21

Divorce

A common question we are asked as family lawyers is how quickly someone can get divorced. Divorce is rarely immediate. Contrary to popular opinion, it does not happen automatically and requires to be granted by the Court after a Court process.

So, what should you bear in mind before applying for a divorce, what are the divorce grounds and what does the divorce process entail?

Loss of rights

Before considering whether to apply for a divorce, it is essential that you understand that the consequences of the divorce being granted include losing (1) the right to seek financial provision from your spouse, (2) rights of succession to your spouse’s estate and (3) other rights relating to property and pensions. Therefore, it is advisable to consult a Solicitor first. If there are outstanding financial matters to address, it is likely that you will be advised, where possible, to enter into a Minute of Agreement (Separation Agreement) with your spouse before proceeding with divorce. Where there is a signed Minute of Agreement regulating financial matters, the divorce process should be considerably cheaper and more straightforward.

Divorce Ground

The main ground of divorce in Scotland is that the marriage has broken down irretrievably. This is set out in the Divorce (Scotland) Act 1976. This will be established if:-

• Since the date of the marriage, the Defender (the person against whom the action is raised) has committed adultery, or;
• Since the date of the marriage, the Defender has at any time behaved in a way that the Pursuer (the person raising the action) cannot reasonably be expected to cohabit with the Defender. This is commonly known as the “unreasonable behaviour” ground, or;
• There has been no cohabitation between the parties at any time during a continuous period of one year after the date of the separation and immediately preceding the raising of the action and the Defender consents to the divorce being granted. There is a Consent Form prescribed in the Court Rules which the Defender requires to sign to evidence consent, or;
• There has been no cohabitation between the parties at any time during a continuous period of two years after the date of the separation and immediately preceding the raising of the action. Consent of the Defender is not required in this case.

Under Scots Law, adultery has a very specific meaning. The onus is on the Pursuer to prove in (a) adultery or in (b) unreasonable behaviour. This may be more difficult than it seems and therefore, unless the order for divorce is required urgently, it is generally more straight forward to rely on one of the periods of separation, (c) or (d) above, known as “no fault” grounds to establish the irretrievable breakdown of marriage, than one of the “fault” grounds.

Divorce Process

The focus of this Article is on divorces which are not opposed or defended by the other spouse. If the action is defended, a different process is followed. The most common reasons for defending the divorce action are that there are outstanding financial or child-related matters to address or the irretrievable breakdown of marriage is not established.

If there are no outstanding child-related or financial matters to address, the divorce process to be used will depend on how the irretrievable breakdown of marriage is being established and whether there are children of the marriage under sixteen years of age.

• Ordinary Cause

If the divorce is proceeding based on adultery or unreasonable behaviour and/or there are children of the marriage under sixteen years of age, the divorce is initiated by way of an Initial Writ which is lodged at Court for warranting with the relevant Marriage and Birth Certificates. Once warranted, the Initial Writ and Warrant (and a Consent Form if required) is formally served on the other spouse, who then has a set period of time (prescribed in the Court rules) to notify the Court if they wish to defend the divorce action. If the action is not defended (and any required Consent is provided), the next step is for the Pursuer and a supporting witness to sign Affidavits (sworn statements) to lodge with the Court. The contents of the Affidavits are well-established and typically include evidence relating to the breakdown of the marriage and the date of separation, the care arrangements for any children, their progress at school and interests, their living arrangements and any health conditions. If adultery or unreasonable behaviour are being cited, additional proof may be required, such as a satisfactory Report from a Private Investigator. Once signed, the evidence is lodged with the Court together with the Minute for Decree ( the formal request to the Court to grant the divorce). If the Court is satisfied that the marriage has broken down irretrievably, there are no outstanding financial claims and there are no concerns about the arrangements for the children, the Court will grant the divorce and an Extract Decree of Divorce will be issued thereafter. For an undefended divorce under the Ordinary Cause Procedure, the process usually takes around 8 to 12 weeks.

• Simplified Procedure

If the divorce is proceeding based on a period of separation and there are no children of the marriage under sixteen, the Simplified Divorce Procedure may be used. Once the Applicant has completed the Form and the spouse has completed the Consent Form (if applicable), the Applicant requires to swear the contents of the Form in the presence of a Justice of the Peace or Notary Public. At this point, the Form is lodged with the Court with the Marriage Certificate. The court will formally serve the Application on the other spouse who will have the same period of time as in an Ordinary Cause divorce to notify the Court if the Application is opposed. Again, if there is no opposition to the Application, the divorce will be granted if the Court is satisfied that the Form has been properly completed, and the Extract Decree of Divorce will follow. If the Application is opposed, it will not proceed any further and the Applicant will require to consider whether to raise a new action under the Ordinary Procedure and/or seek to address the reasons for the Application being opposed. A divorce under the Simplified Procedure is intended to be quicker and less expensive than a divorce under the Ordinary Cause Procedure.

If you wish to enquire about a divorce, please do not hesitate to contact one of our experienced family lawyers.