Now that the festive fortnight is over we have entered divorce week – the week which sees most people initiating a separation and/ or divorce proceedings.
What is needed to initiate divorce proceedings in Scotland?
Firstly, a ground for divorce is required. Strictly speaking, there are only two grounds for divorce in Scotland.
The first ground is the irretrievable breakdown of the marriage.
Irretrievable breakdown of the marriage can be proved in four different ways.
The four different ways of proving the irretrievable breakdown of the marriage are commonly referred to as ‘grounds for divorce’.
They are: – behaviour; adultery; one year’s separation with consent of the other spouse; two years’ separation (with no need for the consent of the other spouse).
Scots law treats granting of divorce seriously.
Evidence of the irretrievable breakdown of the marriage is needed.
The Scottish courts will usually only grant divorce when they are satisfied, on the evidence of the party seeking the divorce and a third party witness; that the marriage has broken down irretrievably.
The second ground for divorce is the production of an interim gender recognition certificate, which is issued where a spouse has had a sex change.
Secondly, a Scottish court must have the authority to hear your case.
If a particular court has that authority, it is said to have ‘jurisdiction’ to deal with your divorce.
One of the main aspects of establishing jurisdiction is location.
A local Sheriff Court would hear a divorce where the couple lived in that Sheriff Court district. Although Sheriff Courts can only hear local cases, the Court of Session has jurisdiction to hear cases from all over Scotland.
Where spouses have connections with more than one country it is possible that the court of another country may also have jurisdiction to hear the divorce.
If this is the case, there may have a choice of country in which divorce proceedings can be raised.
Various factors need to be taken into account when deciding which court is the most appropriate, including the financial advantage that can be gained from divorcing in one court rather than another.
In cases where both spouses live in Scotland, the question of jurisdiction is straightforward.
However, if either spouse has connections with another country, it is important that early specialist legal advice is sought.
Thirdly, to raise divorce proceedings the parties’ marriage certificate and the birth certificates of any children of the marriage under the age of 16 must be presented to the court.
Ordinarily the court will not allow anyone to commence divorce proceedings without these documents.
The court requires the principal certificates. In Scotland, this means an extract of the marriage or birth certificates.
The court will not accept abbreviated birth certificates. If the marriage and birth certificates are in a foreign language, the court will require not only the original certificates, but also certified copy translations of all the certificates.
Any other lodged documents which are in a foreign language must also be translated.