Thursday, February 7, 2008

Ordinary Divorce Procedure

In Scotland when the conditions for a divorce under the Simplified Procedure are not met the Ordinary divorce procedure is used and a solicitor is required. The action begins with the solicitor for the pursuer drafting the summons (Court of Session) or initial writ (sheriff court). This is a formal document stating all the facts which is sent to the court. A copy is sent to the defender who then has 21 days to seek legal advice and consider their response. When adultery is being used as a ground for divorce, a copy is also sent to the third person involved if he or she is named in the summons or initial writ.

UNDEFENDED DIVORCE Where both parties are in agreement the action proceeds as an undefended divorce. Sworn statements are usually provided by the divorce applicant and the solicitor submits the statements to the court. The judge examines the case in private and the divorce decree will then be granted unless the court requires further information.

DEFENDED DIVORCE The defender may decide to defend the action, either because they object to the divorce itself, or because they dispute some aspect of the future arrangements for the care of any children, the proposed financial provision on divorce or both of these matters. If during the process defended actions are settled by agreement a Joint Minute of Agreement can be drawn up.

Child Welfare Hearing If the divorce involves a dispute in respect of children and the action is being defended in the sheriff court, the next step in proceedings is a Child Welfare Hearing. The sheriff may also order such a hearing in other instances where they consider it appropriate.

This is intended to bring about the quick resolution of disputes about children, proving that this can be done in a manner consistent with the child’s welfare. All parties are required to attend the hearing personally and are under a duty to provide the sheriff with as much information as possible so that he or she can take whatever steps necessary to deal with the matter.

The court may also refer the dispute to a mediator accredited to a specified family mediation organisation at any stage in the proceedings

Options Hearing Where a divorce is defended in the sheriff court the next stage is an Options Hearing. This is intended to give parties a chance to meet before the sheriff in order to ascertain if agreement can be reached without proceeding to a full proof (see below) or, if this is not possible, to focus the precise disagreement between parties.

The Proof If the matters at issue are not resolved the case proceeds to a 'proof.' A proof is a full court hearing where evidence is given by witnesses in proceedings open court. It can be reported by the media, subject to certain restrictions aimed at protecting 'public morals' and children.

Decree of divorce If the grounds of the divorce action are proven, the court will grant a decree of divorce.


  © Blogger templates The Professional Template by 2008 © Rosemary Slessor

Back to TOP