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.