The bad news is that for some reason or another, you’ve found yourself needing a divorce. You might be just at the start of the process, or you might have sorted out everything about the house, kids, and finances and just need to get the final piece of paper. Either way, it’s best to have a basic understanding of the Scottish divorce procedure before you jump in as it can differ from what we see on TV and media (and not just because most lawyers aren’t as glamorous as they are on Suits, even here at Watermans).
So, we’ve created a handy straightforward guide to grounds for divorce, just for you, without any intimidating legal lingo.
Grounds for Divorce
First things first, to be divorced you need to have a legal basis for asking the court to do this. This means establishing one of the “grounds for divorce”, or reasons why the marriage has broken down beyond repair.
There are four sets of circumstances that make up the officially accepted “grounds for divorce” in Scotland. And, contrary to what you might hear in celebs’ PR statements, “irreconcilable differences” and “consciously uncoupling” are not on the menu.
The first two are what we call no-fault grounds, which means just that – there’s no pointing the finger at each other, and you don’t need to tell the court anything about why you separated, just the date that you split. This is the easiest, cheapest and most common way to do it provided you have sorted out your kids and finances already. If you go down this route the process will only take a couple of months and neither of you will need to go to court – it’s all paperwork.
The no-fault grounds are pretty simple;
- You stopped cohabiting – living together as spouses – one year ago, and your spouse is willing to consent to the divorce
- You stopped cohabiting two years or more ago. In this situation, your spouse’s consent is not needed, but they still need to be told about the divorce proceedings and could object (e.g., if they think there is still a financial dispute). However, most of the time this is what both parties agree to do and there’s no objection
Sometimes, however, neither of these grounds can be used because you need to get the divorce started before a year is up. In this situation, you can use the other two grounds;
- One of you has committed adultery (sexual intercourse with someone of the opposite sex). While it can appeal to people emotionally to essentially air their cheating spouse’s dirty laundry, it’s not usually a good idea. It’s also expensive – if the other party won’t admit to the adultery, you have to produce evidence, which means instructing a private detective to sit outside the person’s flat and photograph the cheat and their accomplice arriving and leaving so as to imply … they spent the night together … messy! (And like we said, expensive.)
- Unreasonable behaviour – which means one of you has behaved so badly that the other can no longer be reasonably expected to live with them. This, as you can imagine, covers a multitude of sins. A single serious incident can be enough, but a lengthy period of seemingly minor behaviours can become intolerable over time. Examples include alcoholism, inappropriate sexual behaviour, verbal abuse and bullying, controlling behaviour and harassment including criminal harassment – you get the picture. However, the behaviour doesn’t have to be criminal or abusive to justify the ground – a wide range of circumstances can be used.
For obvious reasons most people prefer to go down the no-fault route – apart from anything else, it’s upsetting to read an account of your behaviour in formal legal language even if you both accept the relationship is over. Whatever approach you take, however, getting the divorce dealt with will ultimately allow you both to move on with your lives, and get some closure.
Divorcing your partner, instead of just living separately, is also essential if either of you wishes to marry again in the future too – and it also means your spouse can’t make a claim on your estate if you pass away. So even if it feels like just another bit of bureaucracy, it’s worth sorting it out now.