Under the Divorce (Scotland) Act 1976, divorce is available if a marriage has “broken down irretrievably”. Certain conditions have to be met in order for a divorce to be granted, The Court cannot decide that a marriage has broken down irretrievably unless the reasons for the divorce fall within the four grounds specified by the 1976 Act. These grounds are:- adultery, unreasonable behaviour, non-cohabitation for one year with the spouse’s consent or non-cohabitation for two years without consent The ground of adultery and unreasonable behaviour are less common. Most people will obtain a divorce on the grounds that they have separated and have not lived together for either one year or two years. Divorce on the grounds of unreasonable behaviour can be pled in special circumstances.
The Act defines unreasonable behaviour as behaving in such a way where your spouse cannot reasonably be expected to continue living with you. This could include behaviour which endangers your spouse or amounts to such a level of “cruelty” where the health and wellbeing of your spouse is negatively affected to a great extent. This behaviour must have occurred since the date of the marriage, which means that discovering something about your spouse, such as previous criminal activity, will not necessarily amount to unreasonable behaviour. There are no specific requirements for the parties to not be living together. Essentially, this means that behaviour can be deemed unreasonable even if you are still living with your spouse. For example, you may continue living with your violent spouse after an assault, but this does not mean that their behaviour was reasonable.
There has to be no cohabitation with your spouse for a continuous period of one year if both of you consent to a divorce; however, if you resume living with your partner for any period shorter than six months this will not break the continuity of the original non-cohabitation, but it will not count towards the non-cohabitation either. In simpler terms, if you resume living with your partner for three months but decide that this was the wrong decision, those three months will not break the original time you were not living together, but they will not count towards that time either. Even if consent is given, this consent can be withdrawn at any point before the divorce. There are some occasions where your spouse may not consent to a divorce. If this is the case, it does not mean you cannot get a divorce; it just means you will have to wait two years before
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