Where a DIY divorce is unavailable, a pursuer should file an application for an ordinary divorce.
Before you file...
(1) Grounds for divorce
As a first step, read Divorce 101: Grounds For Divorce - Scotland (#6).
(2) Should I hire a solicitor?
Yes, you are strongly advised to retain a solicitor for an ordinary divorce.
Always ask for an estimate of costs and the hourly charging rate when you first see a solicitor, but be prepared for this estimate to change as your case goes on.
You should also ask for an estimate of 'outlays' - costs that the solicitor will have to pay out on your behalf, such as court fees, advocate fees, and property valuations.
(3) What about legal aid?
Around three quarters of Scottish adults now qualify for legal aid. If your income, after paying essential expenses such as your mortgage, tax and childcare, is £25,000 or less, you may qualify. Visit the Scottish Legal Aid Board website for more information.
(4) Court costs
If you are on a low income, you should complete a fee exemption form and request a waiver of court costs. For more information, speak to your local Citizens Advice Bureau and visit the Scottish courts website.
Ready to file...
(1) Divorce Summons / Initial Writ
The ordinary divorce procedure begins with the solicitor for the pursuer drafting a summons (in the Court of Session) or an initial writ (in the sheriff court).
(2) Service
The divorce application is then sent to the court and a copy is then served on the defender. Where adultery is a ground for the divorce, a copy is also sent to the third person involved if he or she is named in the application.
(3) Response
After service, the defender has 21 days to respond to the summons / initial writ. If the defender fails to respond, the case will proceed as an undefended divorce.
(4) Undefended divorce
If the defender does not oppose the application, the divorce can proceed as an undefended case. In this event, neither partner usually has to go to court.
The pursuer must submit sworn statements (affidavits) to the court, however, alongside another fee.
The court will then examine all the documentation submitted in the case and issue a divorce decree unless it requires further information.
NB. On average it takes about three months from drafting the application to obtaining a decree in an undefended case.
(5) Defended divorce
If the defender does not agree about the grounds for the divorce, or issues about the children, money or property the divorce application will go to court as a defended case. Defended cases can be long and expensive, but it may be possible to settle disputes using mediation or the collaborative family law process.
If agreement is not possible, however, the court will schedule an Options Hearing to give the parties a chance to meet with a sheriff and reach an agreement without proceeding to a full Proof Hearing. Where the parties still disagree the hearing at least serves to focus on the area(s) of discord between the parties.
If the matters at issue are not resolved the case then proceeds to a 'proof.' A proof is a full court hearing where evidence is given by witnesses, etc. Less than 3% of divorce cases reach this stage, however, as most couples eventually reach an agreement with the help of their solicitors and mediation.
** Additional Information & Advice **
You can obtain further information about divorce in Scotland on FindLaw.
Depending on your circumstances, however, you may want to speak with a solicitor who specialises in family law. You can be matched with a solicitor in your area for free via solicitor matching services, which can also help you to understand the best course of action and whether you are ready to hire a solicitor.
