Family & Matrimonial

Divorce

While people talk about getting divorced, in reality that is often the most straightforward part of the separation process.

There are two methods of obtaining a divorce or dissolution of a civil partnership in Scotland:

The simplified procedure; or
The ordinary procedure.

In order to raise a divorce or dissolution of a civil partnership you must have the legal grounds to do so. In Scotland there are two grounds for divorce or the dissolution of a civil partnership:

recognised gender change of either party; and
irretrievable breakdown of the marriage.

A recognised gender change is established if either party is issued with an interim gender recognition certification under the Gender Recognition Act 2004. Irretrievable breakdown is established if one of four situations (in the case of divorces) or one of three situations (in the case of dissolutions of civil partnerships) can be established. These situations are as follows:

adultery (only available for actions of divorce);
unreasonable behaviour;
non cohabitation for one year with the defender’s consent;
non cohabitation for two years.

If you do not have sufficient grounds to raise an action of divorce or dissolution, you cannot get divorced or have your partnership dissolved, but you may be able to negotiate with your spouse or civil partner with a view to preparing an agreement called “a separation agreement” or “minute of agreement”.

You must also raise the action of divorce or dissolution in a court having jurisdiction. Usually the action is raised in the sheriff court closest to where you live. The rules relating to jurisdiction can be complex and if you have difficulties with this question, it may be useful to see a solicitor. It is also possible to raise an action of divorce in the Court of Session if the issues are complicated or there are a lot of assets to be shared.

Generally, the simplified procedure can only be used for divorces when all the children of the marriage are over 16 years of age and there are no financial claims to be dealt with.

In all other cases the ordinary procedure must be used.

Dealing with the simplified divorce or dissolution procedure

This is also known as obtaining a “quickie divorce” or “a DIY divorce”. You don’t have to use a solicitor, although you will require a solicitor to “notarise” the affidavit on the application form.

You can obtain the forms from your local sheriff court or from the Scottish Courts website at www.scotcourts.gov.uk. The forms come with their own guidance notes. There are different forms depending on whether you are seeking a divorce on the grounds of one year’s separation with the consent of your spouse, or alternatively on two years’ separation.

Once you have completed the forms, take them to a solicitor who will swear or “notarise” the affidavit. Then lodge the application with the sheriff clerk at your local sheriff court together with an extract of your marriage or civil partnership certificate. The sheriff clerk will help you serve the forms on your spouse or civil partner. The process takes about two months to complete. The decree of divorce or dissolution of civil partnership should be sent direct to you by the sheriff clerk.

If at any stage your spouse or civil partner objects to your application or intimates that they wish to make a financial claim against you, your application for a simplified divorce or dissolution will not proceed. If that happens and you wish to obtain a divorce or dissolution, you will have to raise a divorce or dissolution using the ordinary procedure.

You may find it very helpful to see a solicitor before raising a simplified divorce action, to get some advice about any possible claims you may have; the solicitor will also be able to give you advice as to whether you have sufficient grounds to raise the action and the evidence which is needed.

Once you are divorced you lose the right to make financial claims against your spouse or civil partner. Therefore it is vitally important that you know what claims you may have before you get divorced.

The ordinary procedure

If you cannot use the simplified procedure, you must use the ordinary procedure. You can do this yourself but it is not recommended.

The divorce action is started by an initial writ. This contains written “pleadings” (the details of your case). It lets the court know what you are asking for, and gives details of the reasons why you are seeking a divorce. It can also ask the court for a variety of other things or orders such as:

The children of the marriage to reside with you or have contact with you.
The house to be transferred into your name, or sold and the proceeds shared
Your spouse or civil partner makes monthly payments to you, called “aliment”
Protection for you and/or the children, the house or furnishings from your spouse or civil partner
Division of the matrimonial assets

You can also seek some of these orders on an interim basis if you require protection or some order whilst the divorce is ongoing.

The initial writ is served on your spouse or civil partner. Your spouse or civil partner will then have 21 days from the date of service to tell the court whether they intend to defend the action.

Undefended actions of divorce or dissolution

If your action is not defended, after a period of 21 days has elapsed from service you can ask the court to grant your divorce or dissolution together with any of the other orders you seek.

In order to obtain your decree of divorce your solicitor will have you and a witness sign affidavits. An affidavit is a sworn statement providing the sheriff with the evidence in your case. It gives details of the marriage or civil partnership, the reason for the breakdown of the relationship, and details of the care arrangements for the children.

The sheriff must be satisfied with the arrangements for the children. If the sheriff is satisfied with the information contained within the affidavits and the other information presented, the divorce decree will be granted.

Defended actions of divorce or dissolution

If your spouse or civil partner wishes to defend your action, the court is advised of that. A timetable is then set which directs how the case will run.

The defender can ask the court to make certain orders as well. For instance, if you have asked for the house to be transferred into your name, the defender can ask that the house is sold instead. The defender can also ask the court to grant contact in respect of children. Alternatively the defences can suggest that your case is unreasonable and that the orders you are seeking should not be granted.

The pleadings are a means by which both parties tell the court and each other what they are asking the court to do, and why. Each side gives the other fair notice of what their case is about – there is no ambushing the other side. If you or the defender have not stated something in the pleadings then it usually cannot be relied on in court.

The case may be set down for a “proof”. A proof is the civil equivalent of a criminal trial. It is at the proof that you will have to appear at court with your witnesses and give evidence. Once the sheriff has heard all the evidence at a proof, he or she will provide a written judgment shortly afterwards.

If you are asking the sheriff to make any orders in respect of children in your divorce then throughout the process there will be additional child welfare hearings. You will be expected to attend each child welfare hearing. During the court process it is open to each of the parties to continue to negotiate with one another. Rarely do court cases get to the stage of a full proof. Some time before that people will usually sort matters out with the help of their solicitors, and the divorce action is settled.

Expenses

Usually court actions are based on the rule that the loser pays. However, in family actions it can rarely be suggested there are winners or losers. In addition the court is concerned with the principle of fair sharing of the matrimonial assets. It might be unjust, in considering the fair division of the assets, if one party had to pay all the expenses. Generally speaking, therefore, each party pays their own costs. There can be exceptions to that general rule where one party has acted in a way that is deemed unreasonable. In such circumstances expenses may be awarded against that party.