Home > Legal > Divorce and Separation: The Law in Scotland

Divorce and Separation: The Law in Scotland

By: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 3 Nov 2018 |
 
Divorce Scotland Law Civil Partnership

The legal processes for divorce, civil partnerships and separation is different in Scotland from that of England and Wales. Here is a basic guide to Scottish family law.

Separation for Unmarried Couples

There is no legal process for ending a relationship for unmarried couples. If, however, you are unable to reach an agreement with regards to Child Contact Arrangements, the division of joint assets etc., you may be able to ask the courts for help.

Ending Your Marriage

In order to be able to end your marriage, you must ask the court to grant you a divorce. This can only be done on the grounds that the marriage has irretrievably broken down. The only other ground for divorce is if one party is beginning a sex-change and obtained a gender recognition certificate to be able to change from the sex registered at birth.

Grounds to Establish Irretrievable Breakdown of a Marriage

There are four ways to establish that your marriage has irretrievably broken down in the eyes of the Scottish courts. These are:
  • Unreasonable behaviour, such as domestic abuse, or other unreasonable behaviour. This is a broad ground and is the most commonly used in divorce proceedings
  • Adultery
  • Living apart for one or more years, if you both agree to a divorce
  • Living apart for two or more years, if one party does not want to divorce

Procedure

There are two ways to obtain a divorce in Scotland. The first way is known as the Do-It-Yourself procedure. This applies where you have been living apart, where neither party requires the court to make any financial provision, and where there are no children under the age of 16. This is the simplified procedure.

This procedure is summoned by filling out the prescribed forms, which can either be found on the court website for Scotland or from the local Sheriff Court. These must be submitted with the appropriate fee and an affidavit, which details your circumstances and the reasons for wanting a divorce. It should take approximately two months for you to hear whether your application was successful.

The second procedure is the more general procedure, where divorce matters are more complex. You will have to use this procedure if you have young children. In this case, it is necessary to issue a Writ for Divorce, usually in your local Sheriff Court. It is possible to do this without legal representation. It is important to consider getting legal help, especially if property and finance are involved.

Decree of Divorce

At the end of the process, you will be granted a Decree of Divorce. You will only be granted one if the court is satisfied that there is a plan to divide assets and that any children under 16 have plans for custody. You must prove that these plans are in place.The court can make various orders including interim care orders and decrees regarding the care of and residence of children.

The law in Scotland focuses on the same “clean break” principles as English Law. This means that, where possible, the court will try to prevent one party from having to pay a long-term entitlement to the other. Any marital assets will normally be divided fairly equally, unless this would create financial hardship for one party in favour of the other. This does not apply to the provision for children, which is detailed using current child support laws. Short-term provision can be made where you or your ex needs a transition to supporting yourself independently.

Civil Partnership

In Scotland, ending a Civil Partnership is very similar to ending a marriage and the same basic procedures apply. Again, if you and your partner share Parental Responsibility for your child, then the court must be satisfied that appropriate care arrangements are in place before a Decree of Dissolution will be granted.

Check out the Separated Dads Forum... It's a great resource where you can ask for advice on topics including Child Access, Maintenance, CAFCASS, Fathers Rights, Court, Behaviour or simply to have a chat with other dads.

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My partner is going through divorce and there are current arguments over the matrimonial property, the property was purchased may 2006 and my partner moved in Nov 2006. Him and his ex decided they wouldn't added him name to the mortgage because of the costs but paid for it out their joint. Mortgage payments were around £300 then they took the joint decision to increase to +£700 to clear the mortgage for 8 years. They got married 2 year into the relationship and it was at this point, the start of the marriage the payment towards the mortgage were doubled. They separated 2 years ago and becuase of the joint decisions and contributions the mortgage on the property has now been paid off. Her lawyer is arguing that the house was not matrimonial property although the mortgage was paid jointly through a joint acc for 80% of its term. when they were living there. We have received conflicting info from 2 lawyers and just looking for any thoughts you could help us woth
Help - 3-Nov-18 @ 10:45 AM
Is it a fundamental legal requirement to see a spouses pension assets before entering into a legally binding minute of aggreementas per the family act?.
Bruce - 4-Oct-18 @ 9:31 AM
i split with my ex girlfriend 3 years ago. i had to take her to court for more access for my daughter as she stopped me seeing her. i was aloud 4 hours a week and had to do exactly as i was told if i didn't, she said i had to get access through court which i did. i gained more access, i then attended mediation where we agreed to more contact 10 and a half hours a week, granted by the judge, i stupidly agreed to take it out of court thinking she would compromise but now its back to square one. she has reduced my hours because i have begged to have my daughter overnight which she refused i lost my temper as she is 4 now and i still haven't had her overnight. i have took her back to court now and looking for joint custody as i'm at my wits end with this women. what are my chances of getting joint custody or more contact. somebody please help me
jimbo - 21-Aug-18 @ 10:32 PM
My husband and I separated 6 years gone. We have a minute of agreement. He hasn’t seen our 2 boys for 5 and a half years (his choice) a liability order has been issued this week by the CSA. I am now liking to apply for divorce. Is there an estimate length of time for the issue of decree of divorce, my children are under 16 years of age.
Amarea - 11-Jul-18 @ 1:21 PM
Jiri - Your Question:
HiMy ex and I seperated in 2013 and divorced in 2015. We have an agreement between ourselves that I would have my son every fortnight over night on a Saturday to sunday then the following fortnight on a Sunday during the day. This has been regular for the past 5 years. Out of the blue she has decided to change it up without any discussion and told me I will now only have him from 12 to 5 on a Sunday barring special occasions.I'm unhappy with this new arrangement as it means I don't have him overnight.My ex and I have both moved on and have new partners and subsiquent children from the new relationships.At the time of seperate on she refused to sign a seperate on agreement. I have drafted a legal letter via my lawyer who states that after 5 years she cannot unilaterally change the contact arrangement without discussion, negotiation and compromise.Is it wise for me to go down the legal route or am I flogging a dead horse? I'm based in Scotland.

