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Divorce in Scotland

A Brief Guide

Courts

Grounds

Pre-conditions for divorce

Types of divorce procedure

Courts 

An action of divorce can be taken in either the Court of Session in Edinburgh or in any of the Sheriff Courts throughout Scotland. 

Grounds 

There are 4 grounds of divorce. 

1. Adultery-sexual intercourse with a person of the opposite sex 

2. Unreasonable behaviour - there is no laid down criteria as to exactly what does and doesn't come under this heading. It may be, for instance, excessive drinking or physical and mental abuse but, in all cases, evidence will require to be led in open court and the facts proved. 

3. A separation for one year with consent of your spouse. 

4. Separation for two years. No consent is required. 

Pre-conditions for divorce 

Before a court will grant a divorce, either you must have agreed all outstanding issues relating to money, property and children or the court should have decided these matters for you. 

If you have agreed all of these matters, beforehand, then the easiest form of divorce to achieve is either 3 or 4. 

Types of divorce procedure 

There are two types of divorce. 

1. Do it yourself procedure. 

If there are no children under 16, the grounds are separation (Grounds 3 and 4 above) and there are no outstanding issues of finance, property and children, then the divorce can be achieved under the do it yourself procedure. This is both cheap and easy. You obtain from the nearest Sheriff Court a paper application form or download the form from www.scotcourts.gov.uk. The procedure is slightly different for the two types but, in essence, the steps involve filling in the form and signing it, swear an affidavit on the form before a Notary Public and submitting it to the court with the fee and your marriage certificate. Divorce follows, usually, within days or, at most, weeks. 

2. Ordinary procedure.  

Where there are children under 16, the divorce is for adultery or unreasonable behaviour or if there are outstanding issues of finance, property and children which you require the court to decide upon, you must use this very formal procedure. 

Although, theoretically, you are entitled to take such an action yourself as a "party litigant", there are few souls brave enough to do so since the court rules are very extensive and extremely complicated. Even qualified Solicitors who do not deal with court matters, day in and day out, fear to tread! Anyone who has witnessed a party litigant struggling in court has to have sympathy. 

Only you, personally or qualified lawyers are entitled to commence your divorce action. The thinking behind this is that the courts do not want proceedings held up by folk who are not trained and such “barrack room lawyers” are not insured nor have a complaints procedure.  

Within the Ordinary divorce procedure there are two sub-procedures. 

a) defended actions - where the parties just cannot agree, they put their case before the Sheriff. There are pleadings to be drawn up and once the case comes before the sheriff, witnesses appear in person and give evidence. 

b) undefended actions, utilising the affidavit procedure - where the parties agree and/or have a Separation Agreement, the procedure is somewhat more streamlined. 

This is the procedure that MyScottishDivorceSM specialises in.

An Initial Writ (a document, in particular form, recognised by the court as originating proceedings) is prepared and signed, the court fee is paid submitted to the court.

This document asks the court to grant a divorce. Importantly, unlike other procedures, the document does not ask the court to award expenses. This means that the cost of the divorce falls on the the person raising it (unless they can persuade their spouse to pay for a part or all of it, voluntarily).

The court grants a warrant to serve the Initial Writ. The action is served upon the Defender (your husband/wife) by a Solicitor.

To speed things up, the Defender can choose to accept service and dispense with the period of notice (21 days). He or she will only do this if they want a divorce and would prefer it sooner, rather than later.

If they do neither of these, after the 21 day period and, assuming no defence, the case proceeds with evidence presented in the form of Affidavits (sworn statements).

These, together with other documents are submitted to the court in a particular way. Assuming that the Sheriff is satisfied with the information provided, no personal appearance will be required by you and decree of divorce is granted. Where the Sheriff is not satisfied, he or she can either call for more information by way of affidavit(s) or require your personal attendance at the court to give evidence in the witness box.   

Disclaimer: The information on these pages is necessarily general and commonsense dictates that you should take legal or other advice before acting upon it. No solicitor/client relationship is created by the reading of the pages.

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