Establishing that the marriage has broken down

Irretrievable breakdown is shown in one of these ways:

• One year’s separation, where both of you consent to the divorce.
• Two years’ separation, where the other person does not consent, or will not engage.
• Unreasonable behaviour, meaning behaviour such that you cannot reasonably be expected to live with them.
• Adultery.

The separation periods were reduced to one and two years by the Family Law (Scotland) Act 2006. Before that they were two and five. A great deal of older material online still quotes the longer figures.

In practice most Scottish divorces proceed on separation, because it is the least contentious and the cheapest route. Proving behaviour or adultery is rarely necessary and rarely worth the additional cost and rancour.

Simplified divorce — the do-it-yourself route

You may use the simplified procedure where all of the following are true:

• You are relying on one or two years’ separation, with consent where it is one year.
• There are no children of the marriage under sixteen.
• Neither of you is making any financial claim against the other.
• Neither of you is unable to manage your own affairs.

If that describes you, the court publishes the forms and you can do it without a solicitor for the court fee alone. We would rather tell you that than sell you something you do not need.

The trap is the third condition. Once you sign a simplified divorce application you are giving up financial claims, including against a pension. If there is anything of value between you — a house, a pension, savings, a business — take advice before you sign, not afterwards.

Money and property

Financial provision on divorce is governed by the Family Law (Scotland) Act 1985. The starting point is that matrimonial property — broadly, what the two of you acquired between the date of marriage and the date you separated — is shared fairly, which usually but not always means equally.

Two features of the Scottish system surprise people who have read English material:

Pensions are matrimonial property to the extent they built up during the marriage, and are frequently the largest single asset. They are also the thing most often overlooked in agreements reached without advice.

What it costs

A simplified divorce costs the court fee and nothing else if you do it yourself. A straightforward undefended divorce handled by a solicitor is commonly offered on a fixed fee. Where there is a financial dispute, the cost depends entirely on how much is disagreed and for how long, and no honest firm will quote a total in advance without knowing that.

Most financial settlements in Scotland are reached by agreement and recorded in a Minute of Agreement, which is registered and enforceable. Contested court proceedings are the exception rather than the rule, and are much the most expensive way to arrive at a similar answer.

Children

Arrangements for children are dealt with separately from the divorce itself, and the court will not make orders about them unless it needs to. Where parents agree, the agreement can simply be recorded. Where they do not, the question is decided by reference to the child’s welfare under the Children (Scotland) Act 1995.

Common questions