Dissolving the marriage
Choosing the correct procedure
In Scotland there are TWO divorce procedures, the Simplified procedure, and the Ordinary procedure. You can only use the Simplified procedure if
- there are NO children from the marriage under the age of 16 years. (this also includes any step-children or adopted children)
- you are only divorcing on the grounds of 12 months or 24 months separation (non-cohabitation)
If you are seeking a “fault” based divorce (i.e. Unreasonable behaviour or Adultery) or have children under the age of 16 years then you are required to use the Ordinary procedure.
To apply for a divorce under this procedure the applicant will have to fill in a form giving the reason for the divorce and information to support it. If the ground for divorce is a one year separation with the agreement of the other party, Form SPA is used and the applicant will have to get the other party to sign a consent form. Form SPB is used if the ground for divorce is two years without agreement.
The applicant must swear that the facts stated on the form are correct before a Notary Public or a Justice of the Peace who will sign the form, free of charge. The completed form, the marriage certificate and a fee is returned to the local sheriff court or Court of Session. The court will send a copy of the application for divorce to the other party. The other party then has time to object to the divorce. As mentioned above, if he or she does object then the simplified procedure cannot go ahead.
If the other party does not object to the divorce, the court will consider the application and let both parties know the result. If the application is successful the court will grant a ‘decree of divorce’ The whole process usually takes about eight weeks.
Grounds for divorce
you and your spouse / civil partner must have lived apart:
either: for at least one year and your civil partner consents to the divorce in writing.
Or: for at least two years.
This period must be completed before the application is made and must be without a break. There is only one exception; if during the separation period you have lived together temporarily for not more than six months in all, in a final attempt to make the marriage / civil partnership work, you may still be eligible to apply for a divorce / dissolution of civil partnership under the simplified procedure.
For example, if during the separation period you have attempted a reconciliation for five months then you must wait:
either: for at least one year and five months from the date of the original separation (and obtain the consent of your husband or wife).
Or: for at least two years and five months from the date of the original separation before applying for a divorce/ dissolution of civil partnership.
Unreasonable Behaviour – A court may grant a divorce if you or your partner has behaved so badly that the other can no longer bear living together. Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things like dominating a partner, not letting the partner leave the house or speak to neighbours and friends or refusing to pay for housekeeping.
If one of you doesn’t agree to the divorce, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence.
Adultery – A court may grant a divorce if one of you has had a sexual relationship with someone else of the opposite sex (committed adultery). 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 court will only grant the divorce if it is satisfied that the marriage has irretrievably broken down and the other partner could no longer live with the partner who has committed adultery. There is no minimum period that you have to be married before a divorce action based on adultery may be started.
If you both agree to the divorce, the court will usually only need statements and details of the adulterous sexual relationship. If one of you doesn’t agree to the divorce, proof will be necessary and this may be difficult and expensive to get.
Applying for a Divorce
The partner who is applying for the divorce is called the pursuer. The other partner is the defender. You will need to write a Statement detailing the irretrievable breakdown of the marriage, and on which grounds you are seeking a divorce -and also a Statement detailing the arrangements for the children. Please note 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.
The action begins with the solicitor for the pursuer drafting the summons (Court of Session) or initial writ (sheriff court). This is a formal document stating all the facts which is sent to the court. A copy is sent to the defender who then has 21 days to seek legal advice and consider their response. When adultery is being used as a ground for divorce, a copy is also sent to the third person involved if he or she is named in the summons or initial writ.
Where both parties are in agreement the action proceeds as an undefended divorce. Sworn statements are usually provided by the divorce applicant and the solicitor submits the statements to the court.
The judge examines the case in private and the divorce decree will then be granted unless the court requires further information.
The defender may decide to defend the action, either because they object to the divorce itself, or because they dispute some aspect of the future arrangements for the care of any children, the proposed financial provision on divorce or both of these matters. If during the process defended actions are settled by agreement a Joint Minute of Agreement/Separation Agreement can be drawn up.
Where a divorce is defended in the sheriff court the next stage is an Options Hearing. This is intended to give parties a chance to meet before the sheriff in order to ascertain if agreement can be reached without proceeding to a full proof (see below) or, if this is not possible, to focus the precise disagreement between parties.
If the matters at issue are not resolved the case proceeds to a ‘proof.’ A proof is a full court hearing where evidence is given by witnesses in proceedings open court. It can be reported by the media, subject to certain restrictions aimed at protecting ‘public morals’ and children.
The court may also refer the dispute to a mediator accredited to a specified family mediation organisation at any stage in the proceedings.
Decree of Divorce
If the grounds of the divorce action are proven, the court will grant a decree of divorce. Please note that there is only one decree under Scottish Law.
(C) Ruth Langford