Every month, lawyers from Harper Macleod - the biggest Scottish law firm with an office in Shetland - share their insights on issues which can affect local businesses and individuals.
Jenni Gear, a Family Law solicitor based in Harper Macleod's Lerwick office, looks at the process of becoming divorced under Scots law.
When a marriage ends, people often want to be divorced as soon as possible and move on with their lives. However, it is generally not possible to obtain a divorce straight away and even if you have no issues to be resolved you will likely have to wait for a specific period before asking the court for a divorce.
The courts in Scotland will grant a divorce if there has been an 'irretrievable breakdown of marriage', which can be shown in one of four ways;
- Separation of one year with consent of your spouse;
- Separation of two years;
- Adultery; or
- Unreasonable behaviour.
A divorce also may be granted if one spouse has been granted an 'interim gender recognition certificate'.
It is not always necessary to use a solicitor to obtain a divorce. You can apply directly to your local sheriff court using the 'simplified procedure'. However this can only be used if the following criteria are met:
- There are no children of your marriage under 16 years of age;
- There are no financial issues to be resolved;
- You have been separated for one year and your spouse consents to the divorce, or you have been separated for two years; and
- There are no other court actions ongoing which may result in an end to your marriage.
If you have financial issues to be resolved, it is normally helpful to instruct a solicitor who can advise you fully on the law and then help you finalise matters. For example if you own a house together, this will either need to be sold or transferred into you or your spouse's own name. Other assets such as pensions, savings and even cars would also need to be considered, as well as debts. Once you both have agreed how to resolve the financial aspect, and providing the remaining criteria above are met, you can use the 'simplified procedure'.
If you are unable to resolve the financial issues, have children under 16, or do not have the specific periods of separation, you must use the 'ordinary procedure' and it is best to instruct a solicitor to assist you with this. This procedure is more complex and, if your spouse does not agree with what you want, can take some time to resolve if negotiations are required. If negotiations are unsuccessful, the case would go to a hearing at court where evidence is led.
After a separation, where emotions may be high, the idea of an outside party like a solicitor becoming involved may be daunting for some. However taking legal advice at an early stage is often beneficial so you know where you stand in terms of the law.
Get in touch
This article originally appeared in the Shetland Times