How to get divorced in Scotland

In Scotland, there are two types of procedure that a married person can use if they wish to get divorced from their spouse.

Simplified divorce

The first and most straightforward procedure is a simplified divorce which is also known as a ‘Do it yourself divorce’.

The simplified procedure can be used if the parties:

• do not have any children under the age of sixteen and
• there are no financial matters arising from the separation that have to be resolved prior to divorce.

You cannot use the simplified procedure if your spouse is not able to manage their own affairs because of a learning disability, for example.

You can use the simplified procedure if:

• you have been separated for one year and your spouse consents to divorce
• you have been separated for two years (you do not need your spouse’s consent).

Regardless of whether you wish to lodge a simplified divorce application in your local Sheriff court or in the Court of Session, you fill out an application form which will vary depending on the length of the separation and whether or not there is consent given.

Ordinary cause procedure

The second type of procedure is to raise an action for divorce by using what is called the ordinary cause procedure. This is where you require to raise a court action seeking a divorce.

You have to raise an action for divorce (rather than use the simplified procedure) if:

• there are financial matters that require to be resolved or
• you have a child or children under the age of sixteen.

In those circumstances, you have to lodge a court document called an Initial writ in accordance with the Ordinary Cause Rules 1993.

Ground for divorce

There is one ground for divorce in Scotland, which is that there has been an irretrievable breakdown of a marriage An irretrievable breakdown can be because:

• you and your spouse have been separated for one year and you both consent
• you have been separated for two years (when you do not require the consent of the other spouse
• there has been unreasonable behaviour by your spouse or
• there has been adultery

Procedure for a court action

A court action is more complicated than the simplified procedure as an Initial Writ must be drafted and lodged at court to be warranted, which gives authority for it to be served upon your spouse.

Once the Writ has been warranted and it is served on your spouse they have 21 days to defend the action if they wish to do so.

If an action is defended that would trigger a court timetable with various procedural dates.

If it is not defended, the person raising the action can lodge a Minute for Decree together with an Affidavit (a sworn statement) by them and one from a witness corroborating the grounds of divorce. The papers would be lodged at court with a Minute for Decree when the sheriff would consider them in chambers. If the sheriff does not require any additional information the divorce would be granted - regardless of which procedure you have used.

Timescales

If your application is undefended, it could take approximately three months for your divorce to be granted (depending on how busy the courts are). The court fees and the solicitor’s fees will vary depending on which procedure you invoke.

Financial settlements

We have explained about the procedure for seeking a divorce once any financial matters arising from your separation have been resolved. It is important that you seek independent legal advice about what you may be entitled to by way of financial settlement from your spouse, including any financial support from your spouse for you and your children (if you have any) and also what you are entitled to in terms of a fair share of the matrimonial property, before you seek a divorce.

Summary

Our Scottish family law team can advise you about either of these options and recommend which is best for you in your circumstances. If you wish to discuss matters further, please contact one of our team.