Divorce – non-financial provision cases

Only occasionally will it be reasonable to grant civil legal aid for divorce proceedings in the Court of Session as generally these can be dealt with in the sheriff court.  The inclusion of a large financial claim does not necessarily mean that a case has sufficient complexity for this. Cases justifying Court of Session proceedings should be rare. However, factors we may take into account include:

• Likely cost of Court of Session proceedings compared to sheriff court.
• If the Court of Session is a more reasonable venue because of factors such as the effect of local publicity on the parties, local court policy or jurisdictional issues.

If the parties involved agree the marriage or civil partnership has irretrievably broken down but dispute the cause, defences on the merits and cross actions should not be encouraged.  We will not grant legal aid for a cross action of divorce or dissolution of civil partnership where your client is not defending the partner’s action on the merits.  If the outcome of ancillary matters is affected, we may consider a cross action reasonable.

Applications to pursue

The Civil Evidence (Scotland) Act 1988 requires that evidence establishing the grounds of an action of divorce or dissolution of civil partnership must consist of, or include, evidence other than that of the parties in the marriage or civil partnership. We need to see a statement from your client that speaks to the breakdown of the marriage or civil partnership as well as appropriate evidence from a third party.

Interim Gender Recognition Certificate

If the proposed ground for divorce or dissolution is that either party has been issued an interim gender recognition certificate we do not need a statement from a third party to establish the grounds. A copy of the interim gender recognition certificate is sufficient.

We will need the usual supporting third party statements if you are seeking ancillary craves in relation to financial provision and  orders in relation to children or other competent orders.

Applications to defend

A bare denial of the pursuer’s averments is rarely satisfactory.  If the pursuer’s averments are specific, your client should be able to answer them in detail.

A partial denial, even if well supported, is not enough to establish probable cause as if your client admits, even in part, averments that could still give grounds for divorce or dissolution.

• It may be unreasonable to finance a defence on the merits merely to give your client an opportunity of refuting certain allegations they find objectionable.
• If the conduct is admitted, it may be unreasonable to give legal aid for your client to argue that the conduct did not contribute to the breakdown of the marriage or civil partnership or that it has not broken down.

We need:

• A statement from your client denying the factual averments made within the pleadings
• A witness statement that offers support for your client’s version of the marriage or partnership. If unavailable you should give full reasons why.

It must be shown that:

• An immediate divorce or dissolution would bring some direct benefit to your client
• It is reasonable to make legal aid available immediately rather than waiting for the appropriate period of separation to elapse.

Examples of situations where your client may benefit from divorce or dissolution on a fault-based ground, despite the absence of ancillary craves, include:

• Where all ancillary contentious matters have been settled by agreement and both parties want to resolve matters as soon as possible.
• Where your client wants to remarry or enter a new civil partnership.
• Where your client is suffering from harassment or emotional pressure from the estranged spouse or civil partner

We will consider any reason put forward by your client who wants to proceed with an immediate divorce or dissolution.

You should make it clear that your client is not able to raise an action of divorce or dissolution under the simplified procedure.

If your client is seeking divorce based on one year’s separation and there are no ancillary craves, we do not need to see statements, other evidence or letters of consent.  Instead, select the box confirming there is support for the period of separation and consent from the opponent to the action when completing the application.

Since it is incompetent for the court to pronounce decree of divorce or dissolution where the defender withdraws their consent, we will not consider any applications to defend.

You should make it clear that your client is not able to raise an action of divorce or dissolution under the simplified procedure.

If your client is seeking divorce based on two years separation and there are no ancillary craves, we do not need to see statements or other evidence.  Instead, select the box confirming there is support for the period of separation when completing the application.

A defence can be taken on the ground that the parties have not been separated for two years.  You should include a supporting statement confirming the actual date and duration of separation.

Irretrievable breakdown is established if the defender has ever behaved in such a way that the pursuer cannot reasonably be expected to cohabit with him or her.  If your client is not seeking ancillary craves, they will need to show there is a direct benefit from an immediate action of divorce or dissolution as opposed to waiting for the relevant period of separation to elapse.

Our evidential requirements are:

• Statement from your client showing the marriage or civil partnership has broken down as a direct result of the opponent’s behaviour and it is unreasonable to be expected to continue to co-habit.
• Evidence of unreasonable behaviour from a third party.
• A statement of a witness that speaks to the behaviour complained of directly

A statement from witness that lends colour to a detailed statement of your client may be acceptable, even if it does not corroborate the worst part of the behaviour complained of.

• In cases involving domestic violence, a statement from a witness confirming your client’s allegations of violence or confirm seeing evidence of bruising/visible bodily harm would be helpful.

Such statements should clearly note which aspects are hearsay and which they have witnessed.

If there is no other evidence available a medical report may be needed.  To be of evidential value, it should refer to physical/ mental health treatment needed by your client arising from suffering inflicted by the opponent.

If defending an action, a statement from your client detailing the pursuer’s specific averments of behaviour, and a supporting statement should be provided.

Applications to pursue

In the case of divorce actions, we need a statement from your client showing the marriage has broken down irretrievably because of adultery.

Evidence of adultery, from a third party, must also be provided.  Examples of such evidence are:

• A report by an enquiry agent on observations showing, for example, familiarities, association, cohabitation, overnight visiting. (A single enquiry agent’s evidence will normally be sufficient.)
• Evidence of witnesses speaking to affectionate familiarity between the defender and paramour.
• Evidence of children of the parties on contact visits.
• The wife having a child by another man. We would require evidence that the husband was not or could not be the father.
• Another woman having a child by the husband. We require some form of evidence of this such as a birth certificate of the child in question showing the defender’s name as father or a statement from someone who can speak to the circumstances of the birth.
• Admissions (in the form of statements or letters) by both the opponent and the paramour.

In a civil partnership, adultery is not a ground of dissolution so we will not grant legal aid to pursue actions of dissolution based on adultery.

Applications to defend

In the case of divorce actions, we need a statement from your client answering the averments and a supporting statement from a witness.  If no supporting evidence is available then provide a detailed explanation for this.  If the adultery allegedly took place with a named individual, you should produce a statement from that person which supports your client’s denials.

Adultery is not a ground of dissolution of a civil partnership so it is unlikely you will have to defend such an action.

Applications to pursue

You should make it clear that your client is not able to raise an action of divorce or dissolution under the simplified procedure.

Our evidential requirements are:

• A statement from your client setting out details of the date of marriage or civil partnership, showing that an interim gender recognition certificate has been issued to either party since then and that your client is seeking a divorce or dissolution as a result, and setting out the position relating to children, ancillary orders etc.
• A copy of the interim gender recognition certificate. We do not need a third party statement here. We consider the interim certificate sufficient but if there are ancillary craves for financial provision or in relation to children you should provide the usual supporting statements.

Applications to defend

A defence can be taken on the ground that an interim gender recognition certificate has not been issued.

Our evidential requirements are:

• Your client’s statement explaining why they believe an interim gender recognition certificate is absent or is not a valid certificate
• A letter from the Gender Recognition Panel named on the certificate commenting on whether the certificate is genuine.