Divorce is never easy, and the whole process can seem overwhelming at first. However, understanding what to expect can make the experience less stressful and help you feel more in control.
In Scotland, divorce can be relatively straightforward, especially in cases where both parties agree. This article breaks down the process for those who are considering or currently going through divorce.
What Is Divorce?
Divorce is the legal process that formally ends a marriage. In Scotland, divorce is dealt with by the Scottish courts and follows Scottish family law.
Once a divorce is granted, both parties are free to marry and are no longer legally recognised as spouses.
Grounds for Divorce in Scotland
In Scotland, a divorce can only be granted where the marriage has irretrievably broken down. This breakdown must meet one of these four recognised grounds.
- One year’s separation without consent – both parties agree that the marriage is over and consent to the divorce being granted.
- Two years’ separation without consent – if one spouse does not agree to the divorce, the pursuer can still apply after two years of living separately.
- Unreasonable behaviour – this could include verbal or physical abuse, financial irresponsibility, or other behaviours that make it unreasonable to expect the pursuer to continue living with the defender.
- Adultery – where one spouse has had sexual relations with someone else.
A solicitor will help you determine which ground is most appropriate and what evidence or statements you may need to support your application.
Choosing the Right Divorce Procedure
There are two divorce procedures in Scotland, simplified and ordinary. Which one you choose to go for depends on the level of civility you each have towards one another and whether you can each agree on the terms of the divorce.
Simplified Procedure
The simplified procedure is the quickest and most cost-effective route. This is because it is paperwork only. However, it is only available in certain circumstances. These include:
- You and your spouse have no children under the age of 16
- You both agree to the divorce
- All financial matters have already been resolved
As the simplified procedure does not deal with issues such as division of assets or child arrangements, these must be settled beforehand. This is usually done with the help of a solicitor.
Ordinary Procedure
The ordinary procedure is the more common route. This is particularly the case where children or financial matters are involved. This procedure includes a full court process. It is used when:
- There are children under 16,
- There are unresolved financial issues,
- The divorce is not agreed upon, or,
- The pursuer wishes to make financial claims.
This procedure allows the court to consider a full range of matters. These include property, pension sharing, and child arrangements.
Financial Matters
Before a divorce is finalised, financial issues must be resolved. Matrimonial property, which generally includes assets acquired during the marriage, may need to be valued and divided. This can involve:
- The family home
- Pensions
- Savings and investments
- Business interests
- Personal belongings of significant value
In addition to the division of assets, spousal support, known as aliment, may also be considered, depending on the financial circumstances of each party.
Reaching an agreement through negotiation is generally preferred. However, sometimes this is not possible. In this case, the court can make binding decisions during the ordinary divorce process.
Child Arrangements
Where there are children under 16 involved, the court will require evidence that proper arrangements have been made for their care and wellbeing. The focus in these arrangements is always the best interests of the child. Arrangements can often include:
- Where the children will live (residence)
- How often will they see the other parent (contact)
- How future decisions about education, health, and welfare will be made.
Most parents aim to reach an agreement amicably. This is either done directly or with the support of mediation or legal advice. Where agreement is not possible, the court may be required to make decisions.
Court
For an ordinary divorce, your solicitor will prepare an Initial Writ. This sets out the grounds for divorce along with any financial or child-related claims. This is then lodged with the sheriff court and served on the defender, who then has the opportunity to respond.
If the divorce is uncontested, the case can often proceed on the basis of affidavits (written statements) without a court hearing. If contested, further steps may follow, including adjustments, hearings, and potentially a full evidential hearing (known as a proof).
How Long Does The Divorce Process Take?
The timescales of a divorce can vary from case to case. Some cases can be more complex than others, leading to them taking longer to resolve. A simplified divorce may take as little as eight to twelve weeks from application to completion. On the other hand, a contested ordinary divorce can take many months or even longer in more complicated situations. Factors that can affect the timing include disputes over children, complex financial arrangements, and how quickly each party provides the necessary information.
Speak to a Family Law Solicitor Today
If you are thinking about divorce or are currently going through the process, having the right legal advice can ensure your rights are protected.
At Nicolson O’Brien Solicitors, our team of expert family law solicitors can guide you through the process and help ensure you get the best outcome possible.
Speak to our team today on 01236 751 224 or maildesk@nicolsonobrien.co.uk.