Our Response:
You can go down the legal route if your ex refuses to attend mediation. If you have had regular contact to your child to date and your ex has changed the arrangement for no proven good reason, then it is likely the court will reinstate your overnight access. So, it is very much worth taking the matter to court. Hopefully, it won't come to that and your ex may reinstate access. A solicitor's letter outlining your rights may work in the first instance.
SeparatedDads - 19-Jun-18 @ 12:55 PM
Hi My ex and I seperated in 2013 and divorced in 2015. We have an agreement between ourselves that I would have my son every fortnight over night on a Saturday to sunday then the following fortnight on a Sunday during the day. This has been regular for the past 5 years. Out of the blue she has decided to change it up without any discussion and told me I will now only have him from 12 to 5 on a Sunday barring special occasions. I'munhappy with this new arrangement as it means I don't have him overnight. My ex and I have both moved on and have new partners and subsiquent children from the new relationships. At the time of seperate on she refused to sign a seperate on agreement. I have drafted a legal letter via my lawyer who states that after 5 years she cannot unilaterally change the contact arrangement without discussion, negotiation and compromise. Is it wise for me to go down the legal route or am I flogging a dead horse? I'm based in Scotland.
Jiri - 18-Jun-18 @ 4:37 PM
Lee 87 - Your Question:
Hi I'm wondering if anyone can help? My partner has been separated from his partner for 7 years, they have a 9 year old and contact is never frequent she stops and starts him from seeing him for no reason, since I came on the scene 3 years ago things have became worse stopping access for long periods of time, we had to pay for a court order to get him twice during the week for 3 hours and he stays over every Friday Saturday to Sunday night, she never complies and it's spreadic one week here 2 weeks off and sometimes no contact atall, I have my own children and she's uses every excuse he doesn't like them when in fact the kids get on pretty well, she says crazy things to her son which she repeats and also sends me abusive messages and has lashed out at my partner several times, she doesn't work and refuses to take the child to very important hospital appointments, appointments that my partner offers to take his son to but she won't allow days she will go and then doesn't, we have expressed concerns to school, hospitals and now social work that we can't make her take him and have now received a letter saying they have no option but to ask social work to facilitate his attendance to these appointments, I have recently ended up in a fight with her which resulted in me being charged for assault even tho she attacked me and smashed my window and she has now stopped all contact. She doesn't pay for court and receives legal aid so doesn't care but my partner has to pay it's putting a real financial strain on us as he already pays hundreds of pounds in maintenance.Can we apply for an emergency order to get the child? As she's putting him at risk with regards to hospital appointments being missed? He's a fantastic dad and there's no issues or problems with him or his son or any alcohol or drug use or anything like that nothing that would stop him having his son it's a straight forward case, this woman seems intent on ruining our lives and we feel helpless. She also never bothered to appear for the two hearings that wereHeard for the court order in the first place and lawyers have stood down from representing her as she is so erratic and unruly.

