In Scotland, the legal process of divorce is regulated by the Divorce (Scotland) Act 1976, a cornerstone legislation that outlines the various procedures one must follow when seeking to end a marriage. This guide aims to shed light on the Simplified Divorce Procedure, also known as the DIY divorce, and the Ordinary Divorce Procedure, ensuring that you understand the intricacies and legal nuances involved in the dissolution of a marriage under Scottish law.
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The Simplified Divorce Procedure offers a streamlined and cost-effective option for couples who meet specific criteria. To qualify, both parties must have been separated for more than one year, and mutual consent to the divorce is essential. Alternatively, if the separation has lasted for more than two years, the consent of the spouse is not a prerequisite.
In addition, this procedure applies only to couples without children under the age of 16 and where there are no financial matters to be resolved, such as the division of property or pensions. The process involves completing an application form and submitting it to the sheriff court, with a court fee.
For those who do not meet the conditions for a Simplified Divorce, the Ordinary Divorce Procedure becomes the route to navigate. This procedure is notably more complex than its simplified counterpart, and the court fee for this procedure is typically higher. This method involves establishing one of the grounds for divorce as stipulated by the law:
1. Adultery
2. Unreasonable behaviour
3. Non-cohabitation for one year (with consent)
4. Non-cohabitation for two years (without consent)
Adultery is a recognised ground for divorce. Adultery is defined as voluntary sexual intercourse between a married person and a person who is not their spouse. To establish adultery as grounds for divorce, it is essential to provide evidence that the adulterous act occurred.
The party filing for divorce (the pursuer) must prove that their spouse committed adultery, leading to the irretrievable breakdown of the marriage. While adultery can be a compelling reason for divorce, it's important to approach this legal avenue with care, as the burden of proof lies with the pursuer.
Another ground for divorce in Scotland is unreasonable behaviour. This encompasses a range of behaviours that make it intolerable for the spouses to continue living together. These behaviours can include verbal or physical abuse, addiction issues, financial irresponsibility, or any conduct that seriously undermines the marital relationship.
The pursuer must present a detailed account of the unreasonable behaviour when filing for divorce. The court assesses the severity and impact of the behaviour to determine whether it justifies the irretrievable breakdown of the marriage.
Couples who have lived separately for a continuous period of one year, with the consent of both parties, may seek divorce on the grounds of non-cohabitation. This option provides a more amicable pathway for couples who have mutually agreed that their marriage has broken down irretrievably. Consent from both parties signifies a shared understanding that their separation is conducive to a healthier resolution. The pursuer must submit evidence to the court that they have lived apart for the specified duration and that both parties consent to the divorce.
For couples who have been living apart for a continuous period of two years without the need for mutual consent, non-cohabitation serves as grounds for divorce in Scotland. Unlike the one-year separation with consent, this option does not require agreement from both parties. Instead, it relies on the fact that a two-year separation, without reconciliation attempts, demonstrates a sufficient breakdown in the marriage. The pursuer must provide evidence of the extended separation period when filing for divorce, and the court will scrutinise the timeline to ensure compliance with the legal requirements.
Navigating the legal landscape of divorce in Scotland requires a clear understanding of the procedures and criteria set forth by the Divorce (Scotland) Act 1976. Whether opting for the Simplified Divorce Procedure or the more complex Ordinary Divorce Procedure, it is crucial to approach the process with diligence and, if necessary, seek the guidance of a qualified solicitor to ensure compliance with Scottish law. By arming yourself with the right information and resources, you can navigate the complexities of divorce proceedings and move forward with confidence into the next chapter of your life.
Thompson Family Law Solicitors is a modern solicitors practice based in Glasgow, with an office in Coatbridge, servicing the whole of Scotland from the Highlands and Islands to the Scottish Borders. We pride ourselves on operating a modern way of working, including an entirely paperless office.
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