Divorce is the legal process which brings a marriage to an end.  You can only get a divorce in Scotland by applying to the Court. This can be your local Sheriff Court or else the Court of Session in Edinburgh.  If you and your spouse reach a consensus on all the key issues arising from your separation, including the division of any finances and the care arrangements for any children under 16, then the process of applying for a divorce becomes much more straightforward.

Grounds for Divorce in Scotland

There are two grounds for divorce in Scotland. The first is that the marriage has broken down irretrievably.  This can be evidenced in one of four ways as follows:

1. Your spouse has committed adultery.
2. Your spouse has behaved unreasonably.
3. You have been separated from your spouse for a period of one year and they are willing to consent to the divorce.
4. You have been separated from your spouse for a period of two years.

The second is that you or your spouse have obtained an interim gender recognition certificate. This is relevant to those who have taken steps to change their legal gender during the marriage.

Ordinary Divorce

This is the standard way of obtaining a divorce in Scotland. The first step is to instruct a solicitor to prepare a document called an Initial Writ. This will set out the grounds upon which you wish to apply for a divorce. Your solicitor will lodge the Initial Writ at Court together with the Marriage Certificate and Birth Certificates of any children under the age of 16. The Sheriff will review the paperwork and

 grant authority for it to be served upon your spouse. 

Your solicitor will then arrange for the paperwork to be served upon your spouse by recorded delivery post or Sheriff Officer. Once the paperwork has been successfully served, this will trigger a 21-day notice period during which your spouse can oppose the action by completing and lodging a document called a Notice of Intention to Defend.  

In the absence of opposition, the action will proceed as undefended. Thereafter, your solicitor will prepare Affidavits on behalf of you and someone who knows you well such as a relative or friend.  An Affidavit is a sworn statement.

The purpose of an Affidavit is to establish the facts surrounding the breakdown of the marriage and to detail the care arrangements for any children under the age of 16. Your solicitor will submit the Affidavits to the Court once complete together with a Minute for Decree. Provided that all of the paperwork is in order, the Sheriff will grant the divorce.

Simplified Divorce

This is another way of obtaining a divorce in Scotland.  It offers a number of benefits compared to the ordinary divorce procedure. One significant advantage is the affordability of a simplified divorce.  In order to apply for a simplified divorce, you must meet certain eligibility criteria. We have provided examples of the eligibility criteria below:

1. You must apply for a divorce on the basis that (a) the marriage has broken down irretrievably because either you and your spouse have lived apart for at least one year and your spouse is willing to consent to the divorce or (b) the marriage has broken down irretrievably because you and your spouse have lived apart for at least two years or (c) you or your spouse has been issued with an interim gender recognition certificate.
2. There must be no children of the marriage under the age of 16.
3. All financial matters must be resolved between you and your spouse.
4. Your spouse must not suffer from a mental illness, personality disorder or learning disability.

The above list is not exhaustive. It is always advisable to instruct a solicitor to check if you meet the eligibility criteria and to help guide you through the process of applying for a simplified divorce.  Provided that you meet the eligibility criteria, the next step is to complete an application form. This can be downloaded from the Scottish Courts & Tribunals Website.

There is an Affidavit appended to the application form. You must swear this in front of a Notary Public, Justice of the Peace or a Commissioner of Oaths to confirm that the information contained within the application form is accurate. 

Once the application form has been completed, your solicitor will then lodge this at Court together with the Marriage Certificate. The Sheriff will review the application form and, provided that everything is in order, will grant authority for it to be served upon your spouse. 

In terms of the next steps, the Court staff will then arrange for the application form to be served upon your spouse by recorded delivery post or Sheriff Officer.  If your spouse objects to the simplified divorce action, then this will bring the whole process to a halt.  However, if your spouse takes no action and all the paperwork is in order, then the Sheriff will grant the divorce.

Conclusion

Under Scots law, any financial claims that you have against your spouse will terminate on divorce.  It is therefore important to consult with an experienced family law solicitor prior to applying for a divorce to ensure that you understand the implications fully.

Our award-winning family law solicitors would be pleased to help you navigate this process.

Our Head of Department and Director, Judith Higson, and Senior Associate Director, Nicola Buchanan, are both Accredited Family Law Specialists, Accredited Mediators and Collaboratively Trained Solicitors. We have a wealth of experience spanning several decades to meet all your family law needs and are ably assisted by our Solicitor and author of this article, Laura Cousins, and Paralegal, Liz Semple. We can be contacted on 0141 846 0723 or info@scullionlaw.com. You can also contact us via our online enquiry form and a friendly member of our Client Care Team will get back to you as quickly as possible.

The content of this article is for information only and is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Scullion LAW accepts no responsibility for the content of any third-party website to which this article refers.