In Scotland, the legal process of divorce is regulated by the Divorce (Scotland) Act 1976, a cornerstone legislation that outlines the various procedures one must follow when seeking to end a marriage. This guide aims to shed light on the Simplified Divorce Procedure, also known as the DIY divorce, and the Ordinary Divorce Procedure, ensuring that you understand the intricacies and legal nuances involved in the dissolution of a marriage under Scottish law.

If you are considering a divorce, speak with one of our team today and let us support you through the process. Contact our team here or feel free to call us on 01224 456789.

Simplified Divorce Procedure

The Simplified Divorce Procedure offers a streamlined and cost-effective option for couples who meet certain criteria. These criteria are;

• Both parties must have been separated for more than one year.
• Mutual consent to the divorce must be present. (However, if the separation has lasted for more than two years the consent of the spouse is not a prerequisite).

Additionally, this procedure applies only to couples without children under the age of 16 and where there are no financial matters to be resolved, such as the division of property or pensions. The process involves completing an application form and submitting it to the sheriff court, with a court fee.

Ordinary Divorce Procedure

The Ordinary Divorce Procedure is the process that must be navigated for those who do not meet the criteria for a Simplified Divorce.

Notably more complex than its simplified counterpart with a higher court fee. This method involves establishing one of the following grounds for divorce as stipulated by the law:

• Adultery
• Unreasonable behaviour
• Non-cohabitation for one year (with consent)
• Non-cohabitation for two years (without consent)

Adultery

Adultery is a recognised ground for divorce. Adultery is defined as voluntary sexual intercourse between a married person and a person who is not their spouse. To establish adultery as grounds for divorce, the provision of evidence that the adulterous act has occurred is essential.

The party filing for divorce (the pursuer) must prove that their spouse committed adultery. Leading to a fundamental breakdown of the marriage. While adultery can be a compelling reason for divorce, it’s crucial that this legal avenue is approached with care, due to the burden of proof lying with the pursuer.

Unreasonable behaviour

Another ground for divorce in Scotland is unreasonable behaviour. This encompasses a range of behaviours that make it intolerable for the spouses to continue living together. Behaviours include verbal or physical abuse, addiction issues, financial irresponsibility or any conduct that seriously undermines the marital relationship.

The pursuer must present a detailed account of the unreasonable behaviour when filing for divorce. The court assesses the severity and impact of the behaviour to determine whether it justifies the irretrievable breakdown of the marriage.

Non-cohabitation for one year (with consent)

Couples who have lived separately for a continuous period of one year,may seek divorce on the grounds of non-cohabitation, if consent from both parties is achieved. This option provides an amicable pathway for couples who mutually agree that their marriage has broken down irretrievably. Consent from both parties signifies a shared understanding that their separation is conducive to a healthier resolution. The pursuer must submit evidence to the court that they have lived apart for the specified duration and that both parties consent to the divorce.

Non-cohabitation for two years (without consent)

For couples who have been living apart for a continuous period of two years mutual consent is not required for separation. Unlike the one-year separation with consent this option relies on the basis of a two-year separation, without reconciliation attempts, is demonstration that a sufficient breakdown in the marriage has occurred. The pursuer must provide evidence of the extended separation period when filing for divorce. The court will scrutinise the timeline to ensure compliance with legal requirements.

In Summary…

Navigating the legal landscape of divorce in Scotland requires a sharp understanding of the procedures and criteria set forth by the Divorce (Scotland) Act 1976. Whether opting for the Simplified Divorce Procedure or the more complex Ordinary Divorce Procedure, it is crucial to approach the process with diligence. If necessary, always seek the guidance of a qualified solicitor to ensure compliance with Scottish law.

This brief guide provides the key details of separation and divorce in Scotland. If you would like to obtain more detail and seek specialist guidance and advice, please contact us here today with details of your query. Alternatively read some of our FAQ’s about divorce in Scotland.