What is the divorce process in Scotland?
The divorce process is the legal method for formally ending a marriage in Scotland. It generally follows one of two paths: the 'simplified procedure' (often called a 'DIY divorce') or the 'ordinary procedure'. Which path you take depends on your circumstances, especially whether you have children under 16 and whether your divorce is based on separation or 'fault'.
How do I start a divorce in Scotland?
Before you can apply for divorce, you need to meet two key conditions: jurisdiction and grounds.
Checking if you can divorce in Scotland
You can't just decide to get divorced in Scotland. You (or your spouse) must have a connection to the country. The Scottish courts must have jurisdiction (ie the legal power) to hear your case. This is usually established if:
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you or your spouse are domiciled (ie have your permanent home) in Scotland when the application starts
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you or your spouse have been habitually resident (ie lived) in Scotland for at least one year before applying
What are the grounds for divorce?
In Scotland, there are two legal grounds for divorce:
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the irretrievable breakdown of the marriage
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the issuing of an interim Gender Recognition Certificate (GRC) to either spouse
The vast majority of divorces are based on irretrievable breakdown. To use this ground, you must be able to prove it in one of four specific ways (ie adultery, unreasonable behaviour, one year's separation with consent, or two years' separation).
The ground you use is a key factor in deciding which divorce procedure you can apply for. For a detailed explanation of both grounds and the evidence you need for each, read Grounds for divorce in Scotland.
The simplified procedure (DIY divorce)
This is the quickest, most cost-effective, and straightforward method. It's designed for cases where you and your spouse agree, and there are no complex issues for the court to decide.
When can I use the simplified procedure?
You can only use this procedure if you meet all three of these conditions:
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your divorce is based on one year's separation, two years' separation, or the issuing of an interim GRC
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you have no children under 16
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there are no financial disputes to be settled (ie you've either agreed on everything or there's nothing to divide)
What does the simplified procedure involve?
The process is started by lodging an application form with the local Sheriff Court or Court of Session. You don't usually need a lawyer to do this, and you typically won't have to attend court. You'll need to pay a court fee and provide your marriage certificate with the application.
Which form you will need depends on the court you are applying to, whether you wish to bring a marriage or civil partnership to an end, and on which of the above grounds. The relevant forms can be downloaded from the Scottish Court and Tribunal Service website.
The ordinary procedure
This is the more formal and complex court process used for all divorces that don't meet the strict criteria for the simplified route. It's designed to handle cases with children, financial disputes, or divorces based on 'fault'.
When must I use the ordinary procedure?
You must use this procedure if your situation involves any of the following:
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children under 16 (as the court must approve welfare arrangements)
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disagreements about money or property
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your divorce is based on adultery or unreasonable behaviour
What does the ordinary procedure involve?
This procedure is started when one person (known as the 'pursuer') lodges a formal document at court. This is called an initial writ in the Sheriff Court or a summons in the Court of Session.
This document explains the claims being made (eg for financial orders or arrangements for children). It is then formally served on (ie delivered to) the other person (known as the 'defender'), who has a set time limit to respond.
The defender then has 21 days to respond. If they do not send a 'Notice of Intention to Defend' (ie they don't oppose the divorce or the claims), the case is undefended. If they do, it becomes defended.
This procedure almost always requires legal advice. You should Ask a lawyer if you need to use this route.
What happens in an undefended divorce?
If your case is undefended, the process is much simpler and quicker. You typically don't have to go to court.
The court will look at the paperwork submitted by your lawyer, which includes the initial writ (or summons) and affidavits from you and a witness.
Even if the divorce is undefended, the court must be satisfied that suitable arrangements are in place for any children under 16. The court may want to see evidence of this and, in some cases, may want to discuss the arrangements with the children if they are old enough.
Once the court is satisfied, it will grant the decree of divorce and issue a certificate called an extract decree of divorce.
What happens in a defended divorce?
The defender may be defending the divorce because they:
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don't agree to the divorce itself
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don't agree with the reason (eg an accusation of unreasonable behaviour)
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don't agree with the financial or child arrangements being asked for
This makes the process much more complex, lengthy, and expensive. The court will set a timetable, which usually involves a procedural hearing (called an options hearing) to decide the next steps.
If you can't reach an agreement, the case may end in a proof (ie a full trial) for a court to decide on the disputed issues. Even if the court agrees the marriage has broken down, it must still be satisfied that all arrangements for children are appropriate.
If the court agrees to grant the divorce after the hearing, it will issue an extract decree of divorce.
How long does a divorce take in Scotland?
The timescale depends entirely on which procedure you use and how busy the courts are. The typical timescales are:
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simplified procedure - this is the fastest route. Once the court accepts your application, you can expect to receive your decree of divorce within six to eight weeks
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ordinary procedure (undefended) - this takes longer. After the 21-day waiting period, and once you've submitted your affidavits, it typically takes two to four months for the court to process the paperwork and grant the decree
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ordinary procedure (defended) - this is the longest route, and the timescale is unpredictable. A defended case can easily take a year or more to resolve
What about arrangements for children and finances?
Sorting out arrangements for your children and dividing your finances are often the most difficult parts of a separation. Remember, you must use the ordinary procedure if you have children under 16 or need to sort out any financial matters.
For more detailed information, read Child custody in Scotland, Child maintenance in Scotland, Divorce and financial arrangements, and Spousal maintenance.
The divorce process in Scotland can be complex, especially if you need to use the ordinary procedure. If you're unsure which procedure to use or have any questions about your specific situation, don't hesitate to Ask a lawyer. If you want to consider an alternative to divorce, read Separating from your spouse or civil partner.
