divorce actions. It is common to see one party asking the court for a transfer and the other asking for a sale.

If you choose to go down the ADR route – Collaborative Practice or Mediation you can be a lot more creative. For example, one party can elect to leave their capital in the house until the children are grown up and finish school or leave home.

You can keep the property in joint names if one party can’t afford to take on the mortgage on their own.

When you first decide to separate you might decide to remain living in the same house but separately. That can become untenable pretty quickly. Some couples elect to have an arrangement where they live in the family home on different days so that the children have continuity and stability. This is known as a “nesting” arrangement.

In some extreme cases you can apply to the court for an exclusion order. If there is domestic violence or mental abuse which is injurious to your health or the children’s the court can pronounce an interim order which ejects a spouse from the matrimonial home.

Save Money With a Budget Divorce in Edinburgh

budget divorce Edinburgh

A budget divorce doesn’t have to lack quality. A lot of people think that a DIY divorce will save them money, often the opposite can be the case.

Calm thoughts before the storm​

You should think of your divorce as something that you are going to live with for the rest of your life. It’s not just about getting that piece of paper. It is about your quality of life after divorce, how you get on with your children and whether or not you maintain relationships with your spouse, their family and mutual friends.

I appreciate that you may think that you can’t afford professional help but actually can you afford not to?

I remember, years ago, just before the financial crash of 2008, I was in the process of re- mortgaging my house. Lawyers are notorious for being ‘know it alls’ and I was no different. I was of the view that I could find the best mortgage deal on my own. After all, I was intelligent, had a bit of financial knowledge and had done it before…..

I was recommended to a mortgage broker by a colleague and I reluctantly went to see him. I didn’t think he could tell me anything I didn’t know. I was wrong. There was a deal with a ridiculous rate of interest that was about to expire in a couple of days. I signed up for it on the brokers advice. His fee was £300. It turned out to be the best £300 I have ever spent. From that day forward, I have always paid for professional advice. That £300 has probably saved me about £20,000 over the past 10 years.

It is exactly the same with divorce. Add to the mix, the fact that you may be all over the place emotionally, trying to hold down a job, worry about your children and worry about your future, and it is pretty obvious that you are not in the best place to attempt to negotiate a settlement on your own. I would recommend that you always seek advice. Not just legal advice but financial advice and support from a therapist if you feel you need it.

That said, there are ways you can minimise costs:

Do engage the right professionals​

Lawyers have limitations. We can’t give financial advice and aren’t qualified or indeed as knowledgeable as we think!

Don’t use your lawyer as a therapist. Lawyers aren’t trained to deal with your emotions and our hourly rate is generally a lot more than that of a skilled therapist.

Do your homework. Gather as much financial information as you can. Don’t pay your lawyer to do this for you unless you really are stuck or too busy.

Do make sure you read the letter of engagement your lawyer send you. Understand how they charge. Most lawyers charge an hourly rate. They also charge for travel,waiting in court, preparation and other work behind the scenes.

Do be prepared. Use time With your lawyer wisely. Think about what you want to cover in advance of your meeting. Write up a checklist so you don’t forget.

Do speak to your spouse. I always encourage clients to see if they can sort things out themselves with the lawyers assisting them in the background.

Do choose an ADR process such as mediation or collaborative practice.

And finally
Do keep out of court if you possibly can. This is where costs can really escalate. Your case will be subject to delays and fundamentally you surrender control of your future to a stranger who will impose a ruling on you that will affect you for the rest of your life.

Types Of Divorce & Family Law Court Process

family law court process Edinburgh

The process of getting divorced in Scotland varies depending on what you need the court to do and whether or not you have children under 16. There are many different types of divorce and different court processes to go with them. Family Law Edinburgh Specialists can guide you through the court process and explain every stage of the divorce.

In order to get divorced in Scotland you need to go to court​

You can ask the court to grant lots of different things in addition to divorce such as award a pension share, maintenance, transfer the house give you a capital sum. The court can also deal with where the children are going to live and levels of contact within the divorce action.

