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.
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.
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.
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.
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.