An overview of the grounds of divorce

Nigella Lawson and Liam Gallagher… are two high profile names who are currently in the news in relation to divorce.  For Lawson, on 31st July 2013 decree of divorce was granted with Lawson and former husband Saatchi reaching a private financial settlement. If the newspaper reports are true, Liam Gallagher has sought legal advice in relation to protecting his fortune. It is perhaps an apt time to consider the grounds for divorce in Scotland.

The law of divorce in Scotland is governed by the Divorce (Scotland) Act 1976 as amended by the Family Law (Scotland) Act 2006. Divorce is granted by the Sheriff court or the Court of Session. In granting divorce the court must be satisfied that the marriage has broken down irretrievable. Irretrievable breakdown is established if:

  1. since the date of the marriage a party has committed adultery
  2. since the date of the marriage a party has at any time behaved in such a way that the other party cannot reasonably be expected to cohabit with them
  3. there has been no cohabitation between the parties at any time during a continuous  period of one year after the date of the marriage and immediately preceding the brining of the action of divorce and the other party consents to the granting of decree of divorce, or
  4. there has been no cohabitation between the parties at any time during a continuous period of two years after the date of the marriage and immediately preceding the brining of the action.

The standard of evidence to establish a ground of the action is the balance of probabilities. In respect of the financial consequences to a party, the court shall not grant divorce if, in its opinion, the granting of divorce to one party would result in financial hardship to the other. 

Drummond Miller are very well placed to advise on all aspects of divorce. Over the years we have amassed considerable experience in this area of work, and regularly have cases of this nature in both the Sheriff Court and the Court of Session. We take care to consider all aspects of the case and advise on financial implications and child matters such as residence and contact. Where appropriate cases may be settled by negotiation without recourse to the court but where litigation is necessary you can be assured you have at your disposal the expertise of experienced practitioners.  If you have any queries about divorce, sorting finances following separation, or wish to enter a pre-nuptial agreement, please contact our Family Law Team.