Our Response:
A court will not hand a child over to another parent unless absolutely necessary. Plus, if you have been charged with assault, this will not work in yours and your partner's favour with regards to access. Your partner's only option is to refer the matter back to court. If he cannot afford legal fees, he can represent himself in court, please see link here .
SeparatedDads - 15-May-18 @ 3:40 PM
Hi I'm wondering if anyone can help?My partner has been separated from his partner for 7 years, they have a 9 year old and contact is never frequent she stops and starts him from seeing him for no reason, since I came on the scene 3 years ago things have became worse stopping access for long periods of time, we had to pay for a court order to get him twice during the week for 3 hours and he stays over every Friday Saturday to Sunday night, she never complies and it's spreadic one week here 2 weeks off and sometimes no contact atall, I have my own children and she's uses every excuse he doesn't like them when in fact the kids get on pretty well, she says crazy things to her son which she repeats and also sends me abusive messages and has lashed out at my partner several times, she doesn't work and refuses to take the child to very important hospital appointments, appointments that my partner offers to take his son to but she won't allow days she will go and then doesn't, we have expressed concerns to school, hospitals and now social work that we can't make her take him and have now received a letter saying they have no option but to ask social work to facilitate his attendance to these appointments, I have recently ended up in a fight with her which resulted in me being charged for assault even tho she attacked me and smashed my window and she has now stopped all contact. She doesn't pay for court and receives legal aid so doesn't care but my partner has to pay it's putting a real financial strain on us as he already pays hundreds of pounds in maintenance. Can we apply for an emergency order to get the child? As she's putting him at risk with regards to hospital appointments being missed? He's a fantastic dad and there's no issues or problems with him or his son or any alcohol or drug use or anything like that nothing that would stop him having his son it's a straight forward case, this woman seems intent on ruining our lives and we feel helpless. She also never bothered to appear for the two hearings that were Heard for the court order in the first place and lawyers have stood down from representing her as she is so erratic and unruly.
Lee 87 - 9-May-18 @ 11:08 PM
I left the marital home 4 weeks ago at my wife's insistence (I have been charged with fraud). The house is mortgaged in joint names.All my possessions are still in the house and I have asked for access but been told that my wife has been advised by the police to call them if I go near. There was never any threat of violence or intimidation during our time together and I am trying to be amicable regarding gaining access with minimum stress or inconvenience to her or my children. What is my best course of action?
Brian45 - 4-May-18 @ 11:45 AM
Petal - Your Question:
Hi iv been married for 12 years have legal guardianship of husbands grandson for nine years he is now 11. My husband left abruptly and was not to return so we split two years ago and we sold house last sept I got £99000 for home for me n don he got £56 thousand n choose to rent he retired two years ago I now want to get divorced so I can move on he said I'm not getting any more money I work hard self emp raising jadyn he has £15000'mth from state and private pension and savings my worry is I'm (8 !58 mth p pension myth and state pension not till 66 years. Would it b worth while seeking legal aid if hei am due anything

Our Response:
Pensions can be included as assets in divorce financial settlements. You can see more regarding what you would be entitled to via the link here . You would not be able to seek Legal Aid, as Legal Aid is not available in divorce settlements. You can also see more regarding divorce settlements and entitlements via the link here.
SeparatedDads - 23-Apr-18 @ 10:26 AM
Hi iv been married for 12 years have legal guardianship of husbands grandson for nine years he is now 11 . My husband left abruptly and was not to return so we split two years ago and we sold house last sept I got £99000 for home for me n don he got £56 thousand n choose to rent he retired two years ago I now want to get divorced so I can move on he said I'm not getting any more money I work hard self emp raising jadyn he has £15000'mth from state and private pension and savings my worry is I'm (8!58 mth p pension myth and state pension not till 66 years . Would it b worth while seeking legal aid if hei am due anything
Petal - 22-Apr-18 @ 4:23 PM
Ang - Your Question:
I have been separated from my ex for eight years I don’t know were he lives or even if he is alive. how can I get a divorce

Our Response:
You can get a divorce or end your civil partnership if you don’t know where your partner is or they’re presumed dead, please see gov.uk link here.
SeparatedDads - 16-Apr-18 @ 1:39 PM
I have been separated from my ex for eight years I don’t know were he lives or even if he is alive... how can I get a divorce
Ang - 14-Apr-18 @ 7:59 PM
My husband and I have been separated since May 2014 in Scotland. He started divorce proceedings a year later but as soon as my solicitor started the Minute of Agreement (pension assets and property) he stopped discussions with his solicitor and they ended representing him due to lack of instruction from my husband. After a year of towing and froing from my solicitor he sought representation from another firm and have been advised again that his solicitor cannot get a response from him on how to proceed so again have stopped representing him as well. My issue is that I moved out of the matrimonial home with our two children after discussions that it would be put on the market. I am still paying half this mortgage and building and mortgage insurance and he still hasn’t put the house on the market and it has now been sitting empty for 18 months now.I don’t have a high paying salary and am putting myself into debt trying to keep up with my household bills on top of the additional mortgage payments and am the sole carerof both our children. My solicitor now wants to do a court order to force my husband into settling our assets. Is there another way of doing this as I cannot afford to pay court costs on top of everything else? Many thanks G
GeeGee - 28-Dec-17 @ 11:20 PM
Pablo - Your Question:
I have recently split from my wife of 3years.I sold my flat after we had moved into a new house which was bought out right by her.The house is in her name.The house was purchased as the matrimonial home.i have put a lot of money into renervations.etc.I,m now residing in rented accommodation.Am I entitled to half the house.Thanks.

Our Response:
It's not as simple as being entitled to 'half the house'. Much would depend upon the amount you spent on the property, whether you can prove the amount you spent, whether you have children together, how much your wife put into the house of her own money etc. The fact the marriage has been short (normally less than five years) it is unlikely that a 50/50 division of assets will be ordered particularly if one spouse brought significantly more assets to the marriage. You would need to seek legal advice in order to explore your options fully.
SeparatedDads - 10-Nov-17 @ 1:59 PM
I have recently split from my wife of 3years.I sold my flat after we had moved into a new house which was bought out right by her.The house is in her name.The house was purchased as the matrimonial home.i have put a lot of money into renervations.etc. I,m now residing in rented accommodation.Am I entitled to half the house.Thanks.
