In Scotland there is one ground for divorce of married couples, namely where the marriage has broken down irretrievably. This can be demonstrated by showing that the parties have not lived together as a married couple for more than two years, or one year if both parties consent to the divorce. Alternatively the marriage can be shown to have broken down irretrievably if there is adultery or if unreasonable behaviour can be shown. Unreasonable behaviour could be, for example, violent or abusive behaviour of either a physical or mental nature. It is fair to say that these latter grounds are used less frequently now that the periods for non-cohabitation have been reduced.
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Prior to divorce it is advisable to consider resolving the financial aspects of the separation and to make arrangements in respect of any children of the marriage. Often that is negotiated in advance of a divorce. Where the parties are able to reach agreement on these matters, then a Separation Agreement can be entered into to deal with these points. Thereafter a divorce can proceed, these matters having already been attended to in the Separation Agreement. It may even be possible, in cases like this, to divorce using the simplified DIY procedure where the breakdown is shown by separation for more than 2 years (or 1 year if both have consented).
However sometimes agreement will not be possible and a divorce action would then have to take these matters into account. In cases like this, enforceable orders can be sought from the Court by either party to sort out the financial situation, and to make appropriate arrangements for the children of the family to ensure that their welfare is safeguarded.
All of these issues require careful consideration before divorce is contemplated and we would be happy to have a discussion with you about this and advise you on the best arrangements in your particular circumstances. Where possible we will endeavour to resolve matters for you by negotiation with minimum court involvement.
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