What Happens When Only One Person Wants A Divorce?
Here we look at what happens when only one person in a marriage wants a divorce.
In Scotland, most divorces are concluded on a no-fault basis, whereby neither party is at fault for the breakdown. In these cases, non-consent by one party extends the required period of separation/non-cohabitation from one year to two years.
Where one party is legally at fault for the breakdown of the marriage, consent of both parties is not required.
Non-Cohabitation Before No-Fault Divorce
In Scotland, the most common reason for a no-fault divorce is irretrievable breakdown due to non-cohabitation. Neither party need be at fault, but they must not have lived together as man and wife for an extended period; one year with consent, two years without.
The distinction of living together as man and wife is important as some couples may continue to cohabit for financial reasons despite living as a separated couple.
Additionally, this period of separation need not be continuous – the Court accepts that attempts at/moments of reconciliation can and will take place. For more detail, read our blog on no-fault divorce.
Consent and Fault Based Defence
Where fault is involved, a period of non-cohabitation is not required. There are two key grounds for fault-based divorce:
· Adultery – An objective fact of whether one party has committed adultery.
· Intolerable Conduct/Unreasonable Behaviour – When one party has behaved in such a way that the pursuer cannot reasonably be expected to cohabit with the defender.
Cases of adultery are generally clear cut - it either happened or it did not. What qualifies as unreasonable behaviour, on the other hand, is slightly more complex and is contextual to the case, dependant on whether the particular involved party can be expected to put up with the relevant behaviour, not just someone in general.
For more information on unreasonable behaviour, click here.
Get in Touch
As can be seen, consent is never outright required for divorce, but it can affect the timescales involved.
If you anticipate that the other party to your marriage may withhold consent and you need advice on how this might affect your divorce, reach out to one of our experienced solicitors today.