Same Sex Divorce in Scotland

A divorce is the ending of the legal contract of marriage and you can only get a same sex divorce by applying to the court, usually the Sheriff Court, to grant a decree of divorce

If you and your spouse can agree on any 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.

A same sex divorce can be applied for under two different procedures, depending on your circumstances:

• Simplified/ ‘DIY’ procedure – this is also 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 same sex divorce. The most common ground is if you can establish that the marriage has broken down irretrievably.

There are three different ways you can show irretrievable breakdown of the marriage:

1. You have been separated from your spouse for one year and your spouse is prepared to consent to the dissolution.
2. You have been separated from your spouse for two years. You can then go ahead with a dissolution without your spouse’s consent.
3. You can establish that your spouse’s behaviour is such that you cannot reasonably be expected to continue to live with them – this is often 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.

These grounds are largely the same as for heterosexual couples on divorce with the exception of adultery, which is not currently a ground for same sex divorce. This is due to its definition (adultery is defined in the common law as voluntary sexual intercourse between a spouse and a person of the opposite sex outwith the marriage). However, adultery would be a ground if a spouse in a same sex marriage was unfaithful with a member of the opposite sex. For a spouse in a same sex marriage who has discovered that their partner has been unfaithful with a member of the same sex, they could consider applying for divorce on the ground of their partner’s behaviour instead.

The second ground for divorce is where an interim gender recognition certificate has been granted. Previously, the Gender Recognition Act 2004 required a person undergoing gender recognition treatment to be divorced (or their civil partnership dissolved), before they would be given their full Gender Recognition Certificate. That was on the basis that same sex marriage was not legal. Now, couples can change gender without the need to seek a divorce or dissolution of their Civil Partnership.

Same sex spouses are entitled to the same financial provision as heterosexual spouses on divorce Find out more about the division of assets on separation.

This will depend upon your circumstances and what childcare and financial arrangements need to be sorted out. However, if those have already been resolved, or if there are no such matters to sort out, then an uncontested divorce can be granted within six to eight weeks, assuming there are no other complications (such as locating your spouse or serving papers on them).