What happens if my spouse refuses to sign the divorce or dissolution papers?

The basis upon which a couple can divorce (or dissolve their civil partnership) in Scotland, is the irretrievable breakdown of the marriage. 

In the case of divorce, that irretrievable breakdown can be established through the adultery of the other spouse, the unreasonable behaviour of the other spouse or the couple having been separated for a period of over one year or over two years. The same is true for dissolution of civil partnerships, albeit adultery cannot be used as a basis on which to establish the irretrievable breakdown.

Simplified procedure

A party can apply for divorce or dissolution using the 'simplified' procedure in the Sheriff Court or the Court of Session. For an application in the Sheriff Court, one of the parties must have been resident in the Sheriffdom for forty days immediately prior to the application being made. The parties must have been separated from each other for at least one year prior to completing the application. The process is relatively quick and inexpensive. It can only be used where there are no children of the marriage or civil partnership under the age of sixteen years.

In granting a divorce or dissolution under the simplified procedure, the court cannot make financial orders. Therefore, if the applicant wishes to seek a financial order on divorce or dissolution, this process cannot be used. If the simplified application is opposed on the basis that the other party wishes to seek a financial order, the application for divorce or dissolution under the simplified procedure will be refused.

To divorce or dissolve a civil partnership under the simplified procedure, a form will be completed by the applicant, setting out that the parties have been separated for over one year. In order for that divorce or dissolution to be granted, the other party must provide their explicit consent by signing the form. The form will be provided to the court, together with the parties' marriage certificate or civil partnership certificate. The form will be served on the non-applicant spouse or civil partner by the court and they will have 21 days in which to indicate to the court that they wish to oppose the application, failing which the divorce or dissolution will be granted.

If the non-applicant spouse or civil partner refuses to sign the consent form to divorce or dissolution on the basis of having been separated for over one year, the applicant will have to wait until they have been separated from their spouse or civil partner for at least two years as their spouse's/civil partner's explicit consent to divorce or dissolution is not then required. However, the non-applicant spouse/civil partner can still oppose the application for divorce/dissolution if they want to make a financial claim. Alternatively, on refusal by the non-applicant spouse/civil partner to sign the consent form, the applicant spouse/civil partner could raise a divorce or dissolution action based on the unreasonable behaviour of the non-applicant spouse/civil partner. For divorce, it could also be raised on the basis of the non-applicant spouse's adultery. This would only be possible if there was enough information available to justify such a divorce or dissolution being raised on that basis.

Ordinary procedure in the Sheriff Courts

The alternative process, known as the 'ordinary' procedure, may be used where the criteria needed for the simplified procedure cannot be satisfied. This procedure allows irretrievable breakdown of the marriage or civil partnership to be established based on separation periods (one year with consent, or two years without consent), alternatively on the basis of unreasonable behaviour or, for divorce only, adultery. This process can be used where there are children under the age of sixteen. Financial orders can also be sought.

One party will commence proceedings by having a document known as an "initial writ" drafted by their solicitor. The writ will be warranted by the court and served on their spouse. The spouse will have twenty one days from the date that the writ was served on them to defend the action, should they wish to do so. Defences will then be due fourteen days thereafter. The court will set down a timetable meantime which will outline various dates for the parties to work towards. Parties are free to agree settlement terms between them at any time during the proceedings, failing which, the court will impose a resolution to all matters of dispute arising from their separation.

Can my spouse refuse to sign the divorce or dissolution papers?

When parties raise divorce or dissolution proceedings on the basis of unreasonable behaviour, or divorce based on adultery or the fact of their having been separated for more than two years, they do not require the consent of the other party for the divorce or dissolution to be granted

If a divorce/dissolution is applied for on the basis of the parties having been separated for more than one year (with the other party consenting), a consent form will need to be signed by the party who is not making the divorce/dissolution application.

Should a spouse/civil partner fail or refuse to provide their written consent to the divorce/dissolution, they cannot be compelled to do so. In that case, irretrievable breakdown will need to be established on a different basis.

Our family law experts are able to provide advice on all aspects of separation and divorce. For more information or to speak with one of our divorce lawyers, please get in touch.