Recently in England, around 80 couples were erroneously granted a divorce earlier than they were legally allowed to, due to a glitch in an upgrade to an online system. In England, you need to have been separated for at least a year and a day to apply for a divorce. An online system error allowed divorces to be processed for couples who had been separated for a shorter period of time.
In Scotland, if you wish to apply for a divorce, you will usually make an application to the Sheriff in your local Sheriff Court. You have to establish that your marriage has broken down irretrievably, and that there is no prospect of a reconciliation. You can establish an irretrievable breakdown in one of four ways. These are as follows:
- You and your spouse have been separated for a year and your spouse consents to the divorce.
- You and your spouse have been separated for two years, after which time you no longer need the consent of your spouse for the divorce to be granted.
- You can prove that your spouse has committed adultery (however, this ground does not apply to same-sex marriages). If this is the case, there are no time constraints, and you can apply for a divorce immediately
- You can establish that your spouse's behaviour has been unreasonable and that you cannot reasonably be expected to continue living with them. As with adultery, a divorce can be applied for immediately using this ground.
You can also prove irretrievable breakdown of marriage if one spouse has changed gender and been issued with an interim gender recognition certificate, under the Gender Recognition Act 2004.
Even though there are grounds for divorce that take into account the behaviour of one spouse, all divorces in Scotland are ‘no-fault’, which means that the behaviour of the spouses will have no bearing on the division of the matrimonial assets. . The splitting of matrimonial property will always be based on a fair division.
The position in England in relation to these mistaken divorces may cause significant problems for those involved. A decision is yet to be made about whether the mistakenly granted divorces will be allowed to stand, however, the consequences of these couple's divorces being held void would be significant, particularly for individuals who have remarried following the granting of divorce.
Our Family Law team will be able to advise on whether you have grounds for a divorce. We can also advise you in relation to the division of your matrimonial property and the preparation of a Separation Agreement , to regulate childcare arrangements and finances, before applying for a divorce.
We can help with both drafting a Separation Agreement for you and then applying for a divorce. For more information or advice, contact a member of our specialist Family Law team on 03330 430150.
