A question we are continually faced with in family law, when someone has taken the step to come and speak to us after the breakdown of their marriage, is “how quickly can I get divorced”?
This question is not always straightforward to answer, and can revolve around many facts, such as; Do you have children under the age of 16?, How long have you been separated for?, Have financial matters between you and your spouse been resolved? amongst others.
This blog will consider grounds for divorce in Scotland, and then go on to look at the mechanism for these in a little more detail. It covers the simplified divorce and ordinary divorce routes, and what the divorce process typically involves at each stage.
Subsequent blogs will take these separate options and look at them in more depth and what may be involved in each from a practical, and legislative or legal perspective.
Under Scots Law divorce can only be granted if the Court are satisfied that a marriage has broken down irretrievably. This is the only ground for divorce, however, there are 4 manners in which that one ground can be established.
The four ways to establish irretrievable breakdown
The Divorce (Scotland) Act 1976 separates the establishment of an irretrievable breakdown into four categories, two of which allow an immediate application to the Court for divorce, and a further two which are usually less contentious, but do not provide an immediate avenue.
Adultery and Unreasonable Behaviour: Immediate Divorce Proceedings
The two categories above for applying for divorce immediately in Scotland are either on the basis of adultery, or on the basis of unreasonable behaviour, the former being self-explanatory, whilst the latter seems somewhat vague.
This vagueness is entirely intentional in the legislation as it allows a wide gambit of behaviours to be considered so unreasonable that you could not be expected to remain married to your spouse. For example, this could be because of an abusive partner (either physically or emotionally), a partner with addiction issues of any sort, for example; drugs, alcohol, gambling. It could be a controlling and coercive spouse, or one who has acted in a reprehensible way financially. These could all be considered unreasonable behaviours.
For the purpose of this blog, we are going to consider a much less contentious scenario.
Simplified Divorce in Scotland: No Children Under 16, Finances Agreed
Let’s assume that you have no children under the age of 16, and that when you separated from your partner you were able to agree on how to split your finances.
This is essentially the point we are looking to get parties to when they come in to see us in the first instance if at all possible, and we would do this by negotiating a minute of agreement between parties that deals with any outstanding financial matters they may have.
So, in this “Goldielocks” scenario where everything is just right, what options are open to clients?
It depends on the amount of time that has passed since they separated. The law is specifically designed to prevent people rushing into divorce (unless in the unreasonable behaviour, or adultery scenarios) as it is an attempt to preserve the idea of the sanctity of marriage, and that that commitment shouldn’t be something entered into lightly, or disposed of too easily.
The Simplified Divorce Procedure: One Year’s Separation
With agreed finance, and no children under the age of 16, then the solution here, if the parties have been separated for at least 1 year is what is called a Simplified Divorce. This is a paperwork exercise, and as the name suggests, is the simplest way of getting divorced.
If parties have been separated for 1 year, and both agree to the divorce, then this is a process whereby various forms are filled out by the parties and sent to the Court for consideration, along with a copy of the parties’ marriage certificate (although clients will often get their solicitor to fill out the paperwork to ensure everything is correct first time). If everything progresses smoothly, and parties are prompt in completing the paperwork when requested, then this process could be completed in under 3 months from their first visit to the office, to a decree of divorce being issued. The reality is that most of the waiting time is for the Court to process the relevant paperwork, and how long this takes can vary from Court to Court.
What if One Party Does Not Consent? Two Years’ Separation
If it is the case that one party is not willing to accept the divorce after one year, then this does not prevent the divorce ever taking place, however a longer wait is required. After two years of separation, you can apply for a Simplified Divorce in a largely similar manner, whether your spouse consents or not.
Ordinary Divorce Procedure: Children Under 16 Involved
Let’s consider now a situation where again, finances are dealt with between parties, but this time there are children under the age of 16. The parents have been able to discuss what will happen with regards to where the children are to spend their time, and reach an agreement on that, which is in the best interests of the children.
The grounds for divorce here remain the same, and those are after one year of separation if the spouses agree to progress the divorce, or after two years if one spouse is refusing to consent.
The divorce process here is a little more involved however, and that is because the Courts have to take into consideration the wellbeing of the children involved, and they have to consider evidence on that.
This does not, however, mean appearing before a Sheriff and giving evidence “live” in Court, and instead that evidence is presented to the Court in the form of sworn written statements, called affidavits.
Raising the Initial Writ and Divorce Proceedings
The first step is a document called a writ being sent to the Court. This sets out the position of the party seeking divorce, confirming that financial matters are settled between the parties, and that agreement has been reached regarding where the children are to spend their time.
The Court then give permission for the other spouse (the Defender) to be made aware of the divorce application, in the form of a Warrant of Citation. Assuming the other spouse does not wish to contest the divorce, then affidavits are then taken and presented to the Court, along with marriage and birth certificates, and a Sheriff will then consider this paperwork and decide whether to grant a divorce. This process is naturally more involved, and therefore takes a little more time, however around the four to five month mark is probably realistic in this scenario.
Outstanding Financial Matters: A Critical Warning
It is important to note at this point that you have to be absolutely sure that there are no financial matters outstanding between you both, as at the point that divorce is granted, the ability to make matrimonial claims relating to finance is lost. We would always advise a consultation with a solicitor to make sure you know what you could potentially be entitled to claim.
In upcoming blogs we will look in a little more depth at divorce on the grounds of adultery and unreasonable behaviour, and what that process may entail. We will also consider in a little more depth what sort of information the Courts may be looking for in an application for ordinary divorce mentioned above.
Steven Bain is an Associate Solicitor in the Family Law team at Jones Whyte, accredited as a Trauma-Aware solicitor by the Law Society of Scotland. He advises clients on a range of Family Law matters including divorce, separation, prenuptial agreements and issues involving children. Steven can be contacted via joneswhyte.co.uk
Speak to our family law team
The key is, always speak with a solicitor before you take the step to apply for your divorce to make sure everything you need is in place, and that no matters remain outstanding, and we are more than happy to advise on that.
Our family lawyers are here to help you understand your options and guide you through every stage of the divorce process, tailored to your circumstances. We help all kinds of clients, whether your situation is straightforward or more complex, and can advise across both simplified and ordinary divorce procedure throughout Scotland, with offices in Glasgow and Edinburgh, and remote consultations also being available.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
