Divorce in Scotland: A Simple Guide

For family solicitors, the new year normally signals a rise in the number of enquiries in connection with separations following the pressure created over the festive period.  Couples re-evaluate their lives and for many, the thought of divorce feels like the only viable next step.  Divorce is not a decision that should be taken lightly and it is important that parties take time to consider how they wish to proceed and whether they are actually in a position to raise a divorce action.

Under Scots law, there are two procedures available to parties that wish to seek a Divorce.

Simplified Divorce

Also known as the “Do it yourself” method, the most straightforward process is the simplified procedure.  The simplified procedure is only available if the parties:

• Have no children under the age of 16. This includes adopted children and children accepted into the family.
• There are no financial matters arising from the separation that have to be resolved before the divorce.

In order to qualify, one of the parties must be domiciled or habitually resident in Scotland.  The marriage must have broken down irretrievably due to the fact that the parties have lived apart:

• For 1 year and your spouse/civil partner will consent to the divorce/dissolution in writing, or
• For at least 2 years (no consent of the other party is required)

The application form to commence a simplified divorce is available from the Scottish Courts website along with a very useful guide to the process.  The application includes an affidavit which must be signed in front of a Notary Public, Commissioner of Oaths or Justice of the Peace.  The completed application is thereafter sent to the Court along with the parties marriage certificate and payment of the Court lodging fee.  The Court will then send the application to the spouse who will have a period of time to object to the application.  If no objection is lodged, the Divorce Decree will be issued.

There are procedures in place if the current address of the spouse is unknown.  It should also be noted that the simplified procedure is not available if either party suffer from mental illness, personality disorder or learning disabilities.

Ordinary cause procedure

Where the simplified procedure is not an option, a Court action must be raised seeking a divorce under the ordinary cause process.  This method is necessary if:

• There are children under the age of 16
• There are financial matters that need to be resolved

As with the simplified procedure, there must be an irretrievable breakdown of the marriage.  In Scots law, an irretrievable breakdown can be due to:

• The parties have been separated for 1 year and both consent to the action
• The parties have been separated for 2 years (no consent is necessary)
• There has been unreasonable behaviour by the other party
• There has been adultery

As expected, a Court action is more complicated and the process is commenced by lodging an Initial Writ which is sent to the Court.  If the Writ is accepted, the Court will give authority for it to be served on the other party who will be given a period of 21 days to respond.  If the party wishes to dispute the action, the Court will set a timetable of various procedural dates.  If the action is not disputed, the applicant can lodge a Minute of Decree along with Affidavits supporting the grounds of divorce.  The Sheriff will examine the documents in chambers and if they are satisfied, a Divorce Decree will be issued.

Before applying for an Ordinary divorce, it is sensible for the parties to try to reach an agreement in connection with the children and assets.  The Court will not grant a divorce unless they are satisfied that arrangements for children and assets have been agreed.

Timescales

In general, the simplified procedure is likely to take around 2 months from the point the application is lodged.  If an ordinary application is undefended, it takes around 3 to 4 months for divorce to be granted.  The timescales will however depend on how busy the Courts are and how easily the documents can be served on the spouse.

If you are considering a divorce, it is important to seek legal advice at an early stage to understand your options and make an informed decision. For further information or to discuss any of the above, contact our experienced legal team on 01721 720131 or alternatively email us on legal@blackwoodsmith.com.

As always we are Here When You Need Us.