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.

There are two ways to obtain a divorce in Scotland: 

1. DIY divorce (a.k.a. simplified divorce); or
   
   
2. Ordinary divorce. 

In this blog, we'll take a look at DIY divorce. 

[To read about ordinary divorce, read Divorce 101: Ordinary Divorce Application (#44).]

Proposals to further open up family courts to the media have been announced as part of new legislation put before Parliament this week.

Clauses in the Children, Schools and Families Bill build on changes announced in April that allowed the media to attend most family proceedings for the first time.  The legislation aims to balance the need to make family courts open and accountable against the importance of protecting the welfare of children and families involved in family proceedings.

In recognition of the significance of these reforms in a sensitive area, the changes will be introduced in phases to assess their impact.

Under the Disability Discrimination Act, it is unlawful for employers to discriminate against disabled people for a reason related to their disability. 

Recently in the case of Coleman v. Attridge Law, the Employment Appeals Tribunal ('EAT') held the Act also protects people who, although not themselves disabled, suffer discrimination or harassment owing to their association with a disabled person - so-called 'associative discrimination.'

Notice of application for decree nisi to be made absolute

To obtain the decree absolute, file form D36 (notice of application for decree nisi to be made absolute).

After the court receives form D36, it will check:

1. Arrangements for the children (if applicable) are satisfactory or even if they are unsatisfactory there is no reason to delay issuance of the decree absolute;
   
   
2. If the petitioner filed the application, six weeks and one day have passed since the decree nisi was pronounced; and, if the respondent filed the application, an additional three months have passed;
   
   
3. There is no other reason why the decree nisi cannot be made absolute.

Granting the decree Absolute

Provided the court is satisfied that everything is in order, it will issue the decree absolute (form D37).

After this happens, the parties are no longer married and are free to re-marry.

Financial orders / ancillary relief

Six weeks and one day after the court pronounces the decree nisi, the petitioner can apply for a decree absolute.

** Note: the respondent, meanwhile, has to wait an additional three months after the six weeks have expired before he or she can apply.

Forms 66 and 84B

If the couple have children, they should check that the court has sent them form D84B (notice of satisfaction) which says the judge has decided that the decree absolute need not be held up on account of the children.

The decree nisi cannot become absolute if the court sends form D66 (notice decree should not be made absolute).  Read Divorce 101: Child Custody - England & Wales (#19) for more information.

Filing delay

No. 40 - Decree Nisi - England & Wales

After the court receives the forms and other documents discussed in Part 39, a judge will check the sufficiency or otherwise of the divorce petition and the supporting affidavit evidence.  The court will also check that financial issues and arrangements for the children have been agreed or are in the process of being resolved.

If the judge is satisfied the petitioner is entitled to a divorce, he or she will issue a certificate of entitlement to a decree and fix a date for the pronouncement of decree nisi.  Conversely, if the judge is not satisfied, the petitioner will be given an opportunity to file additional evidence.

Decree nisi

If the judge decides the petitioner is entitled to a divorce, the court will send them Form D84A (certificate of entitlement to a decree).  Form D84A states the date and time that the judge will pronounce the decree nisi.  There is usually no need to attend court for the pronouncement.

After the court issues the decree, it will send the petitioner form D29 (decree nisi).

No. 39 - The Answer - England & Wales

Contested divorce

If the respondent (or any co-respondent) want to contest the divorce petition, they should file a defence (known as the 'answer') within 29 working days of receiving the petition.  The fee for filing an answer is currently £200.

Directions for trial

If the respondent (and any co-respondent) answers 'No' to the question on form D10 'Do you intend to defend the case?', or if he or she fails to send an answer within the prescribed period, the petitioner can apply for directions for trial.

The petitioner will need copies of form D84 (application for directions for trial) and form D80 (affidavit of evidence) from the court office.

When the petitioner asks for form D80, they should tell the court the grounds for divorce, since there is a different version of form D80 for each of the five grounds:

No. 38 - Acknowledgement of Service - England & Wales

As discussed in Part 8 of Divorce 101, the divorce procedure in England & Wales has three main stages: service of the divorce petition; decree nisi; and decree absolute.

