In order to obtain a divorce in Scotland it must first be established whether the Scottish courts have jurisdiction, meaning that they must have the authority to deal with the case.
The Scottish courts will have jurisdiction where:
- Both spouses are habitually resident in Scotland
- Either spouse was last habitually resident in Scotland and one spouse still lives in Scotland
- The other party not pursuing the divorce is habitually resident in Scotland
- The applicant has lived in Scotland for one year prior to the application for divorce
- The applicant has Scottish domicile and has lived in Scotland for six months prior to the application for divorce (peculiar to certain EU countries and intra UK)
- The applicant has a Scottish domicile
Habitual residence and domicile are both legal concepts that are used to indicate a person’s connection to a country’s legal system.
A habitual residence is the place that someone has a genuine connection with on a fixed basis and is usually the place where they live and work.
Domicile is a more complex notion. Every person is born with a domicile of origin and cannot be without a domicile during their lifetime. In order to change domicile, you have to move country with the intention of staying there on a permanent basis, and so it is more difficult to indicate that you have a new domicile than it is to demonstrate that you have become habitually resident in a country.
Accordingly, if you are an expat, living and working in Scotland you will be able to divorce here. You may have to meet a residence requirement You may also be able to divorce in your country of domicile.
If you are a domiciled Scot, living and working abroad you may well be able to use your domicile of origin to allow you to divorce in Scotland even although you are no longer habitually resident here. You may also be able to divorce in the country where you are habitually resident.
Grounds for Divorce in Scotland
Once it has been established that the Scottish court system has the authority to deal with your divorce, Scots law on divorce will apply. The grounds for divorce are covered by the Divorce Law (Scotland) Act 1976. Under this legislation there is one main ground for divorce in Scotland which is the ‘irretrievable breakdown’ of a marriage. This can be established in four separate ways. Firstly, you can prove that there has been an irretrievable breakdown due to adultery. You can also prove irretrievable breakdown because of unreasonable behaviour on the part of your spouse. These are seen as the fault grounds of divorce. However, there are other two grounds that can be used to indicate the irretrievable breakdown of a marriage that are non-fault based and so are less acrimonious.
Firstly, if there has been a one-year period of non-cohabitation that has been consented to by both spouses. Alternatively, after a period of two years of non-cohabitation between the spouses, consent is not needed and this period of separation alone will establish that the marriage has broken down irretrievably.
The process of divorce
There are two processes that can be used to obtain a divorce in Scotland: the simplified procedure and the ordinary procedure. The simplified procedure is a cheaper method of divorcing in Scotland. It is essentially a form that is completed and lodged in court. However, its use is restricted to those families where there are no children under sixteen and where the spouses are not seeking financial provision on divorce from the court.
If these conditions are not met, then ordinary procedure must be used. This is more expensive and may take a bit longer.
You should also note that we tend to agree a division of the assets/ children/ spousal maintenance before we proceed to divorce. In Scotland, there is no requirement for a court to rubber stamp financial agreements before obtaining a divorce.
The court will however want to be satisfied that the welfare arrangements for children are satisfactory before granting a divorce where there are children.