I’m applying for a divorce – what do I need to know?

It is unfortunate that some marriages do not survive long-term, and some couples will split up and divorce. Divorce requires the involvement of the court and there is a process that you will need to follow. Here’s what you need to know about getting a divorce in Scotland:

How do you apply for a divorce in Scotland?

One spouse or the other needs to complete and submit a divorce application to the court. They must prove their marriage to the other person has broken down irretrievably, according to one of the accepted grounds for divorce.

These are:

• You have been separated one year, and both parties consent to the divorce
• You do not have your partner’s consent, but have been separated for two years
• You can prove your partner has committed adultery
• Unreasonable behaviour
• If one of the parties has been issued with an interim gender recognition certificate, you can also apply for a divorce on that basis.

There are two ways to get a divorce in Scotland: the ‘simplified procedure’ and the ‘ordinary procedure’. Which divorce you are able to obtain depends on your circumstances.

Simplified divorce

You can apply for a simplified divorce (sometimes known as a DIY divorce) if you have been separated from your partner for one year, and they consent to the divorce. If they do not consent, you need to be separated for two years.
You will need to complete a form and lodge it with the court and neither party has to appear in person. If the defender is happy with the terms of the divorce, the court will consider the application and, if successful, the court will grant a ‘decree of divorce’.
However, you can only apply for a simplified divorce if there are no children under the age of 16, and if the spouses are not seeking financial provisions.

Ordinary divorce

If you have children under the age of 16 or financial issues that need to be resolved, then you will have to apply for an ordinary divorce. This will involve a solicitor, who will collect evidence to support the grounds for your divorce, draw up a document which sets out these out, and it may lay out any orders relating to money, property, and children.

Both yourself and a supporting witness will be asked to submit sworn statements, known as Affidavits regarding the grounds for divorce, after which, if the divorce is uncontested, means your divorce will be granted.

If your former partner contests the writ, then the court becomes involved in the arrangements for your children, property and money and your divorce becomes more complicated.

How long does a divorce take?

Unfortunately, there is no guaranteed timescale for how long a divorce will take. A simplified divorce can take around eight weeks. An ordinary divorce which is uncontested can take a number of months. Cases, where money, property or children are contested, take significantly more time – and require more involvement from a solicitor.

McSherry Halliday has a team of expert family law solicitors who are able to help you through this difficult time with their compassion, professionalism and trusted advice. If you’d like to find out more about applying for a divorce in Scotland, our firm is happy to help.