Scotland has one of the highest divorce rates in the Western world; according to the Office for National Statistics, there were 11,474 divorces in Scotland in 2008. The applicable legislation is the Family Law Act 2006, which made some significant changes to divorce law in Scotland.
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Separation is a matter of fact and there is no legal obligation to file court papers, although many Scottish couples do this in order to make their position clear. When a couple cease to live together as husband and wife, they are separated. This could be while the couple are still living under the same roof; they do not have to be physically separated. Under Scottish law, the date of separation is significant because it can be taken as the starting point for the period of separation required for a divorce (either one or two years, depending on the grounds). Separation agreements are legally binding and can be used to settle financial matters during divorce proceedings.
Resolution of Issues
Most couples going through separation or divorce have issues they need to resolve in relation to the marital finances and children. In Scotland there are different ways to attempt this, if the couple cannot reach an agreement themselves. It is important to agree financial matters before the divorce is finalised; in Scotland no financial claims can be made after divorce. One option is mediation in which an independent third party meets with the couple to try to help them reach agreement. This option is less expensive than relying solely on solicitors. A fairly new process in Scotland is known as "collaborative law" whereby solicitors act on behalf of their clients to sort out issues through meetings, having made a commitment not to go to court.
Grounds For Divorce
In Scotland, the only circumstances under which you can file for divorce is if you can establish that the marriage has broken down irretrievably. You can prove this in one of four ways. The grounds of unreasonable behaviour requires one of the parties to establish that their spouse's behaviour has been unreasonable enough to warrant divorce. The grounds of adultery requires proof of the spouse's adulterous behaviour. The grounds of separation with consent may be used if the couple have been living apart for one year and both consent to the divorce. Two years' separation may be used if the couple have been living apart for two years; in this case consent is not necessary.
In Scotland, one spouse raises the divorce proceedings in either the Sheriff Court or the Court of Session. The other spouse must sign a form of consent if the grounds are one year's separation; no consent is required if the grounds are two years' separation. If there are children of the marriage under 16 years of age, evidence about the child's welfare in the form of affidavits (signed statements before a notary public) must be produced. If the grounds are unreasonable behaviour or adultery, appropriate evidence must be submitted to court in affidavit form. Normally the couple are not required to attend court unless the divorce is contested, in which case the parties and their solicitors will attend court hearings and may have to give evidence.
In Scotland, if the divorce is straightforward (i.e. with no financial issues or children to consider) and not contested, it will usually be finalised within eight weeks. More complicated proceedings, where there are disputes over finances or the care and custody of children, can take a lot longer (often up to one year), with as many court hearings as necessary to deal with all outstanding matters.
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