Facts About Scottish Divorce Law
We often get asked what are the rules for divorce in Scotland? This article aims to provide you with the facts about Scottish divorce law that you will need to consider when planning to end your marriage in Scotland. You will then be in a position to choose which type of divorce procedure is best for you to use.
Essentially there are two types of procedure that can be used in Scotland to apply for a divorce or the dissolution of a civil partnership – these are known as the Simplified or Do-it-Yourself procedure and the Ordinary or Non Simplified procedure.
Both types of divorce applications can be raised in the Sheriff Court or Court of Session, but there will be different procedures & forms required and the fees charged will vary depending on where you raise the claim.
Contents
Divorce in Scotland – Which divorce procedure does my situation fall under?
To use the simplified Scottish divorce procedure you will need to be applying for divorce based on the grounds of either one year’s separation with consent or two years separation without consent.
You will also need to have no children under the age of 16 of the marriage, along with no financial matters that require settling.
If you have either of the above you will be expected to file under the Ordinary Scottish Divorce procedure, which generally takes a bit longer to complete.
You can apply for either Scottish Divorce procedure online, without having to use a solicitors firm.
Grounds for divorce in Scotland
When you apply for either Scottish Divorce procedure you should first consider which grounds for divorce is to be specified as part of the divorce application process. There are two grounds for divorce in Scotland – the irretrievable breakdown of the marriage or an interim gender recognition certificate has been obtained.
Grounds for divorce Scotland
The irretrievable breakdown of the marriage can be proved if:
- There is unreasonable behaviour
- There is adultery
- You both agree to the divorce, and you have been separated for at least one year
- One of you doesn’t agree to the divorce but you have been separated for at least two years
Adultery
The law defines adultery as voluntary sexual intercourse between a married person and a person of the opposite sex not being the married partner. The judicial definition is quite bizarre. Adultery requires ‘physical contact with an alien and unlawful sexual organ’.
One of the difficulties with this ground is obtaining proof. The Scottish Executive propose to get rid of this category altogether.
Unreasonable behaviour
Unreasonable behaviour covers the whole spectrum of human existence. The test is a simple one, If you find your partners behaviour such that you could not reasonably be expected to continue to live with them then that is unreasonable behaviour.
The common issues raised by this ground of divorce include financial difficulties, drinking, gambling, violence and the lack of emotional and practical support within the marriage. These are just some of the examples that can be used.
One years separation with consent
Where both parties have lived apart for one year or more, one of the parties can raise an action of divorce with the consent of the other party.
This is an example of a no-fault divorce. It is a ground which is commonly used especially where the parties have resolved their personal difficulties and agreed to an amicable separation.
Two years separation without consent
Where both parties have lived apart for two years or more, one of the parties can raise an action of divorce without the consent of the other party.
Interim gender recognition certificate
A marriage can be ended by a transgender person if an Interim Gender Recognition Certificate has been obtained.
The spouse of a transgender person also has the right to divorce in Scotland, though this circumstance is not officially regarded as a ground for divorce. The Scottish government’s view is that there is no specific need for gender recognition to be a ground for divorce or dissolution. In this situation the ground that the marriage or civil partnership has broken down irretrievably would be sufficient.
How to apply for an Interim Gender Recognition Certificate
How much does a divorce cost in Scotland?
In Scotland, the two ways to get a divorce are the Simplified Procedure (also known as a Do-it-Yourself Divorce) and the Ordinary Procedure.
The fees you pay will depend on which procedure you select and there are various fees payable to the court at different stages of the divorce procedure. The fees are set out in Scottish Statutory Instruments (referred to as a Fee Orders) and these are regularly updated by Fee Amendment Orders.
At the present time (from 1st April 2020) the cost of a Simplified Divorce or Dissolution is £128 (Sheriff Court) or £134 (Court of Session). The cost of an Ordinary Divorce or Dissolution (where the Simplified Procedure can’t be used) is £159 (Sheriff Court) or £173 (Court of Session).
Please Note: These fees are intended only as a guide and are subject to change, please refer to the Scottish Courts website for more details and up-to-date costs.
Who pays divorce fees in Scotland?
The Scottish Court has a wide range of powers and discretion to awarding costs and will look at solicitors’ fees and the conduct of both parties when deciding if costs should be awarded and at what level.
The question of who pays the divorce court fees in Scotland usually depends on who initiates the divorce proceedings – the court can if it chooses, order the respondent (the one who is being divorced) to pay the legal fees of both sides.
Other orders on divorce in Scotland
The range of orders that are possible on divorce are effectively unlimited but in general regulate two matters: the children and the financial status of the parties to the marriage.
Upon divorce, each party is no longer entitled to ailment each other. This obligation may, however, be continued for a short time after marriage where the court makes an order for periodic allowance to enable a party to adjust to new financial circumstances.
Orders relating to who will have the residence of the children and who can have contact with the children can be made. The courts will not make an order relating to the care of the children unless necessary.
If the children’s care has been arranged satisfactorily between the parties no order will be made. An order may be made for the sale of the matrimonial home or the transfer of tenancy of the home.
A deferred order for a capital payment is often considered where the assets are tied up in a pension scheme. The court can ‘earmark’ pension funds which must be paid out when the pension matures. This prevents the pension holder from obtaining his lump sum and not paying some of it over to his ex-spouse.
How long does a divorce take in Scotland?
A Simplified Divorce normally takes 6 to 8 weeks from the application at the court to being granted. An undefended Ordinary Divorce can take 8 to 12 weeks from the application at the court to being granted.
These scenarios are the quickest, but both options assume that all matters relating to finances and children have been resolved. If not, and an Ordinary Divorce is defended, it is not possible to give a timeframe as it depends upon the orders requested from the court, for instance:
- Is ancillary procedure required for disclosure of information and documents
- Are there are child matters to be resolved
- Is a proof (evidential hearing) required and if so are witnesses required, including expert witnesses
These are examples of the types of issues which may need to be considered, any of which could result in the process taking longer. This can take up to a year or more and is dependent upon the court timetable and parties and witnesses availability.
Scottish divorce residency rules
As people move around the UK for a variety of reasons the residency rules on divorce applications can become a grey area. Consequently, it’s important to be aware of the differences in divorce law in Scotland compared with England if you plan to file for divorce and you have a residence in both countries. See our article: Is Divorce Law Different in England and Scotland? for more details.
How to get a divorce in Scotland?
There are two ways to get a divorce in Scotland:
- Simplified Divorce – Also called the DIY procedure
- Ordinary Divorce – This procedure is either defended or undefended
Ordinary Scottish Divorce Procedure
The Ordinary divorce procedure is for couples who have children under the age of 16 or are looking to file for divorce on the grounds adultery or unreasonable behaviour.
You will be required to follow the ordinary procedure in Scotland, which our Scottish divorce expert will help you with from start to finish for just £199 fixed-fee.
