Divorce in Scotland

In Scotland there are five grounds upon which to base an action of divorce: adultery, desertion, unreasonable behaviour, separation for two years with the consent of both partners and separation for five years without the consent of the other party.

Where the parties relationship has broken down then that in itself will usually constitute grounds for divorce.

The five grounds are set out below.

Adultery

Everyone knows what adultery is. The law defines it as voluntary sexual intercourse between a married person and a person of the opposite sex not being the married partner. The judicial definition is quite bizarre. Adultery requires 'physical contact with an alien and unlawful sexual organ.'

One of the difficulties with this ground is obtaining the proof. The Scottish Executive propose to get rid of this category altogether.

Desertion

The desertion of a spouse involves leaving your partner for no good reason for a period of two years. This can include living under the same roof but living quite separate lives.

In reality desertion rarely occurs and most people leave their partners for very good reasons. Therefore desertion is not used very often as a ground.

Unreasonable behaviour

Unreasonable behaviour covers the whole spectrum of human existence. The test is a simple one. If you find your partners behaviour such that you could not reasonably be expected to continue to live with him then that is unreasonable behaviour.

The common issues raised by this ground of divorce include financial difficulties, drinking, gambling, violence and the lack of emotional and practical support within the marriage. These are just some of the examples that can be used.

One years Separation with Consent

Where parties have lived apart for one year or more, one of the parties can raise an action of divorce with the consent of the other party.

This is an example of a no fault divorce. It is a ground which is commonly used especially where the parties have resolved their personal difficulties and agreed to an amicable separation.

Two years separation without consent

Where parties have been separated for two years no consent is required. Here the law recognises that where spouses have lived apart for such a considerable period of time, this fact alone suggests that the marriage is finished

Simplified Divorce

An application can be made to your local Sheriff Court for a simple divorce on the last two grounds only on the basis that there are no money issues between the parties and no children under the age of sixteen.

The cost of such a divorce (court fee) is £90 and there is generally no requirement for a solicitor to become involved except to notarise the form.

If you are on Income support the Court or your Solicitor will provide a form which will exempt you from the £90 fee.

There is no need to attend a Court hearing and a divorce can usually be completed in seven or eight weeks.

Normal Divorce Proceedings

Divorces can only be raised in the Sheriff Court or the Court of Session. It is considerably more economic to raise an action in the Sheriff Court.

While it is possible to raise your own divorce proceedings it is advisable to employ a Solicitor. Divorce law is now technical and complex and where contentious issues arise about finances or children then you almost always require legal assistance.

Legal Aid is available but restricted to parties on Welfare benefits and very low incomes.

The cost of filing this divorce procedure is £175.00

Interim Orders

Where issues of urgency arise the Court can make interim orders. These include orders regulating both the care of children and ailment for a spouse. Other orders which can be dealt with very quickly include interdicts and exclusion orders where violence is an issue. In general the Courts no longer deal with child support. This is now the exclusive remit of the Child Support Agency

Only when all the financial aspects of divorce and the care of any children have been resolved can the Courts in Scotland grant a divorce.

Other Orders on Divorce

The range of orders possible on divorce are effectively unlimited but in general regulate two matters: the children and the financial status of the parties to the marriage.

Upon divorce each party is no longer entitled to ailment each other. This obligation may however be continued for a short time after marriage where the court makes an order for periodic allowance to enable a party to adjust to new financial circumstances.

Orders relating to who will have residence of the children and who can have contact to the children can be made. The courts will not make an order relating to the care of the children unless necessary. If the children's care has been arranged satisfactorily between the parties no order will be made.

An order may be made for the sale of the matrimonial home or the transfer of tenancy of the home.

All aspects of the families finances can be regulated including the apportionment of property including the pension's, shares, deposits and other assets.

A deferred order for a capital payment is often considered where the assets are tied up in a pension scheme. The court can 'earmark' pension funds which must be paid out when the pension matures. This prevents the pension holder obtaining his lump sum and not paying some of it over to his ex spouse.

Where there has been violence interdicts (injunctions)

can be granted for defined or indefinite periods of time.



Print this page

Information on this page is current and last updated: 12/03/2008

Call us now on:

Further Information

Divorce Services