Divorcing a spouse can be not only an emotional experience but can also be complex. Here are the basics of what you need to know.
Ground for divorce
The ground for divorce in Scotland is that there has been an irretrievable breakdown of the marriage and no prospect of reconciliation. The “irretrievable breakdown” can be established by the period the spouses have been separated (one year if one spouse applies for divorce and the other signs a form of consent to a divorce or two years in which case the other spouse’s consent is not required); or by one of the spouse’s unreasonable behaviour throughout the marriage or one of the spouse’s having been involved in an adulterous relationship. Divorce is never “automatic” in Scotland – an application by one of the spouses to the court is always required.
Do I need a family Lawyer?
The granting of divorce has important legal consequences. It is advisable to seek advice from a solicitor before starting the process.
Separation Agreement
In Scotland, the financial matters arising from the breakdown of the marriage should be dealt with either before or at the same time as the divorce (not after the divorce has been granted). If possible it is better to reach an agreement with your spouse and enter into a written agreement to deal with financial matters – this simplifies the divorce process. It is recommended that you seek advice from a solicitor about financial matters and what your rights are. It is advisable for a solicitor to draft the written Agreement, or to review any Agreement which has been prepared before it is signed.
Children
If there are disputes between you and your spouse about the care arrangements for any children of the marriage under the age of sixteen, this can cause delay in divorce being granted. You should seek advice from a solicitor if this applies to you.
Procedure
There are two types of procedures for applying to the court for divorce, depending on whether there are children in the marriage, financial matters to resolve, and what the cause of the irretrievable breakdown of the marriage is. The “Simplified Procedure” can only be used where there are no children of the marriage under the age of 16, no financial matters to be addressed, and where the marriage has broken down as a result of the spouses having been separated for one year (with the consent of the other spouse) or two years.
Some Interesting Stats (Scotland)
The number of divorces granted in 1985 was 13,365, compared to 7,718 in 2021 *. It is thought that this decrease is possibly linked to the general downward trend in people getting married. The total granted in 2021-22 was 8,249, 45% higher than in 2020-21* – could this possibly be due to the impact of the Covid-19 pandemic? In 2021-22 57% of divorces granted used the Simplified Procedure and 98 were granted to same sex couples*.
*Source:
Conclusion
Divorce proceedings are not as straightforward as is often thought. If you need advice we can assist.
