Divorce in Scotland is regulated by the Divorce (Scotland) Act 1976, however the original Act has been amended from time to time to make it fit for purpose in an ever-changing society. The most common ground for divorce is the ‘irretrievable breakdown of marriage.’ This can be established in one of four ways:
- Adultery
- Unreasonable behaviour
- Separation for one year with the consent of the other party
- Separation for two years, where no consent is required
Adultery involves a sexual relationship with someone of the opposite sex. A physical relationship with someone of the same sex would not be categorised as adultery but would be deemed as unreasonable behaviour. Unreasonable behaviour is broadly defined as behaviour such that a person cannot reasonably be expected to continue in the relationship. It can cover anything from domestic abuse to emotional neglect, with other examples being drug and/or alcohol abuse. In relation to the time-based grounds, separation may be established even if you and your spouse/partner continue to live in the same home but are effectively leading separate lives.
The Marriage and Civil Partnership (Scotland) Act 2014 amended the law by making provision for same sex marriages. Interestingly, the Act specifies that adultery has the same meaning as in a heterosexual marriage, and therefore adultery can only be established by a sexual relationship with someone of the opposite sex! Infidelity with someone from the same sex will however be deemed as unreasonable behaviour.
If you have sufficient evidence to establish irretrievable breakdown of marriage, and subject to rules on jurisdiction, you can apply to the court for a divorce. But what procedure is involved? There are two types of divorce action – Simplified Procedure and Ordinary Procedure.
Simplified Procedure
If you are looking for a ‘quickie divorce’, then a simplified divorce might be the option for you. You do not necessarily require a solicitor to proceed by this method, however, legal advice is recommended.
There are certain criteria for use of this method as follows:
- You have been separated for one year and your spouse/partner consents to the divorce, or you have been separated for two years (no consent required).
- There are no children of the marriage/partnership under the age of 16.
- There are no outstanding financial matters.
The procedure involves completing and submitting a relatively straightforward application form, along with your marriage certificate and an admin fee. However, before submitting the application to your local Sheriff Court you must swear an affidavit (a sworn statement) before a Notary Public, Justice of the Peace or a Commissioner of Oaths to verify that the information on the form is accurate. Most of the solicitors at our firm are Notaries and the form can therefore be completed in our office. If that is the extent of our involvement, we do not necessarily charge a fee, but we may suggest that you make a donation to our local charity of choice.
The Sheriff Clerk will intimate the application to your spouse/partner upon receipt of the application. This allows them the opportunity to object. The Simplified Procedure is for uncontested divorces only. In the event of an objection, the procedure will stop. Assuming there are no complications with service, divorce is normally granted within around 6 weeks.
Ordinary Procedure
If there are children under 16 or if you need financial orders, you must use the Ordinary Procedure for divorce. In theory, this could be done without legal representation, however it is not advisable.
The procedure begins with the drafting of a formal document, known as an Initial Writ, stating the basis of the irretrievable breakdown of the marriage/civil partnership. A copy will be sent to your spouse/partner who then has 21 days to seek independent legal advice and consider a response.
In the absence of opposition, the action will proceed as undefended. This involves lodging affidavits (sworn statements) to establish the facts surrounding the breakdown of the marriage. In cases involving children under the age of 16, the sheriff must also be satisfied that there are adequate arrangements in place and the affidavits should address the welfare of the children – including care arrangements, schooling and hobbies and interests.
The court will also insist on a supporting affidavit to corroborate the basis of your separation and the wellbeing of any children. This witness can be a friend or relative but not your spouse or civil partner. Divorce is one of few areas of civil procedure where corroboration is required.
Like the Simplified Procedure there are admin fees to be paid to the court, known as warrant dues and an affidavit fee. In terms of timescales an undefended action can take as little as 6 weeks but defended actions take much longer, and in many cases, a year or so.
If you wish to raise an action for divorce, either under the Simplified Procedure or the Ordinary Procedure, or if you have had an action for divorce served upon you, please contact me (melissaw@patten.co.uk) or our court partner, Ken Caldwell (kenc@patten.co.uk) and we will be able to assist.
