Divorce is a significant life event that can raise many questions and concerns. At d and h, we understand that navigating the process can feel overwhelming. To help, we’ve compiled answers to some of Scotland's most common questions about divorce.
Whether you’re just beginning to consider divorce or are already separated and going through divorce proceedings, this guide aims to provide clarity and confidence as you move forward.
1. What are the grounds for divorce in Scotland?
In Scotland, divorce can be sought where there has been the irretrievable breakdown of the marriage, evidenced by one of the following grounds:
- Adultery
- Unreasonable behaviour
- One-year separation (with the consent of both parties)
- Two-year separation (without the need for consent)
2. How long does the divorce process take?
The duration of a divorce depends on its complexity. For straightforward cases, such as uncontested divorces where both parties agree and the finances have been agreed between the parties, either party can apply for a simplified divorce at their local sheriff court and the divorce may be granted in a matter of weeks.
Where the parties are agreed as to the finances and the childcare arrangements but one (or all) of the children of the marriage are under 16 years old, then parties cannot use the simplified divorce procedure. A full court application must be made and affidavits from the applicant and a third party supporting the position that the finances are agreed upon and that there are no issues regarding the children must also be lodged with the court. This will take longer than the simplified divorce procedure, but the process should still only take around 2-3 months.
Where the divorce is contested either because of the division of the finances or the care of the children, then the divorce process can take a long time, sometimes years. In Scotland, a divorce will only be granted once the court is satisfied that the parties have agreed on the financial position and the childcare arrangements.
3. How much does a divorce cost?
Costs vary depending on the type of divorce:
Simplified divorce (for couples without children under 16 and with no financial disputes): cost considerably less and are often offered on a fixed fee basis.
Where parties are not agreed as to the finances or childcare arrangements then the costs of obtaining a divorce can be significant, particularly if extensive negotiations are necessary.
At d and h, we provide transparent advice on likely costs and offer payment options to suit your circumstances. We also offer legal aid for those clients who are eligible.
4. What happens to our children?
Childcare arrangements are a key concern for many divorcing couples. Scottish law prioritises the welfare of the child, encouraging parents to agree on arrangements amicably. If agreement isn’t possible, the court can make decisions about custody and visitation based on the child’s best interests.
5. How are assets divided during a divorce?
In Scotland, matrimonial property is defined as all assets acquired individually or jointly from the date of marriage to the date of separation, whether in individual or joint names. Matrimonial liabilities (which are all liabilities acquired during the marriage up to the date of separation either jointly or individually) are also included. In Scotland, matrimonial property is to be divided fairly, although not necessarily equally. Third-party gifts and inheritance are normally excluded from the matrimonial property even if they were received during the marriage. Any assets obtained by one party before the marriage are also normally excluded from the matrimonial property.
6. Can I get divorced without going to court?
It can often be possible for parties to reach agreement through negotiation or alternative dispute resolution such as mediation or collaboration. However, if parties cannot reach agreement, then ultimately the court will need to decide how the matrimonial property is to be divided and what arrangements are in the children’s best interests.
In terms of the divorce itself being granted, this always needs to be done by the court. Therefore, an application will always need to be made to the court for a divorce to be granted but where parties are agreed, the divorce application is a largely administrative exercise and there will be no need for the parties to attend court.
7. What is the role of a solicitor in a divorce?
A solicitor provides guidance tailored to your unique situation. At d and h, we aim to:
Simplify complex legal processes.
Represent your interests in negotiations.
Offer alternative dispute resolution by way of collaboration.
Help you achieve the best possible outcome in financial and childcare matters.
8. Do I need my spouse’s consent to get divorced?
Consent is required for a one-year separation divorce. However, if you’ve been separated for two years, you can proceed without your spouse’s agreement provided the finances and childcare arrangements are agreed upon.
9. Can we resolve the financial matters before the divorce is granted?
Financial matters must be resolved before the court will grant the divorce. Often parties enter into a legally binding contract known as a minute of agreement which details how the matrimonial property will be divided between the parties.
10. What if we reconcile during the separation process?
If your spouse and you decide to reconcile, you can ask your solicitors to stop proceedings. You can ask the court to withdraw an application provided the sheriff has not granted the divorce. Once the sheriff has granted the divorce there is a period of 14 days during which the divorce can be appealed but once the extract decree if divorce has been granted then the divorce cannot be recalled.
At d and h, we’re here to support you through every step of your divorce journey. Our compassionate and knowledgeable team is committed to providing the guidance you need to make informed decisions about your future.
For more information or to arrange a consultation, get in touch via our online form or contact us directly. Together, we can help you navigate the path ahead with confidence.