Do You Have Grounds For A Divorce?

Divorce Scotland Act 1976

The Divorce (Scotland) Act 1976 allows for divorce when a marriage is deemed to have “broken down irretrievably.” However, specific conditions must be met to obtain a divorce. The Court cannot determine that a marriage has irretrievably broken down unless the reasons align with the four grounds for divorce outlined in the 1976 Act. These grounds serve as the legal basis for granting a divorce, ensuring that divorces are granted only in situations where the marriage has truly reached an irretrievable breakdown.

What are the grounds for divorce?

The following reasons are grounds for divorce are:-

• Committed Adultery – Adultery refers to the act of engaging in a sexual relationship with someone of the opposite sex, other than one’s spouse while still married. It involves a breach of the marital commitment and is often considered a form of infidelity.

  Importantly, you cannot petition for divorce on the grounds of your own adultery. Your spouse could divorce you on these grounds or you will need to use one of the other grounds for divorce. However, you can’t cite adultery on your divorce petition if you continue living with your spouse after you found out about it.

• Unreasonable behaviour – this may include but is not limited to violence, excessive drinking, neglect , lack of emotional support etc.

• Non-cohabitation for one year with the spouse’s consent ( a years separation)

• Non-cohabitation for two years without consent The ground of adultery and unreasonable behaviour are less common.

Whilst you can remain under the same roof, you must not live together as a married couple. The period of separation of the marries couple must be 2 years and unbroken (ie no reconciliation)

Many divorcing couples will obtain a divorce on the grounds that they have separated and have not lived together for either one year or two years. Divorce proceedings on the grounds of unreasonable behaviour petition can be pled in special circumstances.

Unreasonable behaviour

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 unreasonable behavior 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 behavior.

However, it is important to note that the specified time frame delineated by this requirement aims to establish a clear connection between the cited behavior as unreasonable and its manifestation within the timeline of the marital relationship.

This criterion thereby serves to define the specific parameters for what qualifies as grounds for legal action within the applicable framework.

In legal terms, it’s crucial to highlight the absence of explicit requirements mandating the separation of parties. This implies that behavior can be labeled as unreasonable behaviour even if cohabitation persists.

Take, for instance, a situation where one continues living with a violent spouse after an assault; it doesn’t automatically justify or rationalize their behavior.

The key takeaway here is that the assessment of reasonableness transcends living arrangements, focusing more on the inherent nature of actions within the context of the applicable legal framework.

Divorce proceedings

In the context of divorce with mutual consent, a key requirement is a continuous period of non – cohabitation for one-year.

Resuming living together for less than six months doesn’t break the original non-cohabitation, but it also doesn’t count towards fulfilling the one-year prerequisite.

This legal detail underscores the precision in meeting the criteria for a mutually consensual divorce.

In simpler terms, if you reunite with your partner for three months and later realise it was a mistake, those three months won’t interrupt the original non-cohabitation time, nor will they contribute to it. It’s important to note that even with consent, it can be withdrawn anytime before the divorce .

In cases where your spouse doesn’t consent to a divorce, it doesn’t preclude the possibility of divorce; instead, you’ll need to wait two years before initiating the divorce process.

Contact Us

If you think your relationship may be coming to an end and you need specialist advice and help, our family lawyers can help you.

Of course, we understand that making contact with a Solicitor is a difficult step to take and you may be at a point where no decisions have been made.

However, we regularly provide legal advice to individuals who have not separated, but wish to be aware of their rights and obligations in the event of a potential separation.

At Jones Whyte we are fully aware that everybody’s circumstances are unique to them and we pride ourselves in the manner in which we guide individuals through separation