Divorce in Scotland is regulated by the Divorce (Scotland) Act 1976 as amended by the Family Law (Scotland) Act 2006, which provides two legal grounds for divorce: the “irretrievable breakdown of the marriage” or where one party has undergone gender reassignment surgery and obtained an interim gender recognition certificate.
The irretrievable breakdown of a marriage can be established on the basis of the other party’s adultery or unreasonable behaviour, separation for one year with the consent of both partners, or separation for two years without the consent of the other party.
The law defines adultery as voluntary sexual intercourse between a married person and a person of the opposite sex not being the married partner. An old judicial definition of adultery is ‘physical contact with an alien and unlawful sexual organ.’
This used to be the most common ground of divorce until the time periods for separation were reduced from two and five years.
Unreasonable behaviour covers the whole spectrum of human condition. The test is a simple one: if you find your partner’s behaviour such that you could not reasonably be expected to continue to live with him or her then that is unreasonable behaviour.
The common issues raised by this ground of divorce include financial difficulties, drinking, gambling, violence and the lack of emotional and practical support within the marriage. The list is not exhaustive nor is it closed.
Where parties have lived apart for one year or more, one of the parties can raise an action of divorce with the consent of the other party.
This is a practical example of a no fault divorce. It is a ground which is commonly used especially where the parties have resolved their personal difficulties and agreed to an amicable separation.
Where parties have been separated for two years no consent is required. Here the law recognises that where spouses have lived apart for such a period of time, this fact alone establishes the irretrievable breakdown of the marriage.
A simplified divorce process is available where the grounds of divorce are one or two years separation, there are no children of the marriage under sixteen years and there are no financial claims. Forms for a simplified divorce are available at your local Sheriff court. The Sheriff clerk will provide assistance in completing the form.
Divorces can only be raised in the Sheriff Court or in the Court of Session. It is considerably more economic to raise an action in the Sheriff Court. High value actions are often, but not necessarily, initiated in the Court of Session.
Divorce law is now technical and complex and where contentious issues arise about finances or children then you almost always require expert legal assistance.
Where issues of urgency arise the Court can make interim orders. These include orders regulating both the care of children and aliment for a spouse. Other orders which can be dealt with very quickly include interdicts and exclusion orders where violence is an issue. For more information see the sections on Children, Financial Orders and Matrimonial Interdicts. In general the Courts no longer deal with child support. This is now the exclusive remit of the Child Support Agency.
Only when all the financial aspects of divorce and the care of any children have been resolved will the Courts in Scotland grant a divorce.
The range of orders possible upon divorce is in general designed to regulate two matters: the children and the financial status of the parties to the marriage.
Upon divorce each party is no longer entitled to aliment each other. This obligation may however be continued for a short time after marriage where the court makes an order for periodic allowance to enable a party to adjust to new financial circumstances.
Orders relating to who will have care and control of the children and who can have contact with the children can be made. The courts will not make an order relating to the care of the children unless it is necessary. If the children’s care has been arranged satisfactorily between the parties no order will usually be made or indeed be considered to be necessary.
An order may be made for the sale of the matrimonial home or the transfer of tenancy of the home.
All aspects of the family’s finances can be regulated including the apportionment of property including the pension(s), shares, deposits and other assets. The most usual way of dealing with this is by an order for a capital sum to be made to be paid to one of the spouses.
A deferred order for a capital payment is often considered where the assets are tied up in a pension scheme. The court can ‘earmark’ pension funds which must be paid out when the pension matures. This prevents the pension holder obtaining his lump sum and not paying some of it over to his ex-spouse. Pension sharing orders are also competent.
Where there has been violence interdicts can be granted for indefinite periods.
A divorce means that the legal relationship between the parties has come to an end. The only shared obligation the parties generally have after divorce will be to the children of the marriage. All rights in property or for inheritance purposes are dissolved by a divorce. Ex-spouses are single and entitled to remarry. The obligation to financially support your children is not affected by divorce.
To contact us for an appointment please call or e-mail our family lawyer Colette Kerr on 0141 404 1091 or [email protected]. For general queries surrounding any family law matter please fill out our online enquiry form.