Divorce in Scotland – A Simple Guide

Divorce is the legal process of ending a marriage or civil partnership. If you find yourself considering divorce in Scotland, it’s essential to understand the steps involved. This simple guide aims to provide an overview of the divorce process outlining key stages and important considerations.

Grounds for Divorce

There is a ‘no fault’ principle in Scotland, which means that no matter what the ground for divorce is, neither party will be penalised financially for their behaviour.

There are only two grounds you can use for divorce. The most common is if you can establish that the marriage has broken down irretrievably.  

There are four different ways you can show this irretrievable breakdown:

1. You have been separated from your spouse for one year and your spouse is prepared to consent.
2. You have been separated from your spouse for two years. You can then go ahead with a divorce without your spouse’s consent.
3. You are able to prove your spouse has committed adultery. You can then apply for a divorce immediately. However, if you have known that your spouse has committed adultery and you continue to live with them whilst putting up with the situation, it may be argued that you have condoned the adultery and you may not then be able to proceed with a divorce on that ground.
4. You can establish that your spouse’s behaviour is such that you cannot reasonably be expected to continue to live with them – this is referred to as ‘unreasonable behaviour’.  You can then apply for a divorce immediately. You would have to provide evidence from someone else to confirm the position. Unreasonable behaviour does not necessarily mean just physical abuse. It can also cover issues such as alcohol or drug abuse or gambling, as well as emotional abuse.

The other ground for applying for divorce is where an interim gender recognition certificate has been issued to one of the parties in terms of the Gender Recognition Act 2004.

Our team can advise you whether you have grounds to apply for a divorce.

In Scotland, there are primarily two types of divorce procedures: the Ordinary Divorce Procedure and the Simplified Divorce Procedure. These procedures have different requirements and are applicable in different situations. Let’s explore each type in more detail.

Ordinary Divorce Proceedings

The Ordinary Divorce Procedure is the standard process for obtaining a divorce in Scotland. It applies to most divorce cases where the couple does not meet the specific criteria for the Simplified Divorce Procedure or when there remain disputes over financial matters or child-related issues.

Initiating the Divorce: The divorce process begins by filing a divorce application at the relevant Sheriff Court. The Pursuer is the spouse who initiates the divorce, by completing the Initial Writ for lodging at court, providing personal details, marriage information, and the chosen ground for divorce.

Serving the Divorce Papers: Once the Initial Writ is lodged with the court, a copy of it must be served on the other spouse, referred to as the Defender. The court will provide instructions on how to serve the divorce papers, which may involve using a Sheriff Officer or a Solicitor.

Responding to the Divorce Petition: The Defender has a specific period, typically 21 days, to respond. They can choose to defend the divorce if they disagree with the grounds stated or can opt not to respond, which can then be treated as deemed consent to the divorce.

Affidavit of Evidence: If the Defender chooses not to defend the divorce, the Pursuer must submit an Affidavit giving evidence to the court as to the basis of the application.  This sworn statement provides supporting evidence for the grounds of divorce as stated in the petition.

Court Decision and Decree of Divorce: After reviewing the Initial Writ and any supporting evidence, the court will make a decision regarding the divorce. If satisfied, the court will grant a Decree of Divorce, officially ending the marriage or civil partnership. The decree is issued by the court and marks the legal conclusion of the relationship.

Financial Settlement and Child Arrangements: It’s important to note that divorce in Scotland does not automatically address financial settlements or child-related matters. If there are financial assets or children involved, these issues must be resolved separately through negotiation, mediation, or, if necessary, by seeking an order of court. 

The Simplified Divorce Procedure

The Simplified Divorce Procedure is only available to couples who meet specific criteria, there cannot be any unresolved disputes over financial matters or indeed any children under 16 years of age. This procedure offers a more straightforward and cost-effective way to obtain a divorce.

To begin the Simplified Divorce Procedure: The Applicant (the spouse initiating the divorce) completes the Simplified Divorce Application Form, available from the local sheriff court or online via the Scottish Courts and Tribunal Website.

If you are seeking divorce on the basis of 1 year’s non-cohabitation, then you will require the consent of the other spouse.  As such, the application form will need to be made available to them, with their written consent to divorce sought and their signature obtained.  That partially completed application form thereafter requires to be returned to you for you to finalise and have notarised by a Notary Public or Justice of the Peace before thereafter lodging the form at court for processing along with the appropriate fee.  The court will consider the application and whether divorce should then be granted; generally speaking applications are usually granted unless the court deems that further information or clarification is required.

If you are seeking divorce on the basis of 2 year’s non-cohabitation, you do not require the consent of the other spouse and will have to use a slightly different application form to that of a divorce on the basis of 1 year’s non-cohabitation.  Again, you will be asked to confirm that there are no financial orders sought or children of the marriage under 16 years of age.  The application form will then require to be finalised before a Notary Public or Justice of the Peace before being lodged at court along with the appropriate fee.  The court will then process the application, taking steps to serve the application upon the other spouse. 

Response by the Respondent: Once service of the application has been effected against the other spouse, they will have 21 days within which to confirm to the court whether they wish to oppose the application. 

In the event that there is no such defence to the action, then the court will consider the application and whether divorce should then be granted; generally speaking applications are usually granted unless the court deems that further information or clarification is required.  That said, in the event that the other spouse respondent contests the divorce or disputes any matters within your application, then further examination of the facts will be necessary and the case may require to be transferred to the ordinary divorce procedure.

Conclusion

Divorce in Scotland follows a specific process to ensure that there is a proper, legal and formal end of a marriage or civil partnership. Understanding the steps involved, such as lodging the application, serving the divorce papers, and providing evidence in support of the orders sought, can help you navigate through the process far quicker and more effectively than might otherwise be the case.  

It is therefore advisable to seek the assistance of a solicitor specialising in family law to guide you through the processes, advise you on any complexities whilst safeguarding your rights during the divorce proceedings.

Please note that this article is only intended to provide a general overview of the divorce process in Scotland, it may not cover all possible scenarios and is no substitute for full and proper legal advice. Consulting with a solicitor for personalised advice based on your specific circumstances is therefore strongly recommended.

If you are thinking of Divorce and are looking for an experienced solicitor, would like to discuss matters or gain a greater understanding of any element of the process then please contact our experienced Family Law Team on 01324 622 888 or contact help@randa-fa.co.uk and we would be delighted to assist.