Death and divorce

[Ina]

Hi, I have a problem that I hope someone can shed light on.

I found a Florida death record on Ancestry for an American individual who died on January, 1975. His age, full name including unusual middle name are exactly the same as the person I am researching. He was married to a Scottish girl and they separated and she returned to Scotland. The problem is his divorce records at NRH Scotland state that he was divorced in 1976. Is it possible that he applied for a divorce and it wasn't granted until after his death. How long does it take for an uncontested divorce to be granted in Scotland?

His former wife was not aware that he had divorced her, actually I'm the one who told her that she was divorced after my visit to NRH.

Ina

[SarahND]

Interesting problem, Ina! When was the petition for divorce registered? I wonder if there could be an enforced waiting period before the divorce goes through. In California I believe it is (or was) 6 months, but if he died in January it would have to be at least a year.

I hope someone on the forum knows the rules in Scotland.

Best wishes,
Sarah

[LesleyB]

Hi Ina

From some of my own family research I am aware that it is not unheard of for someone not to know that they had been divorced. One person in my tree (1970s) filed for divorce - he had not seen his wife for about 16 years as far as I remember and he had no idea where she was living - attempts to contact her had failed as far as I could gather. The divorce was granted as they had been apart for over the required period. However, when the (ex)wife died, she was listed as "wife of...", which would suggest that she did not know and the informant was not aware either that she had been divorced. I suppose if communication has broken down such that someone's whereabouts are unknown, they cannot be informed that they have been divorced.

The law changed in Scotland in 1976 (so I'm thinking the timing may be a significant factor, as it was in the case in my tree) - The 1976 Divorce Act for Scotland provided for no-fault divorces for irretrievable breakdown for causes of adultery, desertion, unreasonable behavior, 2 years separation and consent of both spouses, or 5 years separation.
This meant that people who previously could not have got a divorce without a court case, witnesses etc, could now divorce more easily, if the above time limits applied.

Best wishes
Lesley

[Currie]

It seems to me that if one of the parties to a marriage died before a divorce was finalized then the divorce would be null and void. That’s unless there is now such a thing as a posthumous divorce. The status of the survivor would be either widow or widower and not divorced. I think it would be the same the other way round i.e. if a divorcee’s former spouse dies then, if not remarried, their marital status remains as divorced and not widowed.

Alan

[carolineasb]

The answer to your question re length of time for undefended Divorce to be granted is (and not meaning to be rude): How long is a piece of string? So many factors can change the length of time it takes.

Can I ask, have you actually seen the Extract Decree of Divorce? Or is it just their names indexed from a Register of Divorce Actions? Is the fact that they are divorced marked on the original Marriage registration register entry? It does seem odd the time difference. I wonder why he raised the action when he was living abroad? This makes procedure difficult with regard to instructing a Scottish Solicitor. Was she definitely in Scotland? Are you sure it was definitely him who died in the US? I have 2 members of the one family in my tree who have exactly the same name including middle name and are born in the same year to different parents.

Also, where someone's (a Defender's) whereabouts are unknown and unable to be ascertained, there are "other" methods of service including advertisement in a local newspaper circulating in the area where they were last known to reside or by display on the "Walls of Court". This may explain why some people do not know they are divorced. The Sheriff Court Rules including those for service of documents are published online.

[Currie]

Hello Ina,

Something you could try is a search in Google News Archive for his or her full name. I seem to remember there being a few Florida newspapers there. You never know your luck with this sort of thing.

When you get the search popup insert the name in the exact phrase box and see what happens. http://news.google.com/news/advanced_ne ... ?as_drrb=a

All the best,
Alan

[Ina]

Hi Alan,

Thanks for that link. When I posted his full name only one article came up, and that was his whole genealogy taken from someone's Family Tree Maker. I had seen this tree on ancestry, with lots of names marked as "living person". However this article I got from your link gave me the names of the living people =D> It is most definitely the family of the person I am looking for.

thanks again.

Ina

[ninatoo]

Wow Ina, what a lucky find! Well done again, Alan!

[AnneM]

Hi Ina. Your divorce/death query is a mystery. The Divorce (Scotland) Act 1976 came into effect on 1st January 1977 so both the chap's death and the divorce in NAS pre-date the 1976 Act law. As with a previous poster I would be puzzled as to why someone living in the US would divorce in Scotland though it could be because the governing law was that of the defender's domicile. Not sure what the law in that respect was at that time. However you can't be divorced after your death because the marriage is already terminated. I am also fairly sure that at that stage you had to appear personally even if the divorce was undefended....I don't think that pre-1977 you could do divorce by sworn statement evidence. It is certainly the case that someone can be divorced without his or her knowledge if his or her whereabouts are unknown and the notification could be done in the papers or on the walls of court but the separation grounds were not in available then so if he divorced his wife he would have to prove her adultery, cruelty, desertion (most likely), incurable insanity or sodomy (difficult) or bestiality!!

Most confusing,

Anne

[Ina]

Hi, I decided to bite the bullet and send away for the death record that I thought was the individual I was looking for. Got the record in the mail today and it sure is the person I thought he was. He died February 1975 and yet his divorce was granted in Scotland on November 3, 1976 .........one year and nine months after his death. One never knows what they will find doing genealogy research.

Ina