The procedure

The procedure

Contents

In Scotland there are 2 procedures for getting a divorce or dissolution. These are:

  • The simplified procedure
  • The ordinary procedure

Simplified procedure

The 'simplified procedure' is a kind of do-it-yourself divorce or dissolution.

When you can get it

This procedure can only be used if all of the following apply to your case:

  • There are no children under the age of 16, either of the marriage/civil partnership or accepted as part of the family.
  • There are no financial claims being made by either party.
  • The divorce is based on the fact of either one year's separation with consent or 2 years' separation.
  • There is no indication that either party is unable to manage their affairs because of mental illness or impairment.
  • There are no other court proceedings that might result in the end of your marriage or civil partnership.
  • There is no religious impediment to the remarriage of either party. (This will normally only apply to people of the Jewish faith.)

Before using the simplified procedure, you should get legal advice about financial matters. This is because it is not possible to change some financial decisions after the divorce or dissolution has been granted.

Steps to take

If you use this procedure you fill in a form in which you set out the information that supports the ground on which you want a divorce or dissolution. This form will need to be 'sworn', which means you need to take it to a Notary Public or Justice of the Peace. To start the process you must send this completed form together with your marriage/civil partnership certificate and the appropriate fee to the local sheriff court. You can get forms from the local sheriff court or the Scottish Courts website.

The court will send a copy of the application for divorce or dissolution of a civil partnership to your spouse or civil partner. They then have time to object. If they do, the simplified procedure cannot go ahead. If they don't object, the court will consider the application and let you both know the result.

The whole process usually takes about 4 to 6 weeks. If the application is successful, the court will send you the appropriate certificate, either an Extract Decree of Divorce, or an Extract Decree of Dissolution of a Civil Partnership.

Costs

The current sheriff court fee for a simplified divorce application can be found on the Scottish Courts website. 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 fees.

Ordinary Procedure

Starting the ordinary procedure

The ordinary procedure is started by an initial writ being lodged in court and then served (usually by recorded delivery post or by sheriff officers) on your spouse or civil partner.

They then have 21 days to decide and notify the court of whether they are going to do any of the following:

  • Allow it to proceed as undefended
  • Object
  • Make a claim for financial provision
  • Seek an order in relation to any children

Defended actions

If any of the last 3 is wanted, the divorce or dissolution will be a defended action. This means that it will eventually proceed to what is called a 'Proof'. This is when all the parties have to come to court with their witnesses, any statements and productions and present their case to the sheriff. The sheriff will then decide whether to grant any of the orders being asked for. A defended divorce or dissolution is usually fairly complicated and so it's a good idea to get a solicitor to represent you.

Undefended actions

If you are unable to use the simplified procedure because you have children under the age of 16, but there are no arguments about financial matters, then the procedure is less complicated.

A summons is still presented to the court and then served on your spouse or civil partner. After the 21 days have passed and no defence or orders are asked for, the next stage is to prepare appropriate affidavits.

These affidavits are sworn statements in front of a Notary Public or Justice of the Peace. The statements are about the basis of the divorce or dissolution and also provide detailed information in relation to the children's wellbeing. Where there are children under the age of 16, you need to provide detailed information about the arrangements for them, so that the court can consider these. The court must be satisfied about the arrangements proposed for the children. You must also have one witness who can provide their own affidavit about the basis of your separation and the wellbeing of your children. This witness can be a friend or relative but not your spouse or civil partner.

Once the court has considered all the paperwork and affidavits, the court will – if satisfied – grant the decree of divorce or dissolution without you needing to be present in court or to give evidence.

Costs

The costs of a divorce or dissolution can vary considerably, depending on whether it is defended or undefended, and the amount of work that solicitors have to do. 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 is available for people who are eligible. In divorce or dissolution cases one or both partners can apply for legal aid. 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 are granted a lump sum or any property in the case.