Scottish Divorce Law and Divorce Services
Which Scottish divorce procedure does my situation fall under?
To use the Simplified Scottish divorce procedure, you will need to be using either one years separation with consent or two years separation without consent as your ground for divorce.
You will also need to have no children under the age of 16 of the marriage, along with no financial matters.
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, but you can still complete the procedure without having to use a solicitors firm.
In Scotland there are four grounds upon which to base an action of divorce: Adultery, Unreasonable Behaviour, 2 years separation with the consent of both partners and 5 years separation without the consent.
Adultery in Scotland
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 the proof. The Scottish Executive propose to get rid of this category altogether.
Unreasonable behaviour in Scotland
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 in Scotland
Where 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.
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 residence of the children and who can have contact to 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 obtaining his lump sum and not paying some of it over to his ex spouse.
Simplified Divorce Procedure in Scotland
An application can be made to your local Sheriff Court for a Simplified divorce in Scotland on the last two grounds only, which are 2 years separation with consent and 5 years separation without consent.
This is on the basis that there are no money issues between the parties and no children under the age of 16.
If you are on Income support the Court or your Solicitor will provide a form which will exempt you from the £104 fee. There is no need to attend a Court hearing and a divorce can usually be completed in 8-10 weeks.
Ordinary Divorce Procedure in Scotland
The Ordinary divorce procedure is for couples who have children under the age of 16 or are looking to file for divorce for 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 £195.