Although it has become increasingly popular to label January as “Divorce Month”, at MSHB we understand the idea of separating can be daunting whenever it might take place. We offer a compassionate and efficient service which helps clients through this process. Below we have detailed the process of divorce in Scotland and the alternative dispute resolution options for resolving conflict out of court.
In Scotland, if your marriage has broken down irretrievably and there is no prospect of reconciliation, you can apply for divorce on one of the following grounds:
1. You and your spouse have been separated for one year and your spouse consents to the divorce;
2. You and your spouse have been separated for two years or more. In this case you do not require your spouse’s consent to proceed with an action of divorce;
3. Your spouse has committed adultery and you are able to prove this. In this case, you are able to proceed with an action of divorce immediately following your separation;
4. Your spouse has acted unreasonably, so much so that you could not reasonably be expected to continue a relationship with them. In this case, you are also able to proceed with an action of divorce immediately following your separation;
5. If an Interim Gender Recognition Certificate has been issued to either party of the marriage under the Gender Recognition Act 2004.
You can either apply for Divorce by way of the Simplified Procedure or the Ordinary Procedure.
Simplified Procedure: Parties can follow this procedure if there are no outstanding financial matters in respect of the parties’ separation and where there are no children of the marriage under the age of 16 years. This is the most straightforward procedure to follow and is generally more time and cost effective for parties.
Ordinary Procedure: If you are unable to utilise the Simplified Procedure, then in all other cases the Ordinary Procedure must be followed. This can be a much more time consuming and expensive process.
Mediation, Collaborative law and Arbitration are processes used to resolve conflict outside of court. Our specialists support the use of these methods wherever possible and are at hand to offer advice and support.
Mediation: Mediation is a process in which an independent mediator assists a couple to resolve all of the practical issues arising from their separation. A mediator is neutral and provides information, not advice, to help the couple organise their thoughts, gather all relevant information and think through the pros and cons of each of the choices they have.
The outcome of mediation is a set of proposals on which the couple are encouraged to take legal advice before their lawyers make any such proposals binding.
Collaborative Law: Collaborative law is a form of negotiation in which the separating couple and their lawyers commit to resolving all of their practical issues arising from their separation without litigating through a Court process. Negotiations, advice and discussions all take place in four-way meetings involving the couple and their lawyers so that there is complete transparency about the legal advice being given. The commitment of all four people is reinforced by their agreement that if the negotiations break down the couple will have to use different lawyers if they wish to use the litigation route.
Arbitration: Arbitration is a form of private dispute adjudication taking the place of the Court process but conducted in private. The arbitration process is flexible and is adapted to the needs of the parties. The Arbitrator makes a binding decision about any questions the couple their advisors which to put to the Arbitrator. The Arbitrators ‘award’ is then made into a Court order.