If your marriage has broken down irretrievably and there is no prospect of a reconciliation, you may be thinking about getting a divorce. In order to get a divorce, you must prove that there is an irretrievable breakdown of your marriage. An irretrievable breakdown of marriage can be proved when:-
- You both agree to the divorce and you have lived separately for at least a period of one year.
- You do not receive consent to the divorce from your spouse however you have lived separately for a period of two years.
- There is adultery.
- There is unreasonable behaviour.
In Scotland there are two different types of divorces, the Simplified Procedure and the Ordinary Procedure.
The Simplified Procedure can also be known as the “quickie DIY divorce”. This procedure can be used if the following apply to your specific case:-
- No children under the age of sixteen are involved.
- There are no financial matters.
- You have separated for a period of one year and you both agree.
- You have lived separately for a period of two years and you do not have the consent of your partner.
- No religious impediment to remarry exists.
- There is no indication of mental illness and impairment that would make either party unable to manage their affairs.
Remember, if you go through a Simplified Divorce and it is granted, a claim for financial provision cannot be challenged. You also need to meet the requirements in relation to residency to use the Simplified Procedure in Scotland. You can find out more information about residency on the Scottish Courts and Tribunals Website.
The Ordinary Procedure will begin with a document called an “Initial Writ”. This will be lodged in court by the party looking to commence the divorce. The other party will then have twenty-one days to decide whether they wish to object to the application, whether they wish to make a financial claim or whether they seek any Order concerning any children from the marriage. If the other party agrees with the divorce and what to do with any children, money and property then the case is known as undefended. If the other party objects, the case will be recognised as a defended action. In an undefended Divorce Procedure, the court will look at the paperwork that has been sent. Affidavits (sworn statements) will require to be prepared. These statements will provide information in respect of any children and state the basis for the divorce. If the court is happy with the Affidavits, a Decree of Divorce will be granted.
In a defended divorce action the Defender will have to request alternative Orders to the court after they receive the Initial Writ. There is then likely to be a court hearing in front of a Judge to decide whether the marriage has broken down irretrievably or not. If the court agrees to grant the divorce, it will issue a Divorce Certificate called an Extract Decree of Divorce.
Many people ask the question of how long it takes for a divorce and the cost. The cost of an undefended divorce can be slightly less than a defended divorce. At Jones Whyte we can offer a fixed fee for both as well as the simplified divorce, allowing you peace of mind that your costs won’t spiral out of control. Unfortunately there is no guaranteed timescale in respect of how long a divorce will take as this will really depend on your case and what is involved with the divorce. A Simplified or undefended divorce where the court are not asked to consider financial issues or child arrangements, will typically take around six weeks. An Ordinary Procedure on the other hand, can be up to twelve weeks for the court to grant the Decree of Divorce. Where there are children finances or property in dispute, the divorce is likely to take significantly more time.
For information and advice on any family law related matter, please contact our specialist divorce solicitors, Amerdeep Dhami, Cameron Shaw, Chloe Barr and Amina Amin, by telephone on 0141 375 1222 or by completing our online contact form.
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