Before going through the divorce proceedings in Scotland, it must first be established whether the Scottish courts have jurisdiction of the case and thus have the necessary authority to legally carry it out.
In general, the majority of people married or in civil partnerships in the UK and living in Scotland will be able to get a divorce in Scotland. You may only obtain a divorce in Scotland. However, you need to meet the residence rules regarding where you live and also have a marriage which is recognised as valid within the UK. If you are unsure as to whether you meet both of these criteria, then it is important to get in contact with an expert family lawyer for advice.
When do the Scottish Courts Have Authority over the Case?
There are several times when the Scottish courts have authority over a divorce case. These are:
- When both parties are habitual residents of Scotland.
- When either spouse was last habitually resident in Scotland and one spouse still resides there.
- The applicant has Scottish domicile and has lived in Scotland for six months prior to the application for divorce.
- The applicant has a Scottish domicile.
- The party applying for the divorce has lived in Scotland for 1+ years prior to the application.
- The party who is not actively pursuing the divorce is currently a habitual resident of Scotland.
What Do You Need To Do First?
We tend to agree on a division of assets, children and spousal maintenance before we proceed to divorce.
The division of assets divides up the matrimonial property of both parties from the marriage. It is then required to prove your residence and make sure you meet the residence rules detailed above, which usually orientates around the individual’s habitual residence and/or domicile.
What’s Habitual Residence and Domicile?
These are both legal concepts used as a means of indicating a person’s connection to that legal system.
Habitual Residence: the place that someone has a genuine connection with on a fixed basis. This is generally the place they live or work.
Domicile: this term is more abstract. Every person is born with a domicile origin and cannot be without one at any point during their life. In order to change this, you have to move to another country with the intention of making this your new home for the foreseeable future on a permanent basis.
Due to the nature of these two types of residence, the domicile is much harder to prove and thus it can often be a far lengthier process to prove that you have become habitually resident in this country and now consider it your long-term home. If you are an expat living and working in Scotland, then you will be able to divorce here. However, you may have to meet a specific residence requirement.
It is often the case that divorce must be finalised in the individual’s country of domicile. As a domiciled Scot who is living and working abroad, you may be able to use your domicile of origin as means to allow your divorce in Scotland, despite the fact you are no longer a habitual resident there. Divorces can also be carried out in the country in which you are a habitual resident.
What Are The Grounds For Divorce?
The grounds for divorce are covered by the Divorce (Scotland) Act 1976. It first has to be established that the Scottish court system has the authority to deal with your divorce before you are able to apply. Once this has been done, the grounds for divorce can be established in four major ways.
The first two of these grounds are seen as the fault grounds of divorce:
- Proof of irretrievable breakdown due to adultery by either spouse.
- The irretrievable breakdown of a marriage due to unreasonable behaviour on the part of your spouse.
However, the second two grounds that can be used to indicate the irretrievable breakdown of a marriage are far less fault-based and thus less acrimonious by nature:
- A one-year period of non-cohabitation that both spouses have consented to.
- A period of two years of non-cohabitation between the spouses. Consent is not required in this case as the length of the period of separation alone is enough to establish that there has been an irretrievable breakdown in the marriage.
How Is The Divorce Process Carried Out?
The two processes carried out in order to obtain a divorce in Scotland are the “simplified procedure” and the “ordinary procedure”.
Simplified Procedure: this is the cheaper method. It is essentially a form that is completed and lodged in court. However, its use is restricted to families where there are no children under the age of 16 and where the spouses are not seeking financial provision on divorce from the court.
In cases in which these conditions of the simplified procedure are not met, then an ordinary procedure must be carried out. However, these are usually more expensive and time-consuming.
Ordinary Procedure: often referred to as the DIY procedure. This means obtaining a divorce in Scotland is more expensive and takes longer as you’ll need a solicitor to carry it out.
However, it must be emphasised that the Scottish courts will want to be wholly satisfied that the welfare agreements for children are satisfactory before granting a divorce. In these cases, children are ultimately considered to be the priority.
Support For Scottish Divorce
Are you going through a divorce in Scotland? Cath Karlin Family Law is an experienced specialist family law practice based in Edinburgh which could be the answer to your problems.
As someone who has been a client myself, I am committed to helping anyone experiencing civil law issues and helping them come through the other side in as strong, content and stable position as possible.
If you need any further legal advice regarding information on the division of assets in Scotland or anything else regarding matrimonial separation, please don’t hesitate to get in contact with us here at Cath Karlin Family Law and we’ll do all we can to assist you.