In Scotland grounds for divorce are that the marriage has broken down irretrievably. Irretrievable breakdown of a marriage can be established in one of 4 ways:
- Where the parties have been separated for a period of at least one year, and both parties' consent
- Where the parties have been separated for two years, in which case the other party's consent is not required
- Where the other party has committed adultery
- Where one party cannot live with the other party due to unreasonable behaviour
That you and your spouse have been separated for a period of one year and both consent to the divorce. It is not necessary that you have lived apart as you can separate but remain sharing the same home. If consent is not forthcoming then the separation period must be at least two years. The irretrievable breakdown of marriage can also be established by either adultery or unreasonable behaviour.
In Scotland there are two methods by which a couple can divorce. The first is the Simplified Divorce which you can use only on the grounds of separation, either by one or two years and only if there are no children under the age of 16 years and there are no financial matters left to resolve.
The Simplified Divorce procedure is straightforward and relatively quick taking generally between six and ten weeks. We can assist you with this procedure for a relatively small fee plus the Court fee which is reviewed regularly.
If you cannot use the simplified procedure, it is essential that you seek specialist advice as early as possible. The second is the Ordinary Cause action which requires a Writ to be lodged at the Sheriff Court. This method is necessary where there are disputes regarding children and/or financial matters. It is always best if any financial matters can be negotiated and agreed prior to divorce. It is also best that if parties can agree with whom the children will live and what contact arrangements the other spouse will have. If this cannot be agreed then a Sheriff will be asked to make the appropriate orders and this requires specialist representation which we can provide to you after consultation to fully assess your need.
The matrimonial property is not just restricted to the home in which you live but also includes furnishings, cars, holiday homes and pension funds. The pension fund settlement can be a lengthy and complicated calculation and it is essential that you seek specialist advice before agreeing to any settlement involving a pension fund. It is always best if separating, couples in Scotland can deal with financial settlement by way of a Separation Agreement which would be referred to by the Court as a "Minute of Agreement". This is a binding contract between you and your spouse which can be entered into prior to any divorce being raised making the divorce proceedings more straightforward.
The presumption in Scotland is that all matrimonial property will be equally divided by a 50/50 share although there are a number of arguments which can be advanced to depart from this rule. This could involve the burden of childcare for years to come or who provided the funding for the purchase of the matrimonial home. It is also possible to deviate from the equal share principal if one spouse has given up a career to remain at home looking after the home and children to enable the other spouse to enable the other spouse to advance in their career. Again, this is not a straightforward area of law and does require specialist advice and representation. We can provide such specialist advice and representation after consulting with you.
You should not forget at the point where spouses have separated but not put in place an overall financial settlement or commenced divorce proceedings, there is a duty on the spouse who has the means to do so, to financially support, to a reasonable degree, the other spouse if that spouse is financially dependent. The test applied by the Court for spousal maintenance prior to divorce are completely different to the test applied for the division of the matrimonial property and this should be addressed as soon after separation as possible. It is possible for a spouse to receive spousal maintenance for up to three years from the date of separation or indeed divorce in order to assist them to adjust to their new circumstances. In certain limited circumstances, spousal maintenance could continue over a longer period.