Do I need to go to court to get a divorce?

The thought of going to Court, for whatever reason, can sometimes be overwhelming. It can be enough to make someone put off the inevitable, ignore the elephant in the room and stay in a marriage long after it has lost its sparkle.

While a divorce legally ends a marriage, and therefore some documentation will need to be filed with the Court, in the majority of cases, it is not necessary to appear in Court to obtain a divorce. Here we look at the divorce process and the options available if you are considering getting a divorce. Get in touch with our team if you require advice on getting divorced in Scotland

What are my options for getting a divorce?

If you are using the simplified procedure, also known as the DIY divorce procedure, it must be proven that there is an irretrievable breakdown of your marriage. This irretrievable breakdown can be based on separation for a duration of:

• One year if both parties consent to the divorce or;
• Two years if one party does not consent.

Using the simplified procedure is generally a straightforward, faster and less stressful way of ending a marriage without going to Court. It involves completing official forms and swearing an affidavit in front of a Justice of the Peace, Notary Public or Commissioner for Oaths and then sending the papers to the Court.

Residence

Before starting any type of divorce proceedings, Scotland must either be your permanent home or the place where you have lived for at least a year. If you satisfy these criteria and the Court approves the application, a divorce can be granted on the papers without the need for either of you to attend Court.

When is the simplified procedure not available?

If the divorce is going to be on the basis of adultery, or you are relying on unreasonable behaviour to prove that the marriage has broken down, the simplified divorce procedure cannot be used.  Instead, the ordinary procedure must be followed. This is also the case if:

• One party is challenging the divorce
• There are children under the age of sixteen
• There are outstanding financial issues to determine.

Does this mean I will have to go to court?

If there are children under 16 and you cannot agree with your partner who they will live with, where they will live and when the other parent will see them, it might be necessary to attend Court.

You will also need to go to Court if either party is seeking financial relief or you are unable to agree on how to divide jointly held finances or property. If you can come to some financial arrangement with your partner, you must set out these arrangements in writing and file them with the Court. If the Court is satisfied with the proposals, a divorce can be granted on the papers without attending a hearing.

What if the court isn't satisfied?

If the Court needs further information from you and your partner about arrangements for the children or finances, it will arrange a date for a hearing.  These issues must be resolved and finalised before a final decree of divorce will be issued.

How much will it cost?

In some cases, legal aid funding may be available. Our divorce lawyers can advise you further once you have decided to proceed with a divorce or if you have been notified that your partner is intending to divorce you.

Find out more about divorce by reading our FAQs here.

How can Thorley Stephenson help?

It is always wise to seek the advice of a specialist family lawyer from the outset, whether you are contemplating divorce proceedings or being divorced by your partner.

Discussing your options

Even if there are no children to the marriage under the age of 16 or you haven't considered a financial settlement, we can advise on your options and assist with the procedures that need to be followed. It is important to identify whether any claims for financial relief might apply as if they are not raised during the divorce process, the right to raise them in the future will be lost. It is not always necessary to go to Court to settle financial issues, and we can help negotiate and draft a financial settlement that can settle these matters out of Court.

Remember that if you do need to go to Court, the Court will not seek to establish who is at fault for the breakdown of your marriage. Instead, the Court will resolve issues that you and your partner cannot agree between yourself. This can help to establish long term emotional and financial security and provide some peace of mind. If going to Court does prove necessary, our team of experienced divorce lawyers will help to make the process as stress-free as possible by providing practical advice, guidance and support from the very beginning.

Contact our Divorce Lawyers in Edinburgh

If you have any questions about the financial aspects, or any other stages, of the divorce process, please do not hesitate to get in touch. Our family law team are here to provide you with clear, practical and tailored advice for your circumstances. If you instruct us, we will use our skills and experience to achieve a financial settlement that works for you – allowing you to move on in the quickest and most efficient way possible. For expert legal advice, call us on 0131 341 1827 or complete our online enquiry form, and we will be in touch.