Following on from yesterdays topic, Joint Minute of Agreement,
here is a quick run through the grounds for divorce and simplified divorce procedure in Scotland.
Grounds for Divorce
Divorce is available where a marriage has broken down irretrievably. This can be established by the pursuer proving one of four factual circumstances. Citing behaviour or adultery requires strong evidence involving at least one witness. 88% of divorces granted in 2006 were on the basis of one or two years separation .
• adultery: the defender has committed adultery
• behaviour: the defender has behaved in such a way that the pursuer cannot be expected to cohabit with him or her
• one years’ separation with consent: there has been no cohabitation between the parties at any time during a continuous period of one year and the defender consents to the granting of a divorce
• two years’ separation: there has been no cohabitation between the parties at any time during a continuous period of two years
• the ground for the divorce being relied upon is one of the separation grounds
• the action is not being defended by the other party to the marriage
• there are no children under 16
• neither party is applying for an order for financial provision on divorce
• there is no indication that either of the parties is unable to manage his/her affairs because of mental illness or impairment
To apply for a divorce under this procedure the applicant will have to fill in a form giving the reason for the divorce and information to support it. If the ground for divorce is a one year separation with the agreement of the other party, Form SPA is used and the applicant will have to get the other party to sign a consent form. Form SPB is used if the ground for divorce is two years without agreement.
The applicant must swear that the facts stated on the form are correct before a Notary Public or a Justice of the Peace who will sign the form, free of charge. The completed form, the marriage certificate and a fee is returned to the local sheriff court or Court of Session. The court will send a copy of the application for divorce to the other party. The other party then has time to object to the divorce. As mentioned above, if he or she does object then the simplified procedure cannot go ahead.
If the other party does not object to the divorce, the court will consider the application and let both parties know the result. If the application is successful the court will grant a ‘decree of divorce’ The whole process usually takes about eight weeks.