The breakdown of a marriage can be a difficult time for all involved. While it is possible to divorce quickly if you can prove adultery or unreasonable behaviour, it is generally less stressful to avoid blaming one party for the relationship breakdown and instead raise divorce proceedings based on the period of separation. So, how long must you be separated to divorce and what counts as separation?
What counts as separation?
Clients often wonder whether they are "legally" or "formally" separated and what actually counts as separation. The date of separation is the date on which you stopped living together as husband and wife. This date is significant for the timing of the divorce application but also because it is the date on which assets in your sole name are valued for divorce purposes.
In Scotland, the date of separation is a matter of fact. There may often be an obvious date such as when one spouse moved out of the matrimonial home or moved into a separate bedroom, or maybe it was when they told friends and family. This can be contentious in some cases, however, such as when one spouse works overseas or away from the matrimonial home. In such circumstances, information will need to be gathered about your unique circumstances to attempt to determine whether separation has taken place and if so, when.
If you and your spouse cannot agree on the date of separation, then evidence will need to be produced to establish the date and what counts as separation may ultimately be determined by the court. Where agreement can be reached the terms are usually documented in a formal contract known as a Separation Agreement which normally resolves all legal matters arising between the couple as a result of their separation.
What happens if we get back together?
It is not uncommon for couples to want to give the relationship another try. The court must, however, be satisfied that there is no prospect of reconciliation before granting a divorce.
For the purposes of divorce, "reconciliation" is where you have resumed living together as husband and wife. If you reconcile within the first 90 days of your separation and then separate again, the original date of separation will stand. Otherwise, the date of separation will be the most recent one.
When can I get divorced?
You can get divorced when you can show that the marriage has broken down irretrievably. This can be shown where you have been separated for a certain period of time, namely:
1. One year – divorce can be granted one year after you have separated with the consent of your spouse. The court will ask your spouse to confirm in writing that they consent to the divorce before it is granted; or
2. Two years – you can apply to the court for a divorce after you have been separated for over two years without your spouse's consent.
It is important to note while considering when you can get divorced that divorce will usually only be granted once the financial matters arising from the separation are resolved (either through negotiation or by court order) and, if there are children of the marriage under the age of 16, that the arrangement for their care and upbringings are resolved (again through negotiation or court order).
Irretrievable breakdown of marriage can also be established when you can prove adultery or unreasonable behaviour. If that is the case, you can raise divorce proceedings immediately. These grounds are more difficult to establish but occasionally there are compelling reasons (e.g. domestic abuse, preserving assets) which justify proceeding on one of those grounds. It is however more simple and less expensive to look at how long you have been separated before you proceed with a divorce and to do so without 'blaming' your spouse.
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