Divorce (Scotland) Act 1976

JurisdictionUK Non-devolved
the marriage has broken down irretrievably F7orF18subject to subsection (3B) , an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the date of the marriage, been issued to either party to the marriage.since the date of the marriage the defender has committed adultery; orsince the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender; or. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .there has been no cohabitation between the parties at any time during a continuous period of F11one year after the date of the marriage and immediately preceding the bringing of the action and the defender consents to the granting of decree of divorce; orthere has been no cohabitation between the parties at any time during a continuous period of F12two years after the date of the marriage and immediately preceding the bringing of the action.(3) The irretrievable breakdown of a marriage shall not be taken to be established in an action for divorce by reason of subsection (2) (a) of this section if the adultery mentioned in the said subsection (2) (a) has been connived at in such a way as to raise the defence oflenociniumor has been condoned by the pursuer’s cohabitation with the defender in the knowledge or belief that the defender has committed the adultery.(3A) For the avoidance of doubt, in relation to marriage between persons of the same sex, adultery has the same meaning as it has in relation to marriage between persons of different sexes.does not apply where, under the Gender Recognition Act 2004, the Gender Recognition Panel issue a full gender recognition certificate to the person to whom the interim gender recognition certificate was issued, butcontinues to apply despite a full gender recognition certificate being issued to that person by the sheriff under section 4E of that Act.the consequences to him of his consenting as aforesaid; andthe steps which he must take to indicate his consent; andprescribing the manner in which the defender in such an action shall indicate his consent, and any withdrawal of such consent, to the granting of decree;(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(6) In an action for divorce the standard of proof required to establish the ground of the action shall be on balance of probability.(1) At any time before granting decree F8under paragraph (a) of section 1(1) , if it appears to the court that there is a reasonable prospect of a reconciliation between the parties, it shall continue, or further continue, the action for such period as it thinks proper to enable attempts to be made to effect such a reconciliation; and if during any such continuation the parties cohabit with one another, no account shall be taken of such cohabitation for the purposes of that action.(2) Adultery shall not be held to have been condoned within the meaning of section 1(3) of this Act by reason only of the fact that after the commission of the adultery the pursuer has continued or resumed cohabitation with the defender, provided that the pursuer has not cohabited with the defender at any time after the end of the period of three months from the date on which such cohabitation as is referred to in the said section 1(3) was continued or resumed as aforesaid.(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(4) In considering whether any period mentioned in paragraph (1) The court may grant decree in an action for divorce notwithstanding that decree of separation has previously been granted to the pursuer on the same, or substantially the same, facts as those averred in support of the action for divorce; and in any such action (other than an action for divorce by reason of section 1(2) (a) of this Act) the court may treat an extract decree of separation lodged in process as sufficient proof of the facts upon which such decree was granted.(2) Nothing in this section shall entitle the court to grant decree of divorce without receiving evidence from the pursuer.

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