Remote Notarisation- getting divorce moving again
The Law Society of Scotland have published new Guidance today which will allow affidavits and simplified divorce applications to be notarised remotely. This is a huge step forward for many people who have seen their divorces on hold, because they can’t get over the final hurdle of submitting the notarised documents that need to accompany the request for a divorce.
Until this new Guidance, Notary Publics had only been able to notarise documents if they were in the presence of the person signing the document. There were some Notaries who were able fulfil that notarial function through glass, but not everyone was able to find a notary who could do that. This new Guidance, which will last until the Coronavirus (Scotland) (No2) Act 2020 is repealed allows the notarial function to be exercised remotely.
If your divorce is uncontentious and you have no need for any financial orders from the court, and no children under 16 you can use the Simplified Procedure, or 'DIY divorce'. You can download forms online and many people do most of this process themselves. There is still a need though to have your signature on the final form notarised. Until the pandemic lots of us enjoyed this job- notarising a signature wasn’t a big piece of work if you had worked with someone and knew them. In cases where we had helped people get their finances resolved, and to the point where they had a Minute of Agreement signed it was lovely to see them briefly months, or even years, later to notarise the simplified forms for them- it’s a special part of this job to see the transition from the anxious, uncertain and unhappy person who came in for a first meeting, to the forward-focused, positive and calm person who is ready for the next chapter. I suppose the point here is that, by definition, the divorce is not opposed, so you do see people who have been able to make progress and work constructively with their soon to be former spouse.
The other common situation where notarisation is required for divorce, is when there are cases that are undefended, but where people have children under 16 (so they can't use the simplified procedure). Even if you have agreed everything and no orders are to be sought from the court if you have children who are under 16 the court can’t grant divorce unless satisfied that the care arrangements for the children are adequate. So, when the application for divorce is made, you have to lodge two affidavits (which are sworn statements, that have been signed and notarised). These affidavits provide written evidence to the court about how the children are doing and what the arrangements are for them. Without those affidavits the court won't be able to grant divorce.
You can find the detailed Guidance here and my colleague, Stephanie has recently written about applications to re-start cases, which may also be relevant. Allowing for remote notarisation is a really positive step forward, and I hope that it will mean that some of the people we have been working with will start to feel that there is some light at the end of the tunnel and that their divorce is finally in sight.