If you are considering getting a divorce, you probably have a number of questions about the process and how it works. At James & George Collie, we have pulled together this informative guide to help assist you through your separation:
- How do you apply for a divorce in Scotland?
- What are the four grounds for divorce?
- What is the difference between a simplified and ordinary divorce?
- How much does a divorce cost and how long does it take?
- How are our assets split on divorce?
How do you apply for a divorce in Scotland?
The spouse who applies the divorce proceedings (commonly known as the pursuer) must complete and submit the divorce petition to the court. The pursuer must prove their marriage to the other party (referred to as the defender) has broken down beyond repair by stating one of the accepted grounds for divorce.
What are the four grounds for divorce?
In Scotland, you can apply for a divorce under these four grounds:
- You have been separated one year, and both parties agree with the divorce
- You do not have your partner’s consent, but have been separated for two years
- You can prove your partner has committed adultery
- Unreasonable behaviour
If one of the parties has been issued with an interim gender recognition certificate, you can also apply for a divorce on that basis.
REMEMBER: Divorce legislation in Scotland is not the same to that in England & Wales. While both allow divorce due to adultery or unreasonable behaviour, it is the ground related to the period of separation that differs. Those who live south of the border have to be separated for two years with consent, or five years without consent. Following a change in Scots law in 2006, the grounds for divorce are now one year with the consent of your partner, or two years without consent.
What is the difference between a simplified and ordinary divorce?
There are two ways to get a divorce in Scotland: the simplified procedure and the ordinary procedure. It’s important to fully understand both procedures as they vary depending on your circumstances, if there are children, and whether your partner agrees to the divorce.
Simplified divorce in Scotland
You can apply for a simplified (or DIY) divorce on the basis you have been separated for one year and have consent from your partner, or two years separation without consent. For a simplified divorce, the appropriate paperwork must be lodged with the Sheriff Court and the parties do not need to appear in court. If the defender is happy with the terms of the divorce, the court will consider the application and, if successful, the court will grant a ‘decree of divorce’. This particular procedure can be used if you meet the following criteria:
- no children under the age of 16,
- no outstanding financial matters,
- no indication of mental illness or impairment that would make either party unable to manage their affairs, or
- no religious impediment to remarry exists.
REMEMBER: If you go through with a simplified divorce and it is granted, a claim for financial provision cannot be challenged. You also need to meet the requirements relating to residency to use the simplified procedure in Scotland. You can find out more information about residency on the Scottish Courts and Tribunals website here.
Ordinary divorce procedure
If you have children under the age of 16 or unresolved financial issues, then you will be required to apply for divorce using the ordinary procedure. The pursuer will lodge a document requesting the divorce, also known as an initial writ, which will be served to the defender. The defender has a total of 21 days to respond to the request and stating whether they wish to proceed or object the divorce. The defender must also consider whether they are looking to claim for financial provision, or seek an order in relation to any children from the marriage.
REMEMBER: If you are applying under the ordinary divorce procedure, there are two separate ways it can progress depending on how the defender responds. If the defender is happy with the grounds of the divorce, then the case is considered undefended. Where the defender objects, however, the case will be recognised as defended and you will need the expertise of a qualified family law solicitor.
How much does a divorce cost and how long does it take?
The amount you will pay depends on the type of procedure you use and whether the application is lodged in the Court of Session or Sheriff Court. The cost of an undefended divorce can be significantly less than a defended divorce, which is why having an agreed plan in place – through the use of a prenuptial agreement or mediation for example – can be beneficial.
Unfortunately, there is no guaranteed timescale for how long a divorce will take as this will depend on your personal case and what’s involved with the divorce. A simplified or undefended divorce where the court are not asked to consider financial issues or child arrangements will typically take around six weeks. An ordinary divorce, on the other hand, can be up to 12 weeks for the court to grant the decree of divorce. Contested cases – where children, finances or property are disputed – are likely to take significantly more time, somewhere from nine months to one year before reaching the decree stage.
How are our assets split on divorce?
When you go through a divorce, any money, property and assets accrued during your marriage are legally defined as ‘matrimonial property’. Although gifts or inheritance received during the marriage are not considered matrimonial property, if either were converted into a physical asset, such as a house, then the house would be classed as matrimonial property.
The starting point in determining how to split the assets is usually to divide the net value of the matrimonial property (the value of all assets minus any debts) fairly between both parties. However, the court will take into account:
- Any economic advantage/disadvantage for one of the parties during the marriage
- If one spouse would be left with the financial burden of caring for a child under the age of 16
- Whether one spouse will suffer serious financial hardship following the separation
REMEMBER: The law around what each party can take from the marriage differs from that in England. While English legislation allows asset accrued prior to the marriage to be taken into account by the courts, in Scotland, only the assets acquired during the marriage are available for division between both parties.