Divorce is never easy, but understanding the steps, and having professional guidance, can help make the process more manageable. This blog will walk you through how to begin divorce proceedings in Scotland, outline the different processes depending on your circumstances and highlight things you should be aware of. Our aim at d and h is to give you clarity so you can move forward with confidence.
1. Establishing the Grounds for Divorce
In Scotland, you cannot ask for a divorce on a whim; you must show that the marriage has broken down irretrievably and there is no prospect of reconciliation. This is evidenced by one of the following grounds:
- Adultery by one spouse.
- Unreasonable behaviour (behaviour making it unreasonable for one spouse to live with the other).
- One year’s separation with the other spouse’s consent.
- Two years’ separation without the other spouse’s consent.
Understanding which ground applies to your situation is a key first step.
2. Simplified Divorce Procedure
If you and your spouse have agreed matters in relation to the division of your finances and have no children together who are under the age of 16 years’ then you can use the simplified divorce procedure at your sheriff court provided you have been separated for a period exceeding one year (and your spouse consents to the divorce) or have been separated for a period exceeding two years and your spouse has not provided consent.
It is an administrative process. An application is made and lodged with the court along with the extract marriage certificate. The court serve (that is send) the papers on your spouse and if there is no objection the divorce should be granted.
At d and h, our family law team emphasises finding an amicable resolution where possible, which aligns well with this simpler route.
3. Ordinary Divorce Procedure
If you have agreed you financial position and the child care arrangements but have children under 16 years old you will need to use the ordinary divorce procedure. Again you need to have been separated for a period of one year (and your spouse consents which is common where all matters have been agreed) or two years if your spouse does not consent (which is more unusual here as it is unlikely the child care and/or finances are agreed if a spouse is not consenting).
An full court application known as an initial writ is drafted by your solicitor. This is served on your spouse. They have 21 days to defend the application and if they do not then a minute for decree is lodged with the court. The court also requires two affidavits, one from you and one from a third party who can speak to the marriage being over, the period of separation, the finances being agreed and the children being well cared for in the circumstances.
It is likely you will need legal representation. The court will want to satisfy itself about the arrangements for children and the division of assets before granting the divorce. The process does take longer and is more expensive than a simplified divorce but is still largely administrative and should not require a court appearance by you or your solicitor.
4. Contested Divorce
Where negotiations have failed and parties cannot reach agreement in relation to either the children or the finances or both, then one party usually raises court proceedings. You must establish a ground for divorce (and it cannot be that you have been separated for a year as the other party needs to consent to the divorce when pleading the ground of one year’s separation) and ask the court to grant divorce based on that ground. In addition you would be seeking that the court make a financial order/s in your favour and/or orders relating to your children.
Contested divorces can take a long time ranging from months to years and can be very expensive. Ultimately an evidential hearing known as a proof is needed and then the sheriff can make a decision. Only once a decision has been made about the finances and/or the children will the sheriff grant the divorce on one of the established grounds.
5. What You’ll Need to Consider (and Watch Out For)
Even when a divorce is not contested, there are important matters to keep in mind:
a) Children. If there are children under 16, the court will scrutinise arrangements for their care and welfare. and cannot apply for a simplified divorce.
b) Finances, Property and Matrimonial Property. Scottish law treats the assets acquired during the marriage as matrimonial property, all of which are to be divided fairly (not necessarily equally) on separation.
c) Timing. Even in straightforward cases, the timeline will depend on the separation period, the agreement between parties and the court workload.
d) Jurisdiction – you must ensure that the court you are applying to has jurisdiction to hear your case. Where there are cross border issues between Scotland and England or Wales, the place where the parties last lived as a married couple (that is either in Scotland or England and Wales) will have precedent.
Divorce in Scotland need not mean years of court appearances and endless disputes. If you and your spouse can agree on the key issues (children, finances, property), then the process can be relatively straightforward. But without that agreement, or when children or assets are involved, the route becomes more complex. At d and h we assist clients in both scenarios, aiming always to secure a fair and efficient outcome.
If you’d like to discuss your case with our knowledgeable family law team, please get in touch. We can help you chart the right path forward towards resolution, clarity and a fresh start.
This blog is intended for general information only and does not constitute legal advice. For advice tailored to your specific circumstances, please contact .