Breaking up with someone is a big life decision that can be emotionally and legally challenging. Navigating this difficult period more easily can be achieved by being aware of the various methods.

Grounds for Divorce

In Scotland, a divorce may be obtained for the following particular reasons:

• Irretrievable Breakdown of the Marriage: This can be demonstrated by adultery, irrational behaviour, or a year or two of separation without approval from your spouse.
• Either spouse receives a certificate of interim gender recognition.

Simplified Divorce Procedure

As the name implies, the Simplified Divorce Procedure was created to expedite and streamline the divorce procedure for divorcing couples. The following requirements must be satisfied to be qualified to apply for a streamlined divorce:

• You and your partner have been apart for a minimum of one year (with your partner’s consent required for the divorce to be finalised) or two years (without their consent).
• The marriage has no children under the age of sixteen.
• Every financial issue that arose during your separation has been settled by you and your partner.
• You and your spouse are both capable of handling your affairs; neither of you has a learning disability nor a mental disease.
• For the divorce to be granted, the Scottish courts must have jurisdiction.

Generally speaking, this divorce process is less expensive and takes less time than other options.

Ordinary Divorce Procedure

In Scotland, the ordinary procedure for getting a divorce is called the Ordinary Divorce Procedure. If any of the following apply to you, you must use this procedure: (1) you do not meet the requirements for the Simplified Divorce Procedure; (2) you are filing for divorce due to adultery or unreasonable behaviour; (3) the divorce is contested; or (4) there are unresolved disputes regarding finances or child-rearing arrangements. The following more thorough legal actions are necessary for this process:

• The reasons for divorce will be outlined in an initial writ. It will be forwarded to the court to request permission to serve your spouse with the first writ.
• Your spouse (as well as other parties, such as your mortgage lender, in some cases) will then receive official notice of the divorce.
• Your spouse has 21 days from the date of receipt of the Initial Writ to determine whether to accept the conditions of the divorce or challenge them. An undefended divorce occurs when both parties consent to the divorce. A divorce is said to as defended if they don’t.

Undefended Divorce

If your partner accepts the divorce, it’s a rather simple process. There will be created declarations called “Affidavits” that detail the supporting documentation for the divorce. Affidavits from the application seeking the divorce and a witness to bolster the applicant’s version of events will outline any unreasonable behaviour by your spouse, for example, if it is the basis for the divorce. The original writ and the affidavits are among the documents filed in support of the application that are reviewed by the court.

If you are the parent of a child under 16, the court will make sure that the arrangements agreed for their care are appropriate and in their best interests, and that no orders are needed to be issued for them.

Defended Divorce

After receiving the Initial Writ, your spouse must file a Notice of Intention to Defend (Form F26) with the court if they disagree with the reasons for divorce or your proposed division of assets, debts, and children.

If the parties cannot agree on anything (and the action is “settled”) in a defended divorce, it may be necessary to schedule an evidentiary hearing (also known as a “proof”). The sheriff will make the ultimate judgement after you, your spouse, your solicitors, and witnesses submit your separate arguments to him or her at that hearing.

If your divorce is predicated on an irretrievable breakdown of marriage, the court will decide whether or not the care arrangements for any children involved are satisfactory and whether or not the marriage has truly broken down. The court will also decide which financial orders should be made and deal with the distribution of matrimonial property. When your husband opposes the divorce, they can consider pursuing a financial claim against you, even if you haven’t asked for any financial orders.

The court grants a divorce (defended or not) and then issues an extract decree of divorce, which is a divorce certificate. This is the document you will thereafter present if you need to provide proof of your marital status.

Breaking Up a Civil Partnership

The dissolution of a civil partnership in Scotland is referred to as a “dissolution” and is handled similarly to a divorce. The reasons for dissolution are essentially the same, except that infidelity is not a valid reason for proving irretrievable collapse. The court produces a dissolution certificate known as the extract decree of dissolution upon granting the dissolution (whether defended or undefended).

The Ordinary Procedure is more complicated than the Simplified Procedure, even if the former can occasionally be handled without legal counsel. Your ability to pursue any financial claim against your spouse (as a result of your marriage) ends with divorce under Scots Law. Consequently, before filing for a divorce, make sure you have obtained legal counsel and that you approach the procedure with awareness. Our family law attorneys can offer you invaluable advice and support at every stage of the process because they have handled a variety of divorce situations.

If you need support and guidance from a lawyer please contact our team and book a free consultation to speak with us.