There are two possible ways of filing for divorce in Scotland - the simplified divorce procedure and the ordinary divorce procedure. Which one you use will depend upon your individual set of circumstances:-
1. Simplified Divorce Procedure.
When both partners in the marriage agree to divorce, including the grounds for divorce, it is said to be 'uncontested'. In this event, it will be possible to use the simplified divorce procedure. You will, however, need to meet the following criteria:-
* You can prove your marriage has broken down irretrievably because you have lived apart for a year (and your spouse consents) or you have lived apart for two years;
* You and your spouse do not have any children under the age of 16. This includes adopted children or children accepted as part of the family (such as step-children);
* You and your spouse have agreed upon the division of assets, financial provision and maintenance payments;
* You or your spouse has lived in Scotland for the past year, or consider Scotland to be your habitual residency;
* You and your spouse do not suffer from any mental problems.
If you do meet the requirements for a DIY divorce, you must first obtain the necessary forms from the local sheriff court. Once completed and signed, you will have to go before a Justice of the Peace (or another authorised person) to swear the facts are correct. The form, along with the marriage certificate and required fee, will then be sent to the local sheriff court.
Once processed, a copy of the divorce application will be sent to your spouse. If uncontested, it will go on to be considered by the court. As long as everything is found to be acceptable, the court will issue an Extract Decree of Divorce, officially terminating your marriage.
2. Ordinary Divorce Procedure.
However, the divorce is contested, you will need to follow the ordinary divorce procedure. You will also need to take this route if:-
* The grounds for divorce are based upon adultery or unreasonable behaviour;
* You have children over the age of 16. Again, this includes this includes adopted children or children accepted as part of the family.
If you want to file for a divorce using the ordinary divorce procedure, you will need to seek legal assistance, as the procedure is more complex. A solicitor will be able advice you on appropriate grounds for divorce, collate evidence and submit an initial writ to the court. This will include reasons for divorce, sworn affidavits, as well as details regarding arrangements for children, finances and assets. If the defender of the divorce and the court are happy, an Extract Decree of Divorce will be issued.
However, if the defender contests the divorce, he/she must send a Notice of Intention to the court. This should be done soon after receiving an initial writ and must state the reasons for defence. A hearing will then be held in the sheriff court, or if there is a large amount of money at stake, it may be transferred to the Court of Sessions. In court the case will be reviewed, with consideration given to the grounds for divorce, arrangements for children and financial provision. If they accept that everything is in order, the marriage can be formally ended and an Extract Decree of Divorce issued.
Author Resource:-
Need specialist Family Law Solicitors Edinburgh?
McKay Norwell are Edinburgh Lawyers serving individual and business clients across Scotland.
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