Divorce in Scotland and Legal Separation

A divorce is the ending of the legal contract of marriage and you can only get a divorce by applying to the court, usually the Sheriff Court, to grant a decree of divorce. A civil partnership is legally ended by dissolution rather than divorce, although the process is similar.

If you and your spouse can agree on all issues arising from the separation before applying for divorce, the application for divorce is then undefended. This means that neither party has to go to court to give evidence for the divorce, and makes the whole process much more straightforward. You will usually need a Solicitor to draft and submit the application for you.  

If, however, you cannot agree, you may have to raise a court action for the court to resolve the issues as part of the divorce proceedings. This can be a costly process with Solicitor representation on both sides.

There are two ways to apply for a divorce:

• Simplified procedure – this is also sometimes referred to as a ‘quickie divorce’ or ‘DIY divorce’, and may apply to you if there are no financial matters to resolve, or these have already been decided and drawn up in a formal Separation Agreement, and there are no children under 16 of the marriage
• Ordinary procedure – in all other cases

In order to apply for a divorce, you first need to establish grounds for divorce

There are only two grounds you can use for divorce. The most common is if you can establish that the marriage has broken down irretrievably. There are four different ways you can show this irretrievable breakdown:

1. You have been separated from your spouse for one year and your spouse is prepared to consent.
2. You have been separated from your spouse for two years. You can then go ahead with a divorce without your spouse’s consent.
3. You are able to prove your spouse has committed adultery. You can then apply for a divorce immediately. However, if you have known that your spouse has committed adultery and you continue to live with them whilst putting up with the situation, it may be argued that you have condoned the adultery and you may not then be able to  proceed with a divorce on that ground.
4. You can establish that your spouse’s behaviour is such that you cannot reasonably be expected to continue to live with them – this is referred to as ‘unreasonable behaviour’. You can then apply for a divorce immediately. You would have to provide evidence from someone else to confirm the position. Unreasonable behaviour does not necessarily mean just physical abuse. It can also cover issues such as alcohol or drug abuse or gambling, as well as emotional abuse.

The other ground for applying for divorce is where an interim gender recognition certificate has been issued to one of the parties, under the Gender Recognition Act 2004.

Our team can advise you whether you have grounds to apply for a divorce.

There is a ‘no fault’ principle in Scotland, which means that no matter what the ground for divorce is, neither party will be penalised financially for their behaviour.

Before you apply for a divorce, you may first wish to consider reaching an agreement over the care arrangements for your children and also how any finances will be split.

This will vary depending on the circumstances of your case. However, if matters are straightforward and you are not asking the court to rule on financial matters or care arrangements for any children, then usually a divorce can be granted within six to eight weeks, assuming you meet one of the grounds for divorce.

In Scotland, this normally refers to the Simplified Divorce. This can be used if there are no outstanding financial matters to sort out (or if these have previously been agreed and reflected in a Separation Agreement) and there are no children of the marriage under the age of 16 years.

Under a Simplified Divorce, you can complete the divorce application form yourself, although a Solicitor has to notarise the application form before it can be lodged with the court. From start to finish the process takes approximately eight weeks to complete. Find out more in our Simplified Divorce section.

If you have agreed all financial matters and care arrangements for any children, and had the terms legally drawn up in a Separation Agreement, then you can apply for a divorce if you meet one of the grounds for divorce listed above.

If not, then the first step is to have a Separation Agreement (also referred to as a Minute of Agreement) prepared by a Solicitor. This is a legally binding document formally recording how the matrimonial assets and debts are to be divided and it can also set out where the children will live and the amount of child maintenance/support to be paid.

Alternatively, if you and your spouse are unable to agree on matters then one of you may have to consider raising a divorce action and as part of that, you can both ask the court to determine how the finances will be split and the care arrangements for the children.

You should seek legal advice about applying for a divorce, as a Solicitor will be able to discuss the different options available to you. Depending on which ground you apply under, it may not matter that your spouse does not consent as in some circumstances you may be able to apply for a divorce without consent. Alternatively your solicitor may be able to help you negotiate the terms of a separation agreement with your spouse and a divorce can be applied for later.

In Scotland, the law states that each person is entitle to a ‘fair’ share of the matrimonial property – the assets accumulated during the marriage. In most cases, that will be a 50:50 share. However, there can be situations where a 50:50 share would not produce a fair split, in which case a person can ask for more than a 50 per cent share. You can find more on this in our Financial Divorce Settlements section.

There is no hard and fast rule. If parents are unable to agree on the care arrangements for the children, then the court can be asked to determine where the children should live. The legal test is what would be in the best interests of the children, so the court has a very wide discretion in deciding that. It is generally better if parents can come to an agreement about this and there are a number of alternative dispute resolution options which may suit your circumstances, rather than facing the uncertainty of a court order. You can find more on care arrangements in our  Child Issues section.

Yes. Many people simply cannot afford to run two households when they first split up, so it is not unusual for them to start their formal separation negotiations while still living together. A lot of people think that to be legally separated, you must physically live apart but that is not the case. The important date is the date that the couple stop living together as husband and wife.

Contrary to popular belief, it does not have to be the date a couple stop living together and one leaves the family home, although that will often be that date. Legally, it is the date the couple stop living together as husband and wife. Often a couple may continue to live together under the one roof, although they have separated. The date of separation is a matter of fact and if there is to be dispute about it then evidence will need to be produced to establish what date it was.

Tracing agents can be used to attempt to locate your spouse. If that fails, then there are traditional methods of serving court papers that can be used, including taking out an advert in the local newspaper and displaying a public notice in the local court.

Possibly. However, that alone is not enough to establish jurisdiction in the Scottish Court. This is a complicated legal issue, so you should get legal advice about your specific circumstances.