Divorce in Scotland is governed by the Divorce (Scotland) Act 1976 as amended by the Family Law Scotland Act 2006. There are only two grounds of divorce.
The first ground is “ a recognised gender change of either party to the marriage.” This is established by issuing an interim gender recognition certificate under the Gender Recognition Act 2004. The second and more common ground is the “irretrievable breakdown of the marriage”. Irretrievable breakdown may be established if at least one of four specific situations is proved:
1. The defender’s adultery.
2. The defender’s unreasonable behaviour. (Such behaviour by the defender that the pursuer cannot reasonably be expected to cohabit with them.)
3. Non cohabitation of the parties for a period of a least one year provided the defender consents to the divorce.
4. Non cohabitation for a period of at least two years. Consent is not required.
It is up to the party raising the divorce proceedings to prove on the balance of probabilities that at least one of the four situations exist.
In terms of adultery, the proceedings must be based on the defenders adultery. It is not possible for the pursuer to raise the divorce proceedings averring their own adultery. The adultery must be since the date of marriage.
If you are separated, but not yet divorced, and start a sexual relationship with another person (one act of adultery is sufficient) your spouse would have grounds to raise divorce proceedings on the basis of your adultery.
Divorce can be raised straight away on the basis of adultery or unreasonable behaviour. With the other two grounds, you either have to wait one year from the date of separation and require the consent of your spouse or wait two years from the date of separation, whereby consent is not required.
Because you deal with a solicitor for one matter does not mean that you should deal with them for every other matter. Law covers a wide variety of areas and over the years has become increasingly specialised. In recognition of this many solicitors and solicitors firms now specialise in specific areas of law.
At my firm Affinity Family Law we specialise in Family and Child Law as my expertise in these areas is recognised by my professional body the Law Society of Scotland who have dual accredited me as a specialist in both Family law and Child Law.
It is important that you find a solicitor who has the expertise and experience in the area of law that you want advice on. A solicitor might advertise that they are an expert or a specialist in a particular area of law but how can you be sure that they are what they claim to be?
The Law Society of Scotland holds a list of accredited specialist solicitors in around thirty different areas of law. These accredited specialists are vetted by the Law Society of Scotland and must have at least five years’ experience in their particular area of specialism and have dealt with numerous complex cases. The Family Law Association of Scotland also holds a list of accredited specialists in child and Family law.
Instructing an accredited specialist is not necessarily more expensive. The price a solicitor charges varies from firm to firm. You may find a firm with a solicitor who is an accredited specialist charges less than a firm who does not have a specialist.
Don’t be fooled by large firms with expensive plush offices and exorbitant fees. Check they have an accredited specialist.
Legal fees are not cheap. Make sure you are spending your money wisely. If you want to be sure of getting expert advice, instruct a Law Society accredited specialist. Most importantly make sure that the specialist will deal with your case personally from start to finish.
Affinity Family Law Specialists Renfrewshire’s Family Law Expert with over 23 Years experience. Good decision which was upheld on Appeal for the Husband in the recent Inner House case of McDonald v McDonald (CSIH 2015 61) which dealt with statutory Interpretation of the legislation in Scotland governing pension sharing.