While people talk about getting divorced, in reality that is often the most straightforward part of the separation process.
There are two methods of obtaining a divorce or dissolution of a civil partnership in Scotland:
(a) The simplified procedure; or
(b) The ordinary procedure.
In order to raise a divorce or dissolution of a civil partnership you must have the legal grounds to do so. In Scotland there are two grounds for divorce or the dissolution of a civil partnership:
1) recognised gender change of either party; and
2) irretrievable breakdown of the marriage.
A recognised gender change is established if either party is issued with an interim gender recognition certification under the Gender Recognition Act 2004. Irretrievable breakdown is established if one of four situations (in the case of divorces) or one of three situations (in the case of dissolutions of civil partnerships) can be established. These situations are as follows:
(1) adultery (only available for actions of divorce);
(2) unreasonable behaviour;
(3) non cohabitation for one year with the defender’s consent;
(4) non cohabitation for two years.
If you do not have sufficient grounds to raise an action of divorce or dissolution, you cannot get divorced or have your partnership dissolved, but you may be able to negotiate with your spouse or civil partner with a view to preparing an agreement called “a separation agreement” or “minute of agreement”.
You must also raise the action of divorce or dissolution in a court having jurisdiction. Usually the action is raised in the sheriff court closest to where you live. The rules relating to jurisdiction can be complex and if you have difficulties with this question, it may be useful to see a solicitor. It is also possible to raise an action of divorce in the Court of Session if the issues are complicated or there are a lot of assets to be shared.
Generally, the simplified procedure can only be used for divorces when all the children of the marriage are over 16 years of age and there are no financial claims to be dealt with.
In all other cases the ordinary procedure must be used.