SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds for Divorce In Scotland, there are two grounds for divorce. The pursuer (applicant) either is required to establish that the marriage has broken down irretrievably, or parties can apply for divorce where one party has been issued with an inter - im Gender Recognition Certificate. Irretrievable breakdown can be established by any one of the following: • the defender’s (non-applicant spouse) unrea - sonable behaviour since the date of the par - ties’ marriage; • the defender has committed adultery since the date of the parties’ marriage; • the parties have lived separately for one year or more, and the other party consents to the divorce; or • the parties have lived separately for two years or more, in which case consent of the other party is not required. The same grounds apply for divorce of same-sex couples. However, adultery is not a means by which to establish irretrievable breakdown as it is for heterosexual couples. In Scotland, termination of a civil partnership is known as a dissolution and the grounds for dis - solution are the same as the grounds for divorce. However, as with same-sex couples, adultery is not a means by which to demonstrate irretriev - able breakdown for dissolution, owing to its defi - nition. Process and Timeline for Divorce While parties are not required to attend court where a divorce is uncontested, in Scotland par -
ties do have to commence court proceedings to obtain a divorce. Where no financial orders are sought, and if there are no children under the age of 16, par - ties can apply for divorce using the “simplified divorce procedure”. The applicant is required to complete a form and, if divorce is sought on the basis of one year’s separation, their spouse must signify their consent. The form is then submit - ted to the court and divorce tends to be granted within a few months. Where spouses do not meet the criteria for the simplified divorce procedure, or where there remains dispute over financial or child-related matters, full divorce proceedings must be raised. Legal pleadings are prepared, and issued by the pursuer specifying the orders sought. Once served, the defender has strict time limits with - in which to defend the action, and lodge their pleadings setting out the basis of opposition. If the action is undefended, the pursuer can ask the court to grant divorce by submitting a “minute” and other supporting documentation to include affidavits, following which the court should grant the divorce within a few months. Where defences are lodged, and the divorce proceeds are contested, the court will ultimately fix a full evidential hearing, known as a proof, to consider the matters in dispute. In terms of the likely timeline for a contested action, much will depend on the availability of the relevant court and the nature of the issues in dispute; how - ever, this will generally take between one and two years to conclude. Rules for Service of Divorce Proceedings Sheriff court The initial writ (the initiating document that sets out the detail of the claim in ordinary civil
251 CHAMBERS.COM
Powered by FlippingBook