Going through a divorce can be a painful and emotional time for all those involved, especially when there are children. At James & George Collie, our family law solicitors understand how difficult the adjustment can be on a family and are here to answer your questions about the divorce process in Scotland. We will explain all of the steps which lead to your separation in a jargon-free manner, providing you with the necessary support during this sensitive time.
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Getting divorced in Scotland
If you are looking to legally end your marriage, you will have to apply to the court for a divorce. The person applying for the divorce is known as the pursuer, while the party who receives the request for divorce is referred to as the defender.
There are two different procedures in Scotland for getting divorced:
- The Simplified (DIY) Procedure
- The Ordinary Procedure (undefended and defended)
The application for divorce is considered undefended when both parties can agree on all issues arising from the separation. This makes the divorce process more straightforward as you don’t have to go to court to provide evidence. However, when the pursuer and defender cannot reach an amicable agreement, you may have to raise a court action for the court to resolve the issues as part of the divorce proceedings. This can be a time-consuming and costly process with representation from a qualified lawyer essential for both parties.
What are the grounds for divorce?
In Scotland, you have to prove that your marriage has irretrievably broken down. There are four ways to prove this:
- You have been separated for one year, and your partner consents to the divorce
- You do not have your spouse’s consent, but have been apart for two years
- You can prove your spouse committed adultery
- You cannot reasonably be expected to live with your spouse because of their behaviour, commonly known as ‘unreasonable behaviour’
The other ground for applying for divorce is where an interim gender recognition certificate has been issued to one of the parties.
Is it better to settle divorce out of court?
There will be inevitable tensions between both parties during the divorce process, which can make positive communication feel impossible. Anger and hostility towards your partner can cloud your judgement on significant decisions such as child arrangements. Our family law solicitors aim to avoid court wherever possible, with different methods of dispute resolution available for those who wish to work things out amicably:
A less formal process than going to court where each party will work with a trained lawyer. Both you and your partner will meet with your respective lawyers to try and reach a mutually agreed solution. Over several meetings, both parties will be expected to be open and honest as the collaborative approach is built on trust. If all goes well, the result is a binding agreement which suits all parties, allowing both to move on with their life.
A trained mediator acts as an impartial party who will facilitate an open discussion between both parties. They will provide you with your legal options and stay neutral throughout in the hope to reach an agreement that suits both. This can save you time and money, avoiding court where decisions about your future are determined by strangers.
The negotiation process is intended to allow you and your partner to discuss matters arising from your separation. The meetings can be face-to-face, however, if you don’t want direct communication with your partner, you can instruct a solicitor to negotiate your position on your behalf. The negotiation process will hopefully lead to an agreement which will be in writing and signed by both parties.
If your query hasn’t been answered by the above information, please read our top five frequently asked questions about divorce in Scotland here, or if you’re unsure about how the process works, we have a detailed guide you can access here.