This time of year is often seen as an opportunity to make a fresh start. It is also a time when spouses separate or think about starting divorce proceedings. Taking such a big step can seem daunting, especially if you don’t know where to start.
Starting divorce proceedings
If ending your marriage is the only remaining option, then you need to go through the correct legal process. Divorce ends the legal contract of marriage. As a pre-requisite to be divorced in Scotland you need to meet the residence requirements and you must prove that your marriage has broken down irretrievably. To prove irretrievable breakdown, you will need to establish one of the following conditions:
- You have lived separately for at least one year, and your spouse consents to the divorce;
- You have lived separately for at least two years (then you don’t need their consent);
- There is adultery; or
- There is unreasonable behaviour
You will need to make sure that you satisfy one of the above conditions before applying for a divorce. Most divorces in Scotland are based on one of the first two provisions.
To be divorced in Scotland you must apply to the court, usually the Sheriff Court. In Scotland, there are two procedures that can be used to apply for a divorce – the Simplified Procedure and the Ordinary Procedure.
Simplified Divorce Procedure
You can apply for a divorce using the simplified procedure based on one year’s separation with the consent of your spouse, or two years’ separation without your spouse’s consent. To apply for a simplified divorce there must be no children of the marriage under the age of 16 and no financial matters that need to be resolved.
To start the simplified divorce process, you must complete the relevant application form. The application form can be obtained from the Scottish court website. You should seek legal advice before starting the simplified divorce procedure so that you can be sure that it is the right option for you.
Once you have established that you want to proceed by way of the simplified procedure, you can do this yourself without a solicitor. Some clients want a solicitor to draft the paperwork and we can assist you with your simplified divorce on a fixed-fee basis.
Ordinary Divorce Procedure
If you do not qualify for a simplified divorce, you need to seek a divorce using the ordinary court procedure. This is the process you have to follow if you are seeking a divorce for the adultery or unreasonable behaviour of your spouse. You also have to use this if there are children under 16 or if you there are financial or property issues to resolve.
The ordinary procedure is more complicated and cannot be done by way of an application form to the court. You will need a solicitor to prepare the necessary paperwork and to raise court proceedings on your behalf.
Having identified one of the four potential conditions of divorce, your solicitor will draft the initial writ and submit this document to the appropriate Sheriff Court. This is a formal document that sets out the basis for the divorce. It is the first document submitted to the court and it starts the ordinary divorce process. Your marriage and any children’s birth certificates must normally be submitted with the initial writ.
Whichever procedure you use, divorce proceedings must be served on your spouse. Your spouse must be informed about the proceedings. They must also be given the opportunity to defend the action.
The divorce process will be more straightforward and cheaper if you and your spouse can reach agreement on financial matters and/or child arrangements. If you have both agreed on all issues arising from your separation before applying for a divorce, the divorce action can be undefended.
If you and your spouse are unable to come to an agreement over financial issues and/or child arrangements, your solicitor can include a request in the initial writ for the court to consider these matters in advance of or at the same time as the divorce.