DIY divorce
The DIY divorce process is also called the simplified procedure.
When to choose this process
You can use the DIY process if:
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you do not have any children under the age of 16 (this includes adopted children, step-children and any children who have been treated as part of the family), and
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you agree on how you wish to deal with assets (including property) and financial issues.
How to apply
If you meet the above criteria, you will be eligible for a DIY divorce. However, you will still need to prove that your marriage has irretrievably broken down or that one of you is applying for a gender recognition certificate. To prove this you will need to rely on one of the grounds for divorce. However, DIY divorces are only available if you are relying on one of the following grounds to end your marriage or civil partnership:
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living apart for 1 year (with agreement),
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living apart for 2 years (without agreement), or
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issuing of an Interim Gender Recognition Certificate to one of the parties
You will then need to apply to the Sheriff Court using the appropriate form and paying the relevant fee you may be eligible for a reduction or exemption depending on you and your partner’s income and capital). Which form you will need to use depends on whether you wish to bring a marriage or civil partnership to an end and on which of the above grounds. The forms can be downloaded from the Scottish Court and Tribunal Service website.
Ordinary divorce
Divorces obtained via the ordinary procedure can either be defended or undefended.
When to choose this process
You must use the ordinary divorce procedure if:
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you have any children under the age of 16 (this includes adopted children, step-children and any children who have been treated as part of the family)
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you are applying for divorce on the ground of adultery
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you are applying for divorce on the ground of unreasonable behaviour
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the divorce is contested
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you cannot agree on arrangements regarding your assets and financial affairs
How to apply
To apply for divorce through the ordinary divorce procedure, you must prove that your marriage has irretrievably broken down or that one of you is applying for a gender recognition certificate. To prove this you will need to rely on one of the grounds for divorce in Scotland.
To divorce in Scotland using the ordinary procedure, you have to serve an initial writ (also known as a ‘summons’). The initial writ includes the names and addresses of the parties involved in the divorce and the grounds for divorce. It also provides brief details on the relationship including, the date of marriage, the date of separation and the birth dates of any children under the age of 16. It will also provide brief details regarding care arrangements for the children.
The initial writ will be drafted and signed by your solicitor (acting as your agent) and then sent to the court to ask for the court’s authority (also known as a ‘warrant’) to serve the initial writ on the other party. Occasionally other parties may also need to be informed of the proceedings (eg if you are applying for divorce under the ground of adultery, the other person involved in the adultery will also have to be informed). If you request the family home to be transferred to you and a secured loan is in place, a copy of the initial writ will be sent to the lender/s.
Note that you will also have to pay the relevant court fee (you may be eligible for a reduction or exemption depending on you and your partner’s income and capital).
The person applying for divorce is known as the ‘pursuer’ while the person on whom the papers are served is known as the ‘defender’. After receiving the Initial Writ the defender has to decide whether they agree with what is suggested with regards to children, assets and finances and with regards to the grounds for divorce.
If the defender is in agreement, the divorce is known as an undefended divorce. If the defender is not in agreement, the divorce is known as a defended divorce.
A defender is given a certain period of notice of 21 days to consider whether or not they wish to defend the divorce.
Undefended divorce
Where both parties agree to the divorce, the divorce process is relatively straightforward. The courts will look at all paperwork that the pursuer’s solicitor has submitted (this will include the initial writ and any sworn statements (or affidavits) made by the pursuer and any witnesses).
Where children under the age of 16 are involved, the courts will look at the arrangements made for them to ensure that they are satisfactory and in the children’s best interest. The courts may wish to discuss the arrangements and may, provided that the children are old enough, meet them.
Where a divorce is undefended and there are no children involved, the process can take up to 6 months. Where children are involved and the court is not satisfied with the arrangements made regarding them, the process can take longer.
When granting the divorce, the courts will issue a divorce certificate known as the extract decree of divorce.
Defended divorce
Where the defender disagrees with the grounds for divorce and/or the arrangements made suggested regarding assets, finances and children, they will need to send a Notice of Intention to Defend (Form O7) to the courts. The defender must do this after they receive the Initial Writ from the court. The form can be downloaded from the Scottish Court and Tribunal Service website.
As defended divorces are typically complicated, it is best to get a solicitor to represent you and help you with the forms.
When a divorce is defended, it usually proceeds to a ‘proof’. A proof is a court hearing which all the parties, including their solicitors, have to attend with their witnesses and any statements in support and present their case to the sheriff. The sheriff will then decide any of the orders being requested.
Where the divorce is based on the ground of irretrievable breakdown of the marriage, the defender will have to say why they do not agree that the marriage has broken down. This is likely to involve a court hearing as a judge will have to decide whether the marriage has broken down irretrievably.
Even if the courts agree that the marriage has broken down irretrievably, it has to be satisfied that arrangements dealing with any children of the family are satisfactory. The courts may wish to discuss the arrangements and may, provided that the children are old enough, meet them.
The courts will also consider the matrimonial property that is to be divided up and any financial provisions. Even where the pursuer has not requested financial provisions, the defender should consider making a financial claim. In practice, the divorce action is the only chance there is to request financial provisions on either side.
When granting the divorce, the courts will issue a divorce certificate known as the extract decree of divorce.
