Thinking about getting a divorce?
Last updated: 28/10/2020
If divorce is something you are thinking about there are a few things to consider.
Grounds for divorce
There are two legal grounds for divorce in Scotland: the marriage has broken down irretrievably, or an interim gender recognition certificate has been issued to either party after the date of marriage and the other party does not consent to the marriage continuing after a full gender recognition certificate has been issued.
- Irretrievable breakdown of a marriage can be established in one of four ways:
- Unreasonable behaviour
- Separation for at least one year where both parties consent to divorce
- Separation for at least two years where there is no mutual consent.
The date of separation, known as the relevant date, is very important when it comes to divorce. It is the date when a married couple actually separate from each other. This usually means that you start living in different accommodation but you can also live separately under the same roof. Most significantly, it is the date when matrimonial property is valued for separation/divorce purposes. It is also the date used to determine one or two years separation if this is being used for grounds for divorce.
Forms and guidance notes can be found on the Scottish Courts website:
The cost of a divorce
A divorce action can cost anywhere from around £130 to £6,000 or more. How much it costs will depend on a variety of factors like whether the divorce is defended or not, whether there are disputes over money, property or children, whether welfare reports are required and the number of solicitors involved in the case.
If there are no children of the marriage under the age of 16, and no financial matters to sort out, you may be able to use the simplified or “DIY” divorce procedure if certain other criteria are met.
Where there are children of the marriage under the age of 16 it will be necessary to apply for divorce using the “ordinary procedure”. Obtaining an ordinary divorce will be more costly than a simplified divorce even if there are no financial or child-related matters to be sorted out.
The divorce process
In an undefended divorce, where there are no disagreements over arrangements for children or finances, affidavit evidence (a signed statement made on oath) from two independent witnesses will need to be lodged with the court in support of the divorce application. The affidavits must contain confirmation of the date of separation and details of the arrangements which are in place for the children. In a defended divorce action, in which there are disputed issues regarding the finances and/or the children, additional hearings may be necessary to reach an agreement on these issues. The sheriff will then make a binding decision based upon the evidence heard.
You and your ex-partner can decide between you how to meet the legal costs of a divorce. If you cannot agree, then the court will decide who pays. The court has complete discretion to order either party to pay all of the costs. If the court decides not to make an order for costs, then each party is responsible for their own legal costs.
Minute of Agreement
It is common for couples to reach an agreement on matters such as financial provision, where the children will live, contact arrangements and sharing of property, without going to court. The terms that have been agreed will ordinarily be drawn up by solicitors in a formal Separation Agreement known as a Minute of Agreement. Minutes of Agreement are usually registered in the Books of Council and Session, which means they are legally binding, enforceable contracts. If a couple manages to resolve the issues arising from their separation by entering into a Minute of Agreement, the divorce itself should be relatively straightforward. Although an application to the court will still be required there will usually be no need for parties to attend court in person.
Sometimes a couple will reach an agreement only after the divorce is already underway in the courts. In this case, the settlement that is eventually reached is called a Joint Minute of Agreement.