Grounds and Procedures for Divorce in Scotland

1. Introduction

In Scotland, matters to do with divorce are regulated by the Divorce (Scotland) Act of 1976 as amended by the Family Law (Scotland) Act of 2006. The Family Law (Scotland) Act of 1985 as amended by the Family Law (Scotland) Act of 2006 covers matters of financial provision and division of matrimonial property upon divorce.

2. The Grounds for Seeking Divorce in Scotland and the Procedure

Grounds

Section 1 of the Divorce (Scotland) Act (as amended by the Family Law (Scotland) Act) sets out the grounds for divorce. As per sub-section 1, divorce can only be granted where it is established that there is irretrievable break down of marriage or where after the date of the marriage, an interim gender recognition certificate has been issued to either party.

A marriage will be deemed to be irretrievably broken down in any of the following circumstances. If there has been an act of adultery on the part of the defender; or if since the date of marriage, there has been unreasonable behaviour by the defender making it difficult for the pursuer to cohabit with the defender; or if the parties have not lived together for an uninterrupted period of one year following the date of marriage and immediately before instituting the action and the defender agrees to the divorce; or if the parties have not lived together for an uninterrupted period of two years following the date of marriage and immediately before instituting the action.

Procedure

The procedure for seeking a divorce will depend on whether the divorce is defended or undefended. A divorce is defended if the parties do not agree on either the grounds for divorce, the handling of finances and property after the divorce, child custody and support, or all of the above. An undefended divorce on the other hand, refers to a divorce where the parties have agreed on all the said issues.

Where the divorce is undefended, one can make an application for divorce through either the Simplified Divorce Procedure or the Ordinary Divorce Procedure. The Simplified Divorce Procedure, also known as the ‘do-it-yourself’ procedure, entails applying for divorce in the sheriff court or Court of Session. Either party can apply. However, it is important to note that to qualify for this procedure, the divorce must be undefended. Additionally, there must not be any children of the marriage under the age of sixteen years. There are also residential requirements that must be fulfilled as outlined in the Scottish Court website. Forms that need to be filled for this procedure are also available on the same website. Usually, under this procedure, there is no need to engage the services of a solicitor. However, the application form is inclusive of an affidavit which must be sworn. This can be done by a Commissioner for Oaths, a Notary Public or a Justice of the Peace.

The Ordinary Divorce Procedure is applicable for both defended divorces and undefended ones where the parties do not qualify for the simplified procedure. This procedure is more complex and usually requires the services of a solicitor. Divorce proceedings are raised on behalf of the parties by their solicitor. The proceedings usually begin with an initial writ in the sheriff court detailing the grounds for divorce followed by summons in the Court of Session. The initial writ is presented in Court together with the marriage certificate and the birth certificates of the children. Once these are received by court, the sheriff then warrants the papers. This warrant gives the pursuer the authority to serve the defender with divorce papers. The defender then has 21 days within which to oppose the divorce, failure to which papers may be lodged in court by the pursuer asking for divorce to be granted. If divorce is granted, the pursuer will be issued with a confirmation of the divorce in the form of an extract decree of divorce.

3. Matrimonial Assets

Section 10(4) of the Family Law (Scotland) Act of 1985 describes what amounts to matrimonial assets otherwise referred to as matrimonial property. As per the provision, matrimonial property refers to all the property owned by either party or by both parties at the relevant date. This property must have been acquired during the subsistence of the marriage (but prior to the relevant date). However, if the property was acquired prior to the marriage with the aim of utilizing it as a family home or as household furniture, then it will also be considered as matrimonial property. The relevant date in this case refers to either the date the parties stopped living together or the date of the issue of summons in the divorce action, whichever is earlier. Further, rights or interests of either party under a life policy belonging to a party during the subsistence of the marriage (but before the relevant date) are also considered as part of the matrimonial assets. The same applies to benefits under a pension arrangement.

However, matrimonial property does not include assets acquired after separation or before marriage (unless for the intended use as a family home or household goods). Gifted assets as well as assets inherited from a third party are also excluded from matrimonial property, provided they remain in the same state throughout the marriage as when they were first acquired. The net value of matrimonial assets to be shared is the value of the property at the relevant date minus any outstanding debts. These debts are limited to those incurred either before the marriage (provided they are tied to the matrimonial property) or during the marriage.

Based on the above, in the case of Kirsty and Phil, the following will be considered matrimonial assets:

The matrimonial home as valued at the date of separation less the outstanding mortgage. The amount in the joint account since it was accumulated in the course of the marriage. The same applies to the amount in Kirsty’s savings account. One third of each of the pension amounts belonging to both Phil and Kirsty since this is what was accumulated during the marriage and before the date of separation. The £150, 000 which is the remainder of the estate inherited by Phil will be excluded from matrimonial assets as it was an inherited asset. However, the £ 100,000 which he used as part of the deposit for the matrimonial house will be considered as part of the matrimonial assets. Kirsty’s car, which was a gift, will also be excluded as will Phil’s motorbike because it was acquired after the date of separation.

4. Division of matrimonial assets and principle likely to be adopted

Under section 9 (1) (a) of the Family Law (Scotland) Act 1985, the total value of matrimonial assets should be divided between the parties in a fair manner. Fair in this instance denotes equally or in any other proportion as may be warranted by special circumstances. Section 10 (6) gives instances that may be regarded as special circumstances although the list in not exhaustive. It would therefore seem that the existence of special circumstances may be determined on a case to case basis.

In light of this, in Kirsty and Phil’s case, the matrimonial assets are therefore likely to be divided equally unless it can be demonstrated that there are special circumstances that should compel the court to depart from this.

In terms of financial provision, section 9 (1) of the 1985 Act outlines the principles that should guide the court when making an order. Among these is the principle that fair account should be taken of any economic disadvantage endured by either party in the interest of the family or of the other party. Economic disadvantage in this case includes loss of earning capacity and income. Additionally, the court should be guided by the principle that any economic burden of caring, after the divorce, for a child of the marriage under sixteen years old, should be borne fairly by both parties.

In Kirsty and Phil’s case, in addition to the principle of fair division of the net matrimonial assets, the above two principles are also likely to be adopted. This is because Kirsty did suffer an economic disadvantage when she reduced her working hours by 50% after her maternity leave. The economic disadvantage she suffered was in the interest of the family. Further, following the pre-divorce agreement between the two, Kirsty will bear the larger burden of caring for Eve who is four years old. The court should therefore take that into account and grant an order that will ensure that the burden is shared fairly. Based on this, Kirsty can seek an order from court for periodic allowances from Phil. This is one of the orders that a party may seek from the court under section 8 (1) of the 1985 Act.

5. Conclusion

In conclusion, Kirsty and Phil can apply for divorce through the procedure that best suits their situation. In addition to the share of matrimonial property that Kirsty will receive after division of the property, Kirsty should also seek an order for periodic allowances from Phil to contribute towards taking care of Eve.

Legislation

Divorce (Scotland) Act 1976

Family Law (Scotland) Act 1985

Family Law (Scotland) Act 2006