Scots Family Law - Divorce and Dissolution - Divorce

Divorce

Divorce, the legal process by which a marriage is brought to an end, is now regulated by the Divorce (Scotland) Act 1976 as amended by the Family Law (Scotland) Act 2006, which provides two legal grounds for divorce: the, "irretrievable breakdown of the marriage" or where one party has undergone gender reassignment surgery and obtained an interim gender recognition certificate. Irretrievable breakdown is proved by one of the parties to the marriage showing that one or more defined circumstances exist. This eliminates the need for the judge to conduct an intimate examination of the relationship between the parties. There are "fault" and "no fault" grounds provided in the Act, and the speed at which a divorce can be obtained will be determined by what circumstances are relied on in the divorce proceedings. It is not possible for both parties to submit a joint petition for divorce, divorce cases must always have a person seeking the divorce (the pursuer) and a person arguing against the divorce (the defender).

The circumstances that will lead to a finding by the court that there is an irretrievable breakdown of the marriage are:

• the defender's adultery;
• behaviour of the defender that makes it unreasonable for the pursuer to live with the defender;
• not living as husband and wife for one year and there is consent to the divorce from both parties; and
• not living as husband wife for two years when one party objects to the divorce.