Wednesday, February 6, 2008

Simplified Divorce Procedure

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

Simplified Procedure
Conditions
• 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.

12 comments:

Anonymous,  23 August, 2008 01:19  

Hi Fiona,

I am in process of the simplified divorce procedure all happening at Glasgow Sheriff Court. In September 2008 I should get my decree of divorce.
Currently I am living and residing in Singapore and my ex-wife is still in Glasgow. I intend to re-marry here in Singapore - could you tell me how do I get and how long will take to obtain a decree absolute for my divorce?
My email is adrian_popescu101@yahoo.co.uk
Thanks,
Adrian

Fiona 23 August, 2008 10:45  

Hi Adrian,

I'll just post a reply as the information might be useful to others.

There is a guide to simplified procedure available from the Scottish Courts website

http://www.scotcourts.gov.uk/library/civil/divorce/index.asp

and the forms are here

http://www.scotcourts.gov.uk/library/civil/divorce/forms_after_feb2007.asp

There is only one divorce decree in Scotland, no nisi and absolute, and once the court is in receipt of the application  it typically takes 6 to 8 weeks to register and send out the decree.

Hope that helps.

Anonymous,  27 August, 2008 00:50  

Great news!!!
Thanks Fiona.

Adrian

ruchi,  24 February, 2009 15:34  

Hi Fiona

My husband has applied for a simplified divorce procedure , he worked for aperiod of two years offshore at caspian sea, where wives cannot be taken, he later cam eback and used this offshore work time as two year seperation. I have objected. can the divorce still proceed or the courts will drop my case.

ruchi

Fiona 25 February, 2009 00:32  

Hi Ruchi,

Under s1(2)(e) Divorce (Scotland) Act 1973 the irretrievable breakdown of marriage is established when "there has been no cohabitation between the parties at any time during a continuous period of two years after the date of the marriage and immediately preceding the bringing of the action."

Hope that helps.

Anonymous,  20 June, 2009 01:35  

Hi Fiona,

I am trying to do it by myself but i am stuck with affidavit form issue. Is there any law for or organisation help me to fill that so i can avoid solicitor's fee or any suggestion because i really don't want to spend too much on it?

Many thanks, John

Fiona 23 June, 2009 12:29  

CAB can help. With a simplified divorce you don't need to go into great detail, a couple of sentences along the lines that the marriage has irretrievably broke down and you know longer live together as husband and wife is fine.

If you search the Scottish Courts website there is a document about affidavits which might help, but it is really aimed at users of the ordinary procedure I think.

ollygamood 27 September, 2009 15:35  

Hi Fiona,

Where can you go to get a JP to sign your form?

Alison 05 November, 2009 10:12  

I'm about to apply for a simplified divorce having been separated for over 5 years now. When the copy of my application is sent to my husband is he required to respond in any way or is that only if he wishes to contest anything? I know he won't contest the divorce but would just sit back and do nothing and I'm concerned that may hold things up.

Thanks
Alison

Anonymous,  16 July, 2011 16:37  

i am in process of the simplified divorce procedure, the fors have been sent to my husbands dad as i havnt seen or spoke to him since he left me 4 years ago.i have only just got contact with him and he has told me he is planning to contest the divorce.we have no kids together and when he left me he got someone else pregnant and has a kid to this woman and is still with her. what happens if he contests it as im planning to get married on the 22nd october as i didnt think he would do this ...

Anonymous,  21 November, 2011 10:23  

Hi Fiona,
Just a bit of information needed, am about to send papers off for the simplified divorce, 1 thing I cant seem to get answered, my husband says he wont give me a divorce even though we have lived apart for the last 11 years,if he doesnt return the concent forms does the divorce go ahead or signs them Donald Duck as he has said he would and returns them to the court does the divorce go ahead. Please help.
Thank you

S

Fiona 29 November, 2012 17:11  

Just a reminder that I can't give legal advice and if you have legal questions you should consult a solicitor about your individual circumstances.

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