Ending a serious relationship is a significant life event that can be both emotionally and legally complex. Understanding the different procedures can help in navigating this challenging time more smoothly.
Grounds for Divorce
In Scotland, there are specific grounds upon which a divorce can be granted, as follows:
- Irretrievable Breakdown of the Marriage: This can be proven through adultery, unreasonable behaviour, or a period of separation (one year if your spouse consents or two years without consent).
- Either spouse obtaining an Interim Gender Recognition Certificate.
Simplified Divorce Procedure
The Simplified Divorce Procedure was designed to speed up and, as the name suggests, simplify the divorce process for separated couples. To be eligible to apply for a simplified divorce, the following conditions must be met:
- You have been separated from your spouse for at least one year (and your spouse must consent to the divorce being granted) or two years (without consent).
- There are no children of the marriage under the age of 16.
- You and your spouse have resolved all financial issues arising from the separation.
- Neither you nor your spouse are unable to manage your affairs because of mental illness, personality disorder, or learning disability.
- The Scottish courts must have jurisdiction to grant the divorce.
This procedure is typically quicker and less costly than the other routes to divorce.
Ordinary Divorce Procedure
The Ordinary Divorce Procedure is the standard way of obtaining a divorce in Scotland. You will require to use this procedure where: (1) you do not meet the criteria for the Simplified Divorce Procedure; (2) you are applying for divorce on the grounds of adultery or unreasonable behaviour (3) the divorce is contested, or (4) if there are unresolved disputes over financial matters or arrangements for the children of the marriage. This process requires more comprehensive legal steps as follows:
- An Initial Writ will be prepared outlining the grounds for divorce It will be sent to the court to ask for the court’s authority to serve the initial writ on your spouse.
- Your spouse (and, in certain circumstances, other parties such as your mortgage lender) will then be formally notified of the divorce proceedings.
- Once your spouse has received the Initial Writ, they have 21 days to decide whether to contest the divorce or agree to the terms. If they agree, the divorce is known as an undefended divorce. If they do not, the divorce is known as a defended divorce.
Undefended Divorce
If your spouse agrees to the divorce, the process is relatively straightforward. Sworn statements known as "Affidavits" will be prepared, setting out the evidence to support why the divorce should be granted. If, for example, the divorce is based on the unreasonable behaviour of your spouse, details of that behaviour will be set out in the Affidavits - one from the applicant seeking the divorce and one from a witness to support the applicant's version of events. The court reviews all the paperwork submitted in support of the application, which includes the initial writ and Affidavits.
If you have children under 16, the court will ensure arrangements made for their care are satisfactory and in their best interest and no orders require to be granted in respect of them.
Defended Divorce
If your spouse disagrees with the grounds for divorce or your proposed arrangements for assets, finances, and children, they must submit a Notice of Intention to Defend (Form F26) to the court after receiving the Initial Writ.
In a defended divorce, if matters cannot be agreed between the parties (and the action "settled"), an evidential hearing (a "proof") may need to be fixed. At that hearing you, your spouse, your solicitors, and witnesses present your respective cases to the sheriff, who will make the final decision.
The court will determine if the marriage has indeed broken down (if your divorce is based on the ground of irretrievable breakdown of marriage), and whether the court is satisfied with the care arrangements for any children involved. Additionally, the court will address the division of matrimonial property and will consider which financial orders ought to be made. Even if you have not requested any financial orders, your spouse may consider making a financial claim against you when they oppose the divorce.
Following the granting of the divorce (whether defended or undefended), the court issues a divorce certificate known as the extract decree of divorce. This is the document which you will subsequently produce should you require to prove your marital status.
Dissolution of Civil Partnership
In Scotland, the termination of a civil partnership (called a "dissolution") follows a similar process to divorce. The grounds for dissolution are broadly the same, with the exception that adultery cannot be used to establish irretrievable breakdown. Upon granting the dissolution (whether defended or undefended), the court issues a dissolution certificate known as the extract decree of dissolution.
While the Simplified Procedure process itself can sometimes be navigated without legal assistance, the Ordinary Procedure is more complex. Under Scots Law, your right to make any financial claim against your spouse (as a consequence of your marriage) terminates on divorce. It is therefore important to ensure that you have received legal advice and that you go into the process with your eyes open prior to applying for divorce. Our family law solicitors are experienced in navigating a wide range of divorce cases and can provide you with valuable guidance and support throughout the process.
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