The basic legislation for a Scottish divorce is contained in the Divorce Scotland Act 1976 which outlines just one ground for taking legal action being the irretrievable breakdown of the marriage. Proceeedings for divorce can be brought in the Sherrif Court provided that one of the spouses is either domiciled in Scotland or has been habitually resident there for a year before the action is started. There is no minimum time bar before legal action can be started and a divorce will be granted by the court if it can be shown that the marriage no longer effectively exists. If the legal action is undefended then neither party has to give evidence personally in court and the case can be proved by submission of affidavits. There are five circumstances which will prove that a marriage has broken down irretrievably as follows :-
- unreasonable behaviour
- desertion for two years or more
- living apart for two years
- living apart for five years
Under the Divorce Scotland Act 1976 a married couple have a legal duty to maintain each other whilst they remain married and following the dissolution of the marriage if they fail to come to agreement about maintenance or finances one party can make an application to ask the court to resolve any disputes. The court can make an order about property settlements, lump sum payments, pensions and payment of maintenance. If the party’s circumstances change in due course then a further application can be made to the court to vary the financial order. It is also possible to come to a voluntary arrangement regarding finances however unless the agreement is registered in the books of Council and Session it will not be enforceable.
The basic principles for the division of finances and property following a Scottish divorce are different to the principles applied in England and Wales. Generally speaking property that was acquired by either spouse during the marriage is divided equally except inherited property however there are certain circumstances where the court may order an unequal division. The courts try where ever possible to arrange a clean break between the parties and this is often achieved by use of court orders requiring capital sums to be paid or property to be transferred between spouses.
It is possible to obtain a Scottish divorce in a very short time period by using a simplified procedure based on two years separation with the consent of both parties or based on five years separation without consent. An application is made to the local Sheriff Court but only on the basis that there are no money issues between the parties and no children under the age of sixteen. The fee of £62 can be waived by the court for applicants who are in receipt of income support and there is no need for the involvement of a solicitor. There is no need to attend the Court hearing and the divorce is usually completed in seven or eight weeks.
Our nationwide network of specialist lawyers will give initial free advice on all matters relating to the Divorce Scotland Act 1976 including dissolution of marriage, separation, injunctions, finance and agreements and court orders relating to custody and access to children without further obligation. If after talking to us you decide not to take matters further you are under no obligation to do so and you will not be charged anything at all.