Divorce Court Procedure

Divorce Procedure Scotland

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W

hat's involved in getting divorced

 

If you want to get divorced, there are essentially two ways of doing this.  You can use either the SIMPLIFIED PROCEDURE or the ORDINARY PROCEDURE.

 SIMPLIFIED DIVORCE PROCEDURE 

This procedure just involves completing a form and having it notarised after which it has to be sent to the court with the appropriate fee (currently [INSERT]) and your marriage certificate.  You can only use the simplified procedure if firstly, there are no children (or stepchildren) under the age of 16; secondly, there are no outstanding financial issues between you and your spouse; thirdly, your spouse must not be suffering from a mental illness; and fourthly, you have to have been separated for the required period.  That means either one year if you’ve got your spouse’s agreement to divorce or two years if you don’t.

ORDINARY DIVORCE PROCEDURE 

If you can’t use the simplified procedure, then your lawyer will have to apply for divorce on your behalf using this procedure.  This means your lawyer will have to draw up a divorce summons, pay the required fee to the court – currently [INSERT] and then serve the summons once the papers have been approved by the court. 

There are five grounds of divorce, the first three of which depend on periods of separation of one or two years as applicable.  1. Desertion – in this case you can apply for divorce after two years if you can show that your spouse left the family home two or more years before applying for divorce, and that you’ve not refused a reasonable offer to get back together again.  This ground of divorce is pretty uncommon now because those couples who have been separated for more than a year usually agree to a divorce which requires a shorter period of separation.  2. Separation for a year or more with consent - in this case you just have to satisfy the court that you have been separated for more than a year and that your spouse will consent.  3. Separation for two or more years without consent – this is clearly self-explanatory.  The required waiting period was shortened by the Scottish government recently from five years to two now.  4. Unreasonable behaviour – this ground is again relatively self-explanatory.  It doesn’t require any waiting period but you do have to satisfy the court that you can’t reasonably be expected to carry on living with your spouse because of their behaviour.  The commonest examples are violence, excessive drinking, drug taking, gambling and so on.  5. Adultery – again this is self-explanatory – the problem though is one of proof.  You have to prove that your spouse has actually been unfaithful – so the question is can you prove it?  It’s a requirement in all cases of divorce that the court must see evidence from an independent source – someone or something beyond the spouses themselves.

 DEFENDED AND UNDEFENDED DIVORCES IN SCOTLAND 

The timescale for divorce where there’s no opposition is on average about three months from drafting of the court summons to the obtaining of decree.  Where there’s no opposition, after the summons is served, there’s a required waiting period of 21 days (although your spouse can waive that).  Once the 21 days is up, your lawyer will then have to draft sworn statements to be signed by you and your witness speaking to the facts relied on for divorce.  Those sworn statements (affidavits) then have to be returned to the court with another fee (currently [INSERT]) after which the sheriff reads the papers and assuming he/she is happy with the information provided, divorce should then be signed off.

DEFENDED DIVORCES 

It is extremely rare for divorce to be contested on the merits.  Any lawyer would advise their client that there’s no percentage in fighting over the reason for the breakdown of the marriage.  Therefore most couples end up arguing over issues relating to their children or financial matters. 

 

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Divorce Court Procedure