Divorce in Scotland

The five grounds are summarised below.

The desertion of a spouse involves leaving your partner for no good reason for a period of two years. This can include living under the same roof but living quite separate lives.

For all practical purposes desertion rarely occurs and most people leave their partners for very good reasons. In a way this ground is detached from everyday life and one wonders at its purpose.

This is the most common ground of divorce as it reflects most people's experience of an unhappy marriage and does not require lengthy periods of living apart before you can go to court.

This is an 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.

An application can be made to your local Sheriff Court for a simple divorce on the last two grounds only on the basis that there are no money issues between the parties and no children under the age of sixteen.

The cost of such a divorce is £56 and there is generally no requirement for a solicitor to become involved except to notarise the form.

If you are on Income support the Court or your Solicitor will provide a form which will exempt you from the £56 fee.

There is no need to attend a Court hearing and a divorce can usually be completed in seven or eight weeks.

You can apply for divorce using the simplified divorce procedure at this web site. This service is not available anywhere else and will save you hundreds of pounds in Solicitor fees.

Divorces can only be raised in the Sheriff Court or the Court of Session. It is considerably more economic to raise an action in the Sheriff Court.

While it is possible to raise your own divorce proceeding's it is advisable to employ a Solicitor. Divorce law is now technical and complex and where contentious issues arise about finances or children then you almost always require legal assistance.

Legal Aid is available but restricted to parties on benefits and very low incomes.

Where issues of urgency arise the Court can make interim orders. These include orders regulating both the care of children and ailment 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 can the Courts in Scotland grant a divorce.

The range of orders possible on divorce are effectively unlimited but in general regulate two matters: the children and the financial status of the parties to the marriage.

Upon divorce each party is no longer entitled to ailment 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 to the children can be made. The courts will not make an order relating to the care of the children unless necessary. If the children's care has been arranged satisfactorily between the parties no order will be made.

An order may be made for the sale of the matrimonial home or the transfer of tenancy of the home.

All aspects of the families 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.

Where there has been violence interdicts can be granted for indefinite periods. unfortunately other orders such as power of arrest are not possible after divorce. This is being reviewed by the Executive.

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. All rights in property or for inheritance purposes are dissolved by a divorce. Ex-spouses are single and entitled to remarry. In the law's eyes, the parties are now entitled to go their own ways and their obligations to each other are at an end.

The general concept of proving fault in divorce proceeding's often results in aggravating the already difficult relationship between separating spouses. This is to nobodies benefit and often results in greater acrimony which can effect both the parties themselves and the children.

We are of a view that the simple concept of irretrievable breakdown should be adopted. This could be simply constituted by a period of separation. The fault grounds of divorce should be repealed.

Unfortunately reform of the divorce laws can result in very powerful interest groups becoming involved. This often slows the process of reform. The divorce laws in Scotland date back to the late nineteen sixties. Much has changed in society since then.

Marriage is considered, rightly, as one of the mainstay's of society and it is often argued that divorce is too easily obtained. It is true that divorces can be simply acquired but we would argue that this is the Court recognizing the right to live your life as you wish within the law.

The European Convention on Human Rights recognizes the right to a family life but this includes the right to move on and establish new family relationships. Unfortunately the divorce laws, by pitting spouses against each other, don't help people move on and by so doing retard the healing process. Divorce is traumatic and often divisive and the adversarial court system we have in Scotland often only makes this worse.

On the 20th of January 2000, Jim Wallace, the Justice Minister announced his intention to review divorce law. This included reducing the time you needed to be apart to divorce to one year with consent and two without. He also suggested scrapping divorce on the grounds of adultery and desertion and having an all encompassing category of unreasonable behaviour.