Divorce

Navigating family and divorce law during a turbulent period in your life can be particularly difficult and distressing. There are a number of issues to sort out with the other party including property, finances, possessions and children and how each action proceeds depends on the individual circumstances.

Divorce Law in Scotland

Marriages end for many different reasons. Relationships can deteriorate over a long period of time, or be irreparably damaged by a single incident; some couples are married for a short time before realising it is not what they intended;  others remain married despite serious problems such as domestic abuse.

Divorce should only be considered when the relationship has encountered serious trouble, and its conclusion is better for both parties. It is important to consult a legal advisor to discuss your concerns and issues and receive tailored advice relevant to your particular situation.

There are several legal options for processing a divorce, each of which has varying legal consequences. The options include:

• separating informally, without going to court;
• separating by drawing up a separation agreement;
• ending your marriage formally by getting a divorce; or
• getting a decree of nullity.

Marriage has different meanings to different people and, as such, people will choose the option to end the relationship appropriate to their situation. Here we focus on the option of divorce.

Marriage is a formal legal status governed by the Marriage (Scotland) Act 1977. The only way a marriage can be ended, assuming it was valid, are by divorce or death. The law perceives the union of marriage as having a cohesive, stabilising effect on people and the community and, thus, makes it difficult to reverse the process. The grounds of divorce in Scotland are:

1. One year's continuous non-cohabitation with the consent of the other party.
2. Two year's continuous non-cohabitation (consent is not required).
3. Unreasonable behaviour on the part of the other party - what the law requires is the party to prove that it is unreasonable for a pursuer to continue living with the defender because of the behaviour of the defender.
4. Adultery on the part of the other party – this is a historically well-known ground for divorce. Its scope is limited to at least one act of penetrative intercourse between one of the spouses and another person of the opposite sex. It should be noted that this ground is unable to be relied upon if, having discovered the adultery, the pursuer chose to keep living with the defender after the end of a period of three months following their infidelity. This ‘condonation’, as it referred to, is based purely on living together.

These are the justifications that may be used to facilitate divorce. Evidence of this will need to be brought before a court before they grant a divorce, whether through the simple divorce procedure or a protracted court case.

How to get a Divorce in Scotland?

Simple Procedure

The ability to acquire a divorce is a legal process dealt with by the court. In the simplest cases, you will need to lodge the appropriate form in the Sheriff Court. Although it is not required that you attend court for a ‘case’, the Court is still the body that issues the divorce.

The Court simply grants the divorce on the merit of the form you have provided and does not concern itself with other factors. This method is only permitted, therefore, if there are no financial matters to decide and no children under the age of 16.

This process is the ‘simplified’ or ‘quickie’ route to obtaining a divorce. You will not normally need a solicitor for this. However, it is often wise to consult one as you will need to have the form signed by a Justice of the Peace, Notary Public or Commissioner for Oaths.

You can file for this simple procedure if you have been separated for one year and both parties consent to the divorce or two years if only one party consents. Continuous separation of over a year is considered evidence of the irretrievable breakdown of a marriage. This period need not be continuous, and periods of separation may be accumulated to the year threshold. Calculating and being able to provide evidence of this is not always an easy process and if you are in doubt as to how this applies to your circumstances then consult a specialist divorce lawyer.

Court Action for Divorce

If the simplified procedure is not available, then a ‘writ’ will need to be filed by one of the parties with the court for an ‘action of divorce’.

This writ not only asks the court to grant certain details of the separation, including the divorce itself, but also extends to financial settlement and matters relating to childcare. As this process is more adversarial, it is highly likely that you will require a solicitor.

It will not be surprising that this procedure is usually filled with hostility brought on by the end of the relationship. This hostility may be avoided, and legal costs significantly reduced if it is possible to agree on matters between the two parties. Additionally, this escapes the uncertainty of leaving important decisions up to the court.

The court has no interest in the reasons behind the ending of the relationship other than those relating to one of the legal grounds for divorce. Divorce in Scotland is not based on fault but the irretrievable breakdown of a marriage. As such, assets will not be divided in such a way as to ‘punish’ a party because the breakdown of the relationship was their fault.

This process operates by one party (known as the pursuer) serving the writ on the court, petitioning for what they want from the breakdown. The other party (known as the defender) is able to defend this action and respond with details of what they want the court to do instead. This presents the court with two opposing accounts of how the breakdown took place and how assets should be divided.
 
Evidence will be required to support arguments and will comprise of sworn written evidence (affidavits) and documentary evidence, like bank statements and pay receipts. Any settlement decided by the court will be legally binding on both parties.

Writs may be lodged in the court nearest the family home. The defender is then given 21 days to lodge their defence should they wish to do so. If they do not, the action is undefended and the court will assess the reasonableness of the pursuer’s requests and make a grant accordingly.

Find out more about Divorce law in Scotland by visiting our frequently asked questions. 

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If you require advice on getting Divorced in Scotland, Contact us today or call us on 01315569599