Frequently asked questions
How can I get a divorce?
A Divorce is the termination of the legal contract of marriage, and you can only get one by petitioning a court, generally the Sheriff Court, for a divorce decision. Although the process is similar, a civil partnership can be lawfully terminated by dissolution rather than divorce.
If you and your spouse can reach an agreement on all matters resulting from the separation before filing for divorce, the application will be undefended. This eliminates the need for either party to appear in court to provide evidence for the divorce, making the entire procedure a lot easier. A Solicitor is usually required to draft and submit the application on your behalf.
If you are unable to reach an agreement, you may have to file a court action to have the concerns resolved as part of the divorce proceedings. With Solicitor legal counsel on both sides, this may be a costly process.
What is the process for filing for divorce?
There are two ways to file for divorce:
- Simplified method – sometimes known as a ‘quickie divorce’ or ‘DIY divorce,’ this may apply to you if there are no financial issues to address, or if these have already been decided and signed up in a formal Separation Agreement, and there are no children under the age of 16 from the marriage.
- In all other circumstances, the ordinary process is followed.
To file for divorce, you must first demonstrate grounds for divorce.
What are the grounds for divorce?
There are just two grounds for divorce. The most common is if you can prove that the marriage has irreparably broken down. You can demonstrate this irretrievable breakdown in four varying methods:
#1. You and your spouse have been separated for a year, and your spouse is willing to consent.
#2. You and your spouse have been separated for two years. You can then divorce without your spouse’s permission.
#3. You have evidence that your husband committed adultery. You can then file for divorce immediately. However, if you are aware that your spouse has committed adultery and continue to live with them while putting up with the circumstances, it may be argued that you have approved the adultery and will not be allowed to divorce on that basis.
#4. You might prove that your spouse’s behaviour is such that you cannot fairly expect to continue living with them – this is known as “unreasonable behaviour.” You can then file for divorce right away. To confirm the stance, you would need to provide evidence from someone else. Unreasonable behaviour does not always imply physical abuse. It can also include difficulties like alcohol or drug abuse, gambling, and emotional abuse.
Another reason for filing for divorce is if one of the parties has received an interim gender recognition certificate under the Gender Recognition Act of 2004.
Our team can help you determine whether you have grounds to file for divorce.
In Scotland, there is a ‘no fault’ principle, which means that regardless of the grounds for divorce, neither party will be financially penalised for their actions.
Before filing for divorce, you might think about reaching an agreement on childcare arrangements and how any financial assets would be divided.
How long does a divorce take?
This will depend on the details of your case. However, provided you meet one of the grounds for divorce and you are not seeking the court to rule on financial problems or childcare arrangements, a divorce can normally be granted within six to eight weeks.
What exactly is a “Quickie Divorce”?
In Scotland, this usually refers to the Simplified Divorce. This can be used if there are no outstanding financial issues to resolve (or if these have previously been agreed upon and recorded in a Separation Agreement) and there are no children of the marriage under the age of 16 years.
You can complete the divorce application form yourself in a Simplified Divorce, but it must be notarized by a Solicitor before it can be filed with the court. From start to completion, the process takes about eight weeks.
We have both decided to divorce and have already separated. What should we do next?
If you have agreed on all financial matters and child care arrangements, and the agreements have been legally documented in a Separation Agreement, you can file for divorce if you meet one of the grounds for divorce indicated above.
If not, the first step is to have a Solicitor draft a Separation Agreement (also known as a Minute of Agreement). This is a legally binding document that formally records how the marriage assets and debts will be divided, as well as where the children will live and the amount of child maintenance/support to be paid.
If you and your spouse are unable to reach an agreement, one of you may have to consider filing for divorce, in which case you can both petition the court to determine how the finances will be divided and the care arrangements for the children.
My spouse does not want a divorce, but I do. So, what should I do?
You should get legal assistance before filing for divorce, as a Solicitor can explain all of the options accessible to you. It might not matter if your spouse doesn’t agree if you ask for a divorce under certain grounds. In these cases, you might be able to do so without their permission. Alternatively, your lawyer may be able to assist you in negotiating the conditions of a separation agreement with your husband, after which you can apply for divorce.
What am I entitled to after the Divorce?
In Scotland, the law says that everyone has the right to a “fair” share of the family property, which is the property that was acquired during the marriage. That will most likely be a 50/50 split. There are times, though, when a 50/50 split wouldn’t be fair. In those cases, someone can ask for more than 50%.
What happens to children when parents divorce?
There is no absolute rule. If parents are unable to agree on child care arrangements, the court might be requested to decide where the children should live. Legally, what’s best for the kids is what matters, so the court has a lot of freedom to decide what that includes. It is generally preferable if parents can reach an agreement on this, and there are a variety of alternative conflict resolution procedures that may be appropriate in your situation, rather than confronting the uncertainty of a court order.
Can we divorce while living in the same house?
Yes. Many people simply cannot afford to manage two households when they first split up, thus it is not uncommon for them to begin legal separation proceedings while still living together. Many people believe that to be legally separated, you must physically reside apart, but this is not the case. The important date is the date on which the pair stops to live together as husband and wife.
What is the separation date?
Contrary to common opinion, it does not have to be the date that a couple stops to live together and one leaves the family home, but this is often the case. It is the legal date on which both parties stop to live together as husband and wife. Even after separating, a couple may continue to live together under the same roof. The date of separation is a fact, and if there is disagreement about it, evidence must be given to prove what date it was.
What if I have no idea where my spouse is?
Tracing agents might be hired to try to find your spouse. If that fails, traditional ways of serving court papers can be used, such as placing an ad in the local newspaper and posting a public notice at the local court.
Can I get divorced in Scotland even if I got married abroad?
Could be. But that isn’t enough to show that the Scottish Court has the right to hear the case. This is a complicated legal matter, so you should talk to a lawyer about your unique case.