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The divorce procedure

Contents

The procedures for divorce

In Scotland there are two procedures for getting divorced. These are:

  • A simple do-it-yourself divorce, or
  • Applying under what is called the 'ordinary procedure'.

To get divorced in Scotland the partners of the marriage must meet the residence rules. The rules regarding residence are complicated but a couple would usually meet the rules if one or both of them have their usual home in Scotland. The residence conditions are

  • You and your spouse/civil partner are habitually resident in Scotland,
  • You and your spouse/civil partner were both last habitually resident together in Scotland and one of you still resides there,
  • Your spouse/civil partner is habitually resident in Scotland,
  • You are habitually resident in Scotland having resided there for at least one year immediately before this application is made,
  • You are habitually resident in Scotland having resided there for at least six months immediately before this application is made and you are domiciled in Scotland, and/or

(For Divorce applications only)

  • You and your spouse are domiciled in Scotland,

Which failing

  • Either you or your spouse / civil partner are domiciled in Scotland, and additional provisions apply which enable nationals of other member states of the European Union to qualify.

And(for Sheriff Court applications ONLY)

  • You have lived at your current address for at least 40 days before the date of signing the application,
  • Your spouse / civil partner has lived at his/her current address for at least 40 days before the date of you signing the application, or
  • Either you or your spouse / civil partner have no known residence in Scotland, but did live at the address shown for at least 40 days, ending not more than 40 days before the date of you signing the application.

A divorce can be brought to either the sheriff court or the Court of Session. There can be differences in procedure between the two courts. This information specifies what happens in the sheriff court as this is where most divorces are raised.

Do-it-yourself divorce

This is a simplified procedure which can only be used if certain conditions are met. These are:

  • The ground for the divorce (or dissolution of a civil partnership) is a one year separation where both partners agree to divorce, a two year separation, or the issue of an interim gender recognition certificate; and
  • There are no children under 16, and
  • There are no outstanding disputes over money or property, and
  • There is no indication that either of the partners is unable to manage their affairs because of mental illness or impairment.
  • There must be no other court proceedings which might result in the end of your marriage or civil partnership.
  • There must be no religious impediment to the remarriage of either partner. (This will normally only apply to persons of the Jewish faith.)

Before using this simplified procedure, you should obtain legal advice relating to financial matters as it is not possible to change some decisions relating to financial matters after the divorce or dissolution has been granted.

The "do-it-yourself" procedure is only for uncontested divorces / dissolution of civil partnership. Your spouse / civil partner must not object to the divorce / dissolution of civil partnership for any reason. If there is an objection at any stage the simplified procedure will stop.

Court staff will send a copy of your application to your spouse / civil partner so that they are aware of the application and have the opportunity to object.

The procedure

If you want to apply for a do-it-yourself divorce or dissolution of a civil partnership you will have to fill in a form giving the reason for the divorce or dissolution and information to support it. Forms can be obtained from the local sheriff court or can be downloaded from the Scottish courts website . If the ground for divorce or dissolution is a one year separation with the agreement of your partner, you will have to get your partner to sign a consent form.

You will have to swear that the facts stated on the form are correct before a Justice of the Peace or other authorised person. A Justice of the Peace will sign the form, free of charge. The completed form, the marriage certificate, the civil partnership certificate and a fee should be returned to the local sheriff court.

The court will send a copy of the application for divorce or dissolution of a civil partnership to your partner. Your partner then has time to object. If they do object than the simplified procedure cannot go ahead.

If your partner does not object to the divorce or dissolution, the court will consider the application and let you both know the result. The whole process usually takes about four to six weeks. If the application is successful, a divorce certificate, known as the Extract Decree of Divorce, will be sent by the court along with the marriage certificate or in the dissolution of a civil partnership, the dissolution documents and the civil partnership certificate.

Costs

The court fee for a do-it-yourself divorce or dissolution is £101. There may be other charges for any additional court procedures, or the cost of a duplicate marriage certificate or civil partnership certificate. The person who asks for the divorce or dissolution (the petitioner) is responsible for these costs. People who receive income support or income-based job seeker's allowance are exempt from paying the court fee. If you are exempt from the £101 court fee, you could also be exempt from certain other court fees that may apply.

Once a do-it-yourself divorce or dissolution has been granted it will not be possible for someone to go to court to argue about a property settlement (for example how to divide the proceeds of selling a house).

More guidance is available on the Scottish courts website

The necessary forms for applying for a simplified divorce or dissolution can be obtained from the Scottish courts website

Ordinary procedure for divorce or dissolution of a civil partnership

When the conditions for a simplified divorce or dissolution are not met you will have to use the ordinary procedure.

If you want to apply for a divorce or dissolution of a civil partnership under the ordinary procedure you will need the help of a solicitor.

The solicitor will need your marriage certificate/civil partnership certificate, birth certificates of any children and details of why you want a divorce or dissolution of a civil partnership. The solicitor will also need to see the interim gender recognition certificate if a divorce or dissolution is being sought on the ground that one partner has such a certificate. The solicitor then collects more information to support the application.

The solicitor will draw up a formal document (initial writ) stating all the facts. This is sent to the court and a copy is sent to the other partner. When adultery is being used as a ground for divorce in a marriage, a copy is sent to the third person involved.

Undefended cases

If you and your spouse or civil partner both agree to the divorce or dissolution of the civil partnership, it proceeds as an undefended case. The applicant and any other witnesses will have to provide sworn statements, called affidavits, to the solicitor, who submits the statements to the court. Neither partner usually has to go to court. The sheriff will examine the case and the divorce or dissolution will then be granted unless the court requires further information.

Defended cases

If the other partner disagrees with the grounds for divorce or dissolution of the civil partnership, or the arrangements for the children or money, they may object to the divorce or dissolution. The divorce or dissolution then proceeds as a defended case. Defended cases can be long and expensive if there are many disagreements between the partners. It may be possible to settle many disputes using a mediation service. If you want to object to a divorce or dissolution of a civil partnership you will need the help of a solicitor.

Costs

The costs of a divorce or dissolution of a civil partnership can vary considerably, depending on whether it is defended or undefended, and the amount of work that solicitors have to do. The average cost of an ordinary undefended divorce without financial and other claims will amount to about £900. The court decides who has to pay the costs of the action, unless each party agrees how to meet the legal costs. The court can also decide that each partner has to pay their own costs.

Legal aid can be available for people who are eligible. In divorce or dissolution cases one or both partners can apply for legal aid, and their financial eligibility will be separately assessed on the basis of their own income and capital. If legal aid is granted, you may be required to repay it if you 'win' a lump sum or any property, for example the home, in the case.