In this blog, we continue our analysis of the first stage: service of the divorce petition.

Service of petition

After the court receives the divorce petition, it will send a copy to the the respondent (and any co-respondent).

Alongside the petition, the court will send the respondent a statement of arrangements (if the couple have children) - this is served only on the respondent, even if there is a co-respondent who will be served with the other documents. 

The court will also send a 'notice of proceedings' and 'acknowledgement of service' form D10.

Notice of issue of petition

The court will then send the petitioner form D9H 'notice of issue of petition,' which states when the petition was sent to the respondent, acts as a receipt for payment of court fees (if applicable), and provides a divorce case reference number.

It also tells the petitioner what to do if the respondent (or any co-respondent) fails to reply to the petition.

Acknowledgement of service

(i) Respondent's options

Subject to domicile and residency requirements, either party can file the divorce petition provided they have been married for at least one year.

Most people opt to petition their local court for a divorce, but this is not obligatory; the petition can be filed at any divorce county court or the Principal Registry in London.  (NB. There is a list of all divorce county courts in leaflet D183.)

To file the petition, you will need three copies of form D8 (the divorce petition).  If you have children you will also need three copies of form D8A (statement of arrangements for the children).  One copy of these forms is for you to keep, one copy is for the court, and one copy is for the court to send to your husband or wife.

No. 36 - Ancillary Relief - Part 3 - Northern Ireland

Final hearing

At the final hearing, the court has the power to issue any of the following orders:

1. Consent Order
   
   A Consent Order is one that both parties agree to before it is issued.  The parties hammer out a deal and then ask the court to issue an order reflecting the terms of their agreement.  The court should approve the order if it is in the best interests of the parties (and their children, if they have any).
   
   
2. Court-Imposed Orders
   
   Where the parties fail to reach an agreement, the court will hear arguments and then impose a settlement by issuing one or more of the following:

(a) Lump Sum Order

One party pays a specified sum of money to the other as compensation for their ownership interest in an asset or assets.

(b) Periodical Payment Order

One party pays money to the other every month, e.g., spousal maintenance &/or child maintenance.

(c) Secured Periodical Payment Order

Here, payments are secured upon a particular asset.  Thus, if the party who is supposed to pay money dies or defaults, the other party can demand an asset be sold to fund future payments.

No. 35 - Ancillary Relief - Part 2 - Northern Ireland

Second Review Hearing / Financial Dispute Resolution

At least 21 days prior to the Second Review Hearing, the following items must be filed with the Matrimonial Office:

1. a statement of core issues;
   
   
2. a written estimate of costs to date, including a breakdown of solicitors' fees together with outlays and VAT;
   
   
3. a paginated bundle of any further discovery ordered at the First Review Hearing; &
   
   
4. copies of experts' reports or valuations to be relied upon.

All parties, solicitors and counsel briefed in the case must attend the Second Review Hearing.  The purpose of the hearing is to define issues, save costs, and endeavour to settle the case.

No. 34 - Ancillary Relief - Part 1 - Northern Ireland

If the parties fail to reach an agreement on the division of financial assets, they can apply for a court order, which is known as ancillary relief. 

First Directions Hearing

Once the court receives the application for ancillary relief, it will schedule a preliminary hearing before the Master (High Court Matrimonial) to consider the case.  This is known as the First Directions Hearing. 

At this hearing, the Master will issue guidelines and set a timetable for the filing of financial disclosures and other paperwork.

In a defended divorce, where the parties cannot agree on the division of matrimonial property, they can ask the court to make one or more financial orders, namely:

1. for the payment of a capital sum;
   
   
2. for the transfer of property;
   
   
3. for the payment of periodical allowances (e.g., aliment); &
   
   
4. for other incidental orders (e.g., to split pensions or earmark pension lump sums).

Options Hearing

After it receives an application for a financial order, 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.