Grounds for divorce

Contents
1. Reasons for a divorce 1.1. Irretrievable breakdown 1.2. Gender recognition 2. Other points you should consider before applying

Divorce law is significantly different in Scotland from that in England and Wales. Divorce proceedings can be brought if you or your spouse have been habitually resident in Scotland for at least a year.

There are only two grounds for divorce (or dissolution of a civil partnership) in Scotland:

The first ground for divorce is that the marriage has broken down irretrievably. Irretrievable breakdown can be established only on the basis of one of four fact situations.

These are:

• Adultery: This ground does not include adultery you have condoned or connived at. Condonation means you forgave your spouse by resuming married life three months after you knew about the adultery. Connivance is encouraging the adultery, such as engaging in wife swapping.
• Unreasonable behaviour: Unreasonable behaviour includes activities ranging from financial irresponsibility, violent actions and nagging, to ignoring your spouse's emotional or sexual needs.
• One year's non-cohabitation by the spouses where both consent to the divorce.
• Two years’ non-cohabitation by the spouses where there is no mutual consent to the divorce. Non-cohabitation means living separate lives and not living together as a normal married couple would.

The second ground for divorce is that you are a transsexual who has an interim gender recognition certificate. You can get an interim gender recognition certificate by applying to the Gender Recognition Panel and starting the process of legal recognition of your acquired gender.

You can only apply if money is not an issue at the time of the divorce/ dissolution of civil partnership. This means that neither you nor your spouse / civil partner wishes to ask for:

• Maintenance (called periodical allowance) - A regular weekly or monthly payment of money

and/or

• A lump sum (called a capital sum).

This could be either because you have reached a voluntary agreement between yourselves regarding money or because you have both agreed on a clean financial break.

Your decision about a lump sum will be final once the divorce/ dissolution of civil partnership is granted. However, if your financial circumstances change after divorce/ dissolution of civil partnership, you may be able to get maintenance with the help of a solicitor.

Please note that the paragraphs below relating to separation, reconciliation and consent, do not apply if the grounds for applying for a divorce/ dissolution of civil partnership is the issue of an interim gender recognition certificate.

You and your spouse / civil partner must have lived apart either:

• For at least one year and your civil partner consents to the divorce in writing,or
• For at least two years.

This period must be completed before the application is made and must be without a break. There is only one exception: if during the separation period you have lived together temporarily for not more than six months in all, in a final attempt to make the marriage / civil partnership work, you may still be eligible to apply for a divorce / dissolution of civil partnership under the simplified procedure.

For example, if during the separation period you have attempted a reconciliation for five months then you must wait either:

• For at least one year and five months from the date of the original separation (and obtain the consent of your husband or wife),or
• For at least two years and five months from the date of the original separation before applying for a divorce/ dissolution of civil partnership.

Is there a reasonable chance that you and your spouse / civil partner can settle your differences and resume normal married life / civil partnership? If you are satisfied that there is now no possibility of your marriage / civil partnership succeeding, you must state on the application that there is no prospect of reconciliation and that you consider that your marriage / civil partnership has broken down irretrievably.

(One year cases only.) If you are applying for a divorce/ dissolution of civil partnership because you and your spouse / civil partner have lived apart for at least one year, your spouse / civil partner must also consent to the divorce,in writing.

The proceedings can be stopped at any point before the divorce / dissolution of civil partnership is granted if you change your mind, but you must tell the court without delay.

Once the application has been registered the court fee cannot be refunded.

You cannot claim from your spouse / civil partner any out of pocket expenses you may incur under the simplified procedure.

You may be entitled to received advice and assistance from a solicitor under the Legal Advice and Assistance Scheme.

In certain circumstances the court may require a witness (not your spouse / civil partner) to confirm the facts stated in your application. Should this need arise, the witness must be prepared to sign a form (called an affidavit) before a justice of the peace, notary public or commissioner of oaths.