Going through relationship breakdown and divorce is tough wherever you are in the world. If you are getting a divorce in Scotland, you will need to be mindful that the process is different to other jurisdictions. Oratto can put you in touch with the right divorce lawyer, who will be able to provide you with the correct legal guidance based on your circumstances from the outset.
Unlike the divorce procedure in England & Wales, it is possible to begin a divorce or civil partnership dissolution in Scotland before being married for a full 12 months if you are pursuing a fault-based divorce (see below under Ordinary Procedure).
There are TWO divorce procedures: the simplified procedure and the ordinary procedure.
You can use the simplified procedure if you meet the following criteria:
- There are no children, or adopted children, under the age of 16 years from your marriage/civil partnership (this also includes any step-children who would normally live with you).
- You are only divorcing or dissolving a civil partnership on the grounds of 12 months or 24 months separation (non-cohabitation) or because one party has received an Interim Gender Recognition Certificate.
- There are no outstanding financial matters – for example, there are no marital assets or you have agreed the finances and have a Separation Agreement.
The Simplified Process is very straightforward and requires just one form to be completed and signed by the Pursuer (the person initiating the divorce). If consent is required because the divorce is on the grounds of 12 months separation, then the defender (the person responding to the divorce) will also need to sign a consent form. If the defender does not object to the divorce, the court will consider the application. If the application is successful, the court will grant a ‘decree of divorce'. The whole process usually takes about eight weeks.
There is only one decree of divorce in Scotland. Decree nisi and decree absolute do not exist under Scottish law.
If you are seeking a "fault-based" divorce (i.e. for unreasonable behaviour or adultery), have children under the age of 16 years or have unresolved financial matters, then you are required to use the ordinary procedure. You do not need to have been married for 12 months if using the ground of unreasonable behaviour or adultery.
You will need the expertise of a family law solicitor if you intend to divorce using the ordinary procedure as the writ, which initiates the divorce procedure, requires exact legal wording and a specific structure.
Grounds for divorce:
You and your spouse/civil partner must have lived apart for:
- at least one year and your spouse/civil partner consents to the divorce in writing, or
- at least two years, in which case consent from your spouse/civil partner isn't required.
Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things such as dominating a partner, not letting the partner leave the house or speak to neighbours and friends or refusing to pay for housekeeping.
Adultery is a consensual sexual relationship with someone of the opposite sex who is not their spouse. If you or your partner has had a sexual relationship with someone of the same sex, it is not technically adultery, but is likely to be seen as evidence of irretrievable breakdown.
The court will need details of the adultery – for example, dates and places when it happened.
The partner who is applying for the divorce/dissolution is the pursuer. The other partner is the defender.
Divorce in Scotland – the process
The divorce/dissolution begins when the pursuer's solicitor drafts either the summons (if applying to the Court of Session) or initial writ (if applying to a sheriff court). These are formal documents stating a summary of the facts. The document is then submitted to the appropriate court. A copy is then served on the defender, who must seek legal advice and deliver a response within the period of notice (21 days). In cases where adultery has been committed and is used as a ground for divorce, then the third person involved (known as the co-defender) will also receive a copy of the summons or initial writ if they've been named in it.
If you and your spouse/civil partner are unable to come to an agreement over the finances and/or child arrangements, you can include a request in your writ for the court to consider these matters at the same time.
You may be asked to write a statement detailing the irretrievable breakdown of the marriage/dissolution, and a statement detailing the arrangements for the children. These statements need to reflect the facts and should not be used as a platform for disclosing a long list of minor aggravations between you and your spouse/civil partner; bear in mind that the defender may well see part of, or the whole of, your statements. However, it is important for the courts to see that the marriage has broken down and there is no chance of reconciliation.
If you both agree to the divorce, the court will usually only need statements and details of the unreasonable behaviour or adultery, or the confirmed written consent of the defender if using one year's separation. The court will then grant the decree of divorce – an undefended ordinary procedure divorce can take around 12 weeks to complete. There is usually no need for either party to attend court.
If the defender doesn't agree and defends the divorce, you will both have to attend an Options Hearing. A sheriff will give both persons the opportunity to come to an agreement about the divorce and avoid having to move forward to a Proof Hearing.
Both parties would have to attend a Proof Hearing, which is open to the public and may be reported on by the media. The pursuer will need to show the court evidence and witnesses of the alleged behaviour or adultery – this may be difficult and expensive to obtain.
A defended divorce will take around 9 to 12 months to reach the decree stage.
If the court is satisfied that the marriage has broken down irretrievably and the evidence presented in the Proof Hearing supports this, then a decree of divorce will be granted.