Technically, you could ask the court to decide all issues in respect of your separation. Sometimes you ask the court to decide just a few- for example you can sort out where the children are going to live without court intervention but you just can’t agree on what the division of assets is going to be.

If you ask the court to make decisions other than divorce, this is going to cost you money and take up a lot of your time as there will be multiple court hearings.

My top tip is to try to sort everything else out so that you are only asking the court for divorce.

That way costs are kept down.

There are a number of types of divorce:

Simplified divorce​

This is the easiest and cheapest way to proceed. You fill out a form and lodge that with the court along with your marriage certificate and the court fee. The court sends this to your spouse and if there is no opposition within a certain time period the court will grant a divorce. If you proceed this way you need to be sure that you have sorted out all financial issues as once divorce has been granted there is no going back to make financial claims. You need to be separated one year and have your spouse consent or be separated two years after which their consent is no longer required. You can only use this process if you have no children under 16. You are generally divorced within 6-8 weeks.

Ordinary divorce undefended.

This type of divorce is generally used where you do have children under 16. The court has to be sure that your children are being well cared for so won’t grant a divorce without knowing a bit about the arrangements for the children. A lawyer drafts a writ and provides he court with some detail as to the care arrangements for the children.

Normally this is the final stage in the process and you and your spouse have already signed a separation agreement and you are only seeking divorce so the action is undefended. Once a period of time has elapsed ( normally 21 days) the case will proceed as undefended. Your lawyer will minute for decree of divorce. Along with the minute, two affidavits need to be lodged detailing the care arrangements for the children. The court can refuse to grant divorce until it is satisfied that the care arrangements for the children are satisfactory. That is extremely rare as a good lawyer knows what type of detail the court needs. You are generally divorced within 6-8 weeks.

Defended divorce​

This is where you are asking the court to sort out some or all your issues along with divorce. You may be asking for something your spouse doesn’t agree with so they defend the action or vice versa.

This kind of divorce can take a lot of time, be emotionally draining and cost a lot of money.

How Much Does a Divorce Cost?

divorce cost Edinburgh

The cost of divorce in Edinburgh can vary enormously depending on your particular set of circumstances, your attitude and the attitude of your spouse.

The cheapest divorces​

The cheapest divorces are generally those where there are either limited assets or no assets and no children and where through nobody’s fault the marriage just hasn’t worked out and both of you are content to walk away with what you have in your own name. If there is really nothing to sort out between you then divorce could cost as little as a few hundred pounds.

Expensive divorce​

The most expensive divorces are generally those where there is a bit of money and assets have become entangled along the way. One spouse might have access to much of the asset base and the other may not have much of an idea as to the value of the assets accumulated. The spouse with the money may be reluctant to divulge what they have. In those circumstances, the spouse with no money may have no option but to raise a court action so that their spouse is compelled by the court to disclose what they own. If there are significant assets, these cases tend to be raised in the Court of Session, Scotland’s highest national court. Advocates ( barristers) are instructed and they also charge a fee.

Other examples of cases that might be raised in the Court of Session are those with an international element of those where a novel point of law is being argued.

The cost of these cases can be significant. I have had cases that have cost clients upwards of £250,000. A cost benefit analysis has to be carried out before we embark on this kind of divorce action. For example, in one case, an offer was made by a husband of £2 million. He hadn’t disclosed his asset position at all. My advice to the wife was essentially that I couldn’t advise her. I had no idea if this offer was good or bad as I had no idea as to the extent of the asset base. The wife decided to proceed.

In the end she received an award of £ 6 million from the court. She spent about £300,000 along the way but in the end was a lot better off than she would have been without the court case. In that type of scenario, spending a bit of money is generally worthwhile in order to secure a greater financial reward although the process may take an emotional toll and you have to factor that in.

Pointless, wasteful divorces​

Where it really gets out of hand is where there isn’t that much money and both spouses need to preserve as much wealth as they can so that they can each afford to live independently from each other . Despite this, one or sometimes both of them are so caught up in fighting with one another they lose sight of the end goal. I have had clients openly admit that they would rather end up with nothing rather than see their spouse with something. Frequently, by the time they are finished fighting there isn’t much money left. When I set up my own firm, I made a pledge to myself that I wouldn’t take this type of client on. I don’t want to play any part in this type of mindless destruction.

The best kind of divorce​

Thankfully, most of us are not in the market for a pointless, destructive fight and most of us don’t have complicated finances. In the main, most couples have a house, a mortgage, some pension provision, some savings, maybe some other debt and maybe some other assets such as a business. Most couples want the process to be as painless as possible and most recognise that they should be able to get along post divorce especially if they have children. One spouse may blame the other for the divorce and one may be very hurt, say if there has been an affair however most people can put their own issues to one side in the interests of getting matters resolved.

Most couples, will need a bit of help along the way. A lawyer, or lawyer mediator is able to help you identify which assets are matrimonial and which are not.

They will also help you to value the assets that are matrimonial correctly. There are then various legal arguments that can be advanced in favour of one or other of the spouses.

The key to keeping costs down is to have a good attitude and an open mind. You have to accept that you are not going to get everything you want and you will need to make concessions along the way. Try not to just focus on money. Rather think about what you really need rather than what you think you should be entitled to. A good settlement isn’t just about the money. It is about you being happy at the end of the process or at least being reasonably content.

If you have somewhere adequate to live, enough money to have a reasonable life, some retirement provision and happy kids is that not enough?

If you are a busy professional who has a wife who lets you see he kids whenever you want and allows you to change plans at the last minute if you have a work crisis is that not worth you giving her an “extra”£20,000 so she can afford a decent house?

I believe that the best investment you can both make in your futures is to embrace a process that ensures you can communicate effectively with one another. That means sitting in the same room as your spouse with your professional advisers. Both Collaborative Practice and Mediation lend themselves to this. What you are aiming for is to resolve all your issues before you get to court. You do that by face to face discussions facilitated by professionals and entering into a separation agreement first.

Unlike England; the court doesn’t have to approve your settlement. You are free to be creative as you want. I always tell my clients that the law is the default position if you can’t agree. What I encourage you to do is find a bespoke settlement that suits your family.

The cost of this type of divorce can also vary depending on your asset base, the issues you have to resolve and the number of meetings you need. What I can say is that it won’t cost anything like litigation and the difference is that this is money well spent on securing a happy future for your family.

Divorce and Separation Doesn’t Have to Be Stressful

divorce & separation

Whether it’s something you’ve been wanting to do for a while or it has been sprung on you out of nowhere, the immediate assumption is that divorce and separation are stressful. In fact, a lot of people delay splitting from a partner simply because they can’t bring themselves to take on the daunting task of separating. Though it can be a stressful time for many people, there are ways to ensure the process is as straightforward and as simple as possible.

Top Tips for Divorce and Separation Edinburgh

  • Don’t Be Shy About What You Want – When you separate from a partner, you are bound to want different things. Perhaps you believe you are entitled to more than they are offering and maybe they already feel as though they are being generous enough. Though it’s important to compromise, you can’t afford to be shy about what you want. From the moment you start proceedings, be open and honest about what you really want. A good family lawyer will be able to advise you so that you can manage your expectations.
  • Stay Cool, Calm and Collected – Though it may seem difficult to begin with, there’s no better way to get through the process of separation than staying as calm as possible. There are bound to be times when you don’t agree with what the other party is suggesting and there will definitely be matters that are up for debate. You may even be tempting to start calling each other names and highlighting the other person’s flaws. However, staying as calm as you can will help to prevent fighting and stress. When both of you remain cool and collected, it’s a lot easier to discuss how things will work going forwards.
  • Enlist a Family Lawyer to Help – To ensure that your separation or divorce goes as smoothly as possible, it’s a good idea to enlist an experienced family lawyer. Not only does this ensure that all of the legalities are properly taken care of, but it also ensures that you and your partner have the best chance of separating in an amicable way. A good family lawyer will also be able to refer you to a good counsellor to help you deal with what can be a very emotional time.

There’s no recipe for a perfect separation and there’s definitely no easy way to get divorced. However, by staying calm and having professional representation, the process can be made a lot less stressful. For more information on divorce and separation, get in touch with Cath Karlin Edinburgh Family Law.