Divorce in Scotland

Whilst the Covid-19 pandemic has created a lot of uncertainty and thrown plans into disarray, I have seen many clients for whom it has given them a focus to deal with something which has been ‘on the back burner’ for a while – getting a Divorce.

In this blog post, I look at Divorces where any financial matters between the couple have been resolved fully, where there are children of the marriage who are under the age of 16 years and where the married couple has been separated for longer than a year (and the other party consents to the Divorce) or 2 years (where consent is not necessary).

In these circumstances, we use what is called the ‘Ordinary’ Divorce procedure, as opposed to the ‘Simplified’ Divorce procedure.

The action starts with a document called an ‘Initial Writ’. This document makes a request to the Court for a Divorce and details the parties’ names, addresses, date/place of marriage, date of separation and the care arrangements for the children of the marriage. It is then sent to the Court and returned, with the Court providing permission to serve (send) the document to the other party to the marriage.

The document is then sent to the other party to the marriage, usually by recorded delivery post, along with some other Forms. That person then has 21 days to tell the Court if they wish to oppose the Divorce action. 

If the action is not opposed, where parties have been separated for more than 1 year, but less than 2, that person must sign, date and return ‘Form of Consent’ confirming that they provide their consent to the Divorce, and where parties have been separated for more than 2 years, the person simply needs to do nothing with the papers they receive.

After 21 days, and provided the other party has not told the Court they want to oppose the action, your Solicitor will contact you so that you may provide details for a sworn statement which will be signed by you on Oath and sent to the Court, asking for the Divorce to be granted, at the end of the Court action. This sworn statement is called an ‘Affidavit’. It is the equivalent of giving evidence in a witness box in Court. The kind of detail the Affidavit contains will be: date of marriage, date of separation and living arrangements, arrangements for seeing each parent and schooling details for children of the marriage who are under 16, amongst other things. An Affidavit will also be required from a supporting person, usually a family member or close friend. Your solicitor will take the details from the supporting person too.

Once the details in the Affidavit have been approved by you and the supporting person, arrangements will be made for these to be signed. The signatures on the Affidavit must be witnessed by a Notary Public, and the person signing will be placed on Oath prior to signing.  That used to be undertaken in the Office but, because of the Covid-19 pandemic, we are now able to do that by video call (Zoom, Facetime, What’s app).

As always, getting good advice is essential.  The Drummond Miller family law team is extremely experienced in dealing with all aspects of family law including separation, divorce, and child-related matters. If you would like any further information or advice, please get in touch with our experienced solicitors in Edinburgh, Dalkeith, Musselburgh or Bathgate.