When you get married or enter into a civil partnership, you enter a partnership with specific legal obligations. However, for some, ending the marriage is the only remaining option. If this is the case, you need to go through the correct legal procedure to seek a Divorce or Dissolution. In Scotland, to acquire this, you must meet specific requirements, as well as proving that there is an irretrievable breakdown of your marriage.
The underlying context for a divorce between two parties is that they have reached an irretrievable breakdown of their marriage. An irretrievable breakdown can be proved by the following:
- Both parties agree to a divorce and have been separated for one year.
- One party consents to divorce, but the parties have lived separately for two years.
- If there is adultery
- Unreasonable behaviour.
Once you have decided that there is an irretrievable breakdown of the marriage, you need to prove your eligibility. To be eligible for a divorce in Scotland, you need to meet two requirements:
- You and your spouse/civil partner currently or have previously lived in Scotland for a substantial period and meet the residence rules.
- Have a marriage that is recognised in the UK.
How do you apply for a divorce in Scotland?
Two types of divorce procedures can be used in Scotland to apply for a divorce. These are often referred to as the ordinary procedure or the simplified procedure, also applicable to civil partnership dissolutions. While all applications need to be raised through the sheriff court or Court of Session, the procedures vary in length, forms, fees and complexity.
The Simplified Procedure
The simplified procedure is often called the do it yourself divorce procedure. The costs associated with the simplified divorce is significantly less than those of an ordinary divorce. However, the simplified procedure can only be used in some instances, in which you must meet the requirements below:
- You are applying for divorce/dissolution because of the irretrievable breakdown of your marriage/partnership based on one-year separation with consent or two years separation without consent, or because of the issue of an interim gender recognition certificate;
- There are no children of the marriage/partnership under the age of 16;
- There are no financial matters to sort out;
- There are no signs that you, or your spouse or civil partner, cannot manage your affairs because of mental illness, personality disorder or learning disability.
- There is no other court proceedings underway which might result at the end of your marriage / civil partnership.
If you meet the above requirements, you will then need to file the appropriate paperwork. The paperwork will vary depending on if you log your divorce filings in The Sheriff Court or The Court of Session. However, for both courts, the application form will require that the parties sign an Affidavit. An Affidavit is a verified legal document this will need to be sworn before either a Justice of Peace, Notary Public or Commissioner for Oaths. It is worth noting, that while the documents need to be lodged with The Sheriff Court or The Court of Session, the parties will not need to appear in Court.
If you do not meet any of the criteria needed to proceed with the Simplified Divorce, you will need to follow the ordinary procedure. If this is the case, we recommend that you get in contact with a member of our legal team at [insert name here] for advice as the procedure can be more complex
The Ordinary Procedure
The ordinary procedure is much more complicated than the simplified one. Unlike the simplified procedure, there is no set application form, the proceedings begin with an initial writ, a document requesting a divorce being lodged in Court by the pursuer’s solicitor. The document is then served to the other party, the defender, in which they will have 21 days to respond and decide on the following:
- Whether they wish for it to proceed or object
- Whether they want to claim financial provision
- Whether they should seek an order concerning any children from the marriage
Both parties should agree regarding finances, care of children and other assets, entering into a Minute of Agreement before seeking a divorce. If the terms can be agreed upon before the divorce filing, it can reduce both the time and costs involved.
If the defending party agrees with the proposal suggested by the pursuer, then the case is undefended. However, if the defender objects the case will be recognised as defended and the process beings more complex. We strongly suggest that you seek legal advice for ordinary divorce procedures, as they are more complex.
How much will divorce cost?
Although the divorce fees vary depending on whether you are using the simplified or ordinary procedure, a simplified divorce cost will be significantly less than an ordinary divorce.
This is also the case for the court fees that will vary on whether you lodge your paperwork with the Sheriff Court or The Court of Session. You can find further information on their websites. However, you may be entitled to fee exemptions if you receive certain state benefits.
How long will a divorce take?
A simplified divorce will usually take about two to three months. For Ordinary Divorces and those with contested cases where dividing finances, children, property and other assets are involved, are likely to take closer to a year.
When applying for divorce, it is best to obtain legal advice, especially if thee are financial matters to be resolved. Once a divorce has been finalised, it will be virtually impossible to seek any provisions. At Qredible.co.uk, our divorce solicitors are here to help you better understand the process and help you decide what the right route is for you and your future.
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