Scottish Divorce Law

Is divorce law different in Scotland?

First and foremost, a couple living in England or Wales can only be divorced under English Law. In Scotland, the same rule applies where a couple living in Scotland should be divorced under Scottish law.

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.

Divorce process Scotland

When you apply for either of the Scottish divorce procedure you should first consider which grounds for divorce is to be specified as part of the divorce process. There are two grounds for divorce in Scotland – the ‘Irretrievable Breakdown of the Marriage’ or when 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

Unreasonable behaviour

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.

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. One of the difficulties with using this ground for divorce is obtaining proof – the Scottish Executive propose to get rid of this category altogether.

One year’s 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 a form of ‘no-fault divorce’, a process now used in England & Wales and is a ground for divorce often used where both parties have resolved their personal difficulties and have 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 is a divorce in Scotland?

The fees you pay will depend on which procedure you select and where you file for divorce. The fees are set out in Scottish Statutory Instruments (referred to as a Fee Orders) and these are regularly updated by Fee Amendment Orders.

As of April 2020 the cost of a Simplified Divorce or Dissolution is £128 at the Sheriff Court or £134 at the Court of Session. The cost of an Ordinary Divorce or Dissolution is £159 at the Sheriff Court or £173 at the 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.

Scottish law divorce rights

When it comes to divorce rights, Scotland is often viewed as being more financially stringent than its British counterparts when it comes to making provision for a less well-off spouse.

The law in Scotland seeks to ensure a “clean break” divorce whereby couples are no longer financially tied to one another. Whereas in England and Wales couples can find themselves financially tied to one-another many years after the divorce, unless they actively seek a clean break.

The Scottish clean break principle

One very significant difference in Scotland, based on the clean break principle, is that any claims available to either spouse must be made prior to the divorce being granted.

This may be a negotiated settlement or decided by the Court. Either way, once the divorce has been granted, neither spouse can seek further claims in the future.

However, there is a seldom-used provision that the court can be asked to grant a divorce but set a future date by which financial claims can be made, but again, once these claims have been resolved no future claims can be made.

What is my wife entitled to in a divorce Scotland?

The clean break principle also means that maintenance payments or periodical allowance as it is referred to in Scotland, from one spouse to another are usually restricted to a maximum of three years.

Consequently, whether the divorce is petitioned in Scotland or England may have a significant financial impact on the amount awarded and the period over which it will be paid.

It should also be noted that in Scotland, maintenance applications can be raised separately to a petition for divorce. Furthermore, such applications do not require to be raised where a married couple last resided together. They can instead be raised in a court where the applying spouse is habitually resident.

In summary, if there is likely a substantial difference in the financial package a spouse would receive between family law courts in England or Scotland there needs to be a thorough understanding of how the rules of jurisdiction work.

If potentially one jurisdiction is to be of advantage for one spouse, what steps should be taken to ensure the advantage is achieved.

Alternatively, if there could be a disadvantage for one spouse, how is jurisdiction established in a more favourable part of the UK?

Scottish divorce timeline

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.

Can I divorce in Scotland if I live in England?

Yes you can divorce in Scotland if you live in England – provided you meet the essential criteria concerning the Scottish divorce residency rules. Where you choose to get divorced can have a huge bearing on several issues, so it’s well worth understanding the key differences between the divorce laws in England and Scotland.

How do you decide where divorce proceedings should be petitioned? The Domicile and Matrimonial Proceedings Act 1973 states that “divorce should be dealt with by the court where the parties last lived together as husband and wife”. For most couples that will be clear.

However, people do move around the UK for all sorts of reasons, and this is where the divorce laws become somewhat of a grey area. Where a couple has lived in both England and Scotland, and/or have a residence in both countries can become a matter of interpretation.

If you are a couple who have perhaps divided your residence between Scotland and England, or one spouse has moved from one country to another this could be of vital importance.

For example, there are many spouses who reside in Scotland with their partner but spend the working week living in England. If these marriages break down it is possible that divorce could be brought under either jurisdiction.

It is, of course, possible that a court in England and a court in Scotland could each have jurisdiction if one spouse lives in England and the other lives in Scotland. Generally, it can be first past the post for establishing which court will deal with a divorce i.e., who raises the divorce first and where.

In Scotland, a divorce is deemed to have started once the divorce papers have been served. There are sometimes complex reasons why a court might decide that, even though a divorce has been raised in one jurisdiction, it may be appropriate to remit the case to the court in the other jurisdiction.

Scottish divorce residency rules

First and foremost, a couple living in England or Wales can only be divorced under English Law. In Scotland, the same rule applies where a couple living in Scotland should be divorced under Scottish law.

To get a divorce or the dissolution of a civil partnership in Scotland, under Scottish law, you need to be able to say that:

Either you or your spouse/civil partner are domiciled in Scotland when the application is made.

and/or

You or your spouse/civil partner are habitually resident in Scotland, having resided there for at least one year immediately before making the application.

Additionally if you are applying for a simplified divorce/dissolution in the Sheriff Court one of the following criteria must also apply:

Either you or your spouse/civil partner have lived at your current address for at least 40 days before the date the application is made.

and/or

You or your spouse / civil partner have no known residence in Scotland but did live at the address shown for at least 40 days, ending not more than 40 days before the date the application is made.

Domiciled in Scotland

It should be noted that the status of Domicile is a ‘state of mind’ rather than an issue of residence and essentially means that you intend to reside in Scotland permanently. There is no time requirement as to how long you should be in Scotland before you acquire domicile.

Resident in Scotland

The residence requirement means you must have resided in Scotland for one year prior to starting the divorce.

If raising the application using the Sheriff Court rather than the Court of Session (most divorces are done in the Sheriff Court) then you are required to have lived within the area of the particular Sheriff Court for 40 days immediately before you raise the divorce.

How to get a divorce in Scotland

Having determined that you qualify to apply for a divorce or the dissolution of a civil partnership in Scotland what options are available to you? There are two types of divorce procedures that can be used in Scotland. These are known as the Simplified Scottish Divorce (Do-it-Yourself Divorce) and the Ordinary Scottish Divorce (Non-Simplified Divorce).

Either type of divorce application can be raised in the Sheriff Court or Court of Session in Scotland and the fees charged will vary depending on where you raise the claim.

Generally, if your application is a relatively straightforward case and falls below the threshold of £100,000 it will be quicker and cheaper to use the Sheriff’s Court. For more complex cases, and cases where a large amount of money is being claimed you will probably need to use the Court of Session.