Divorce is the formal legal ending of a marriage through court action. The partner who is applying for the divorce is the pursuer and the other partner is the defender.
To ensure that the court has jurisdiction to dissolve the marriage both parties have to satisfy the residence rules.
Although the detail is more complex, the general rule is that at least one spouse has to be resident or domiciled in Scotland at the time the divorce proceedings are being initiated.
Five grounds for divorce
A divorce can only be granted if a marriage has irretrievably broken down or an Interim Gender Recognition Certificate has been issued to either spouse. To prove that the marriage has irretrievably broken down to the court the pursuer must be able to satisfy the court that one of the following grounds has occurred:
- The defender has committed adultery and the pursuer finds it intolerable to live with the respondent as a married couple
- The defender has behaved in such a way that the pursuer cannot reasonably be expected to live with them
- The parties to the marriage have lived apart for a continuous period of at least one year immediately preceding the divorce petition and the defender consents to the decree being granted
- The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition
- An interim gender recognition certificate has been issued to either spouse
Legal Separation
Legal separation means you remain legally married or in a civil partnership but no longer have the same responsibilities to each other. In England & Wales it is often referred to as ‘judicial separation’.
Why you might consider legal separation
- It allows you time apart to decide if ending the marriage or civil partnership is what you really want
- If divorce is at odds with your religious beliefs
- If proving that your marriage or civil partnership has ‘irretrievably broken down’ is difficult
- If you have been married less than a year
You can ask for a legal separation for the same reasons that you could choose to file for divorce or dissolve a civil partnership. Legal separation does not legally end a marriage or civil partnership, instead you get a decree or order from a court which shows that you have legally separated. Whilst legally separated you cannot remarry or enter into a new civil partnership.
The Divorce Process
The application for divorce is usually made in the local sheriff court but depending on the complexity of the case it can also be made in the Court of Session.
There is a choice of procedures and the circumstances of the individual divorce will determine whether the ordinary divorce procedure or a simplified, so-called DIY procedure can be used. Any divorce that includes arrangements for children under the age of 16 and the settlement of financial assets has to follow the ordinary procedure. The ordinary procedure also has to be used in any defended divorce action.
In a defended divorce one partner resists the action and raises a defence against the divorce being granted. In an undefended divorce both partners accept and consent to the divorce being granted.
Apart from the residence rules certain other conditions have to apply to be able to use the simplified procedure:
- The divorce has to be on the grounds of one year separation with consent or two years separation without consent.
- There must be no children of the family that are younger than 16.
- Neither partner can make an application to the court for financial maintenance either as a regular payment or as a lump sum
- There must be no other current legal proceedings to dissolve the marriage.
- Both partners have to be of sound mind.
The relevant forms can be obtained from the local sheriff court or the Court of Session in Edinburgh.
Mediation
If there are difficulties agreeing on specific issues such as arrangements for children or financial matters during the divorce proceedings then family mediation can assist in resolving disputes. There may still be a need for legal advice and support of interests to ensure all rights are protected.
Collaborative Family Law
Collaborative family law is another option and can help couples resolve any disputes they have and to reach decisions they both agree on. Separating couples and their respective lawyers all meet together to reach solutions rather than going to court. The aim is to make the process of separation and divorce both less traumatic and less expensive.
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