When you get married or enter into a civil partnership, you acquire a status that creates rights and obligations between you and your spouse/partner. The main consequences of this status include occupancy rights, succession rights and the obligation to aliment.However, when a marriage or civil partnership breaks down, spouses/partners have the possibility of legally ending the marriage/partnership and these rights and obligations by seeking a Divorce or Dissolution. This article will set out the Divorce procedures in Scotland. If you would like information on the Dissolution of Civil Partnerships, contact one of our today on 041 375 1222.
The overarching principle when it comes to considering whether a married couple can Divorce is whether or not there has been an irretrievable breakdown of the marriage. Irretrievable breakdown of the marriage means that the couple have separated and have no intention of getting back together.
The Court will not grant a Divorce unless it is satisfied that there are no outstanding financial matters to be resolved and that the care and upbringing arrangements for any children of the marriage are satisfactory. Therefore, it can be very helpful for parties to come to a mutual agreement regarding the finances and their children once they have separated and before proceeding to Divorce.
In Scotland, there are two procedures that can be used to apply for a Divorce. These are the Simplified Procedure and the Ordinary Procedure.
You can apply for a Simplified Procedure Divorce based on one year separation with the consent of your spouse, or two years separation without your spouse’s consent. In order to be able to apply for a Simplified Divorce there must be no children of the marriage under the age of 16 and no financial matters to be resolved. You must also meet certain residence requirements in order to apply for a Simplified Divorce. The Scottish Court website provides valuable information on the procedure and allows you to download the necessary forms. The application from includes an Affidavit which will require to be sworn by a Justice of the Peace, Notary Public or Commissioner for Oaths. For some, it is useful to seek legal advice in relation to a Simplified Divorce. This way, provided their solicitor is a Notary Public, they can swear their Affidavit. Our Family Law Solicitors can assist you with your Simplified Divorce on a fixed-fee basis.
You must apply for an Ordinary procedure Divorce if you do not qualify for a Simplified Procedure Divorce. Unlike the Simplified Procedure, you do not submit an application form to Court. Your solicitor must raise Court proceedings on your behalf. Your solicitor will first determine on what grounds you wish to raise the Divorce action. As has already been mentioned, the marriage must have irretrievably broken down. There are four situations that the legislation recognises as an irretrievable breakdown of the marriage. These are more commonly referred to as the four grounds of Divorce and they include adultery, unreasonable behaviour, one year non-cohabitation (provided both parties consent to a Divorce), and two years non-cohabitation.
Divorce on the grounds of adultery and unreasonable behaviour are less common. The party seeking a Divorce on either of these grounds must be able to evidence that their spouse was unfaithful or that they behaved in such a way that they cannot reasonably be expected to live with them. The more common grounds of seeking a Divorce are the grounds of non-cohabitation for either one year or two years.
It is always advisable for spouses to come to a mutual agreement regarding the finances and the care of their children and enter into a Minute of Agreement before seeking a Divorce. If financial and child arrangements cannot be agreed, you may need to raise Court proceedings to resolve these. This can be costly and wearing for everyone involved. Our expert Family Law Solicitors can advise you with a view to preparing a Minute of Agreement between you and your spouse. Once both parties have signed the agreement, you can proceed to a Divorce under the Ordinary Procedure.
If you have been separated for over one year but under two years and there are children of the marriage under the age of 16, you can apply for a Divorce on this basis. You will need the consent of your spouse. If, however, you have been separated for over two years you do not need your spouse’s consent.
Your solicitor will raise the Divorce action by drafting the necessary Court papers, which are known as the Initial Writ. This sets out the basis for the Divorce. This is lodged at Court along with your Marriage Certificate and your children’s Birth Certificates. Once the Court receives these, the Sheriff will warrant the papers. This warrant is the authority to serve the Divorce papers on your spouse. Once the papers have been served, your spouse has a period of 21 days to oppose the action. If after this time no opposition is lodged, your solicitor will begin to prepare the necessary paperwork to be lodged at Court and ask for Divorce to be granted. This will include two affidavits: one given and signed by you, and one given and signed by a third party witness. Once the Court has received the paperwork, the Sheriff will decide whether to grant the Divorce. If Divorce is granted, an Extract Decree of Divorce is sent to you, which is confirmation of your Divorce.
If you are separating or have separated, and would like further information and advice regarding Divorce, why not come along to our free divorce clinic on 29 August 2019? Our will be on hand to provide advice – call 0141 375 1222 to reserve your free 20 minute consultation.
Get in touch
Speak to one of our experience legal team, and get responsive, clear, and straightforward legal advice and support.