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When you get divorced, you and your ex-partner must agree upon matters such as the grounds of divorce, the division of assets and future child care arrangements. If, however, a decision cannot be made regarding any of these issues, your application will be deemed a 'defended divorce'.
What is a defended divorce?
A defended divorce is when either you or your ex-partner does not agree to the divorce. This may be because there is a dispute regarding the reasons for divorce, although more typically there will be a disagreement over money, property or child care.
If you are the one to begin divorce proceedings, you must send an initial writ to the court stating why you wish to divorce, along with other information such as how you are going to divide your assets, who is going to live in the matrimonial property and how your children will be looked after. The court will then send a copy of this to your ex-partner. If any aspect of the divorce is disputed, he or she must respond by sending a Notice of Intention to the court. This stipulates their wish to defend the divorce, and sets out their reasons for doing so.
How to deal with a defended divorce
If you are facing a defended divorce, it is absolutely essential you seek advice from a family solicitor. This will allow you to clarify your legal position, ensuring both your rights and your best interests are protected at all times.
After establishing the facts of your case, your lawyer will be able to suggest what action you should take next. This could involve methods of dispute resolution, including negotiations between solicitors, mediation or collaborative family law.
However, if this approach does not conclude in a mutually agreeable decision, it will be necessary for your divorce to go to court. Ordinarily, a defended divorce case will be heard in the sheriff court, although it could be transferred to the Court of Session if a large amount of money is at stake. Witnesses will be called upon and other evidence used throughout the course of the hearing.
It will then be up to the court to decide whether a divorce can be granted. If so, the court will also state the grounds for divorce and make rulings regarding any other issues that have not been agreed upon - for example, where a child should reside, how much contact the other parent will have, who will live in the matrimonial home and how assets should be split.
Family lawyers in Dundee and Edinburgh
If you are going through a defended divorce, you need a specialist family lawyer on your side. For expert assistance you can rely on, contact us at Blackadders today.
For more information, simply call us on 01382 229 222 (Dundee) or 0131 222 8000 (Edinburgh) or complete the enquiry form on the right of this page and we will be delighted to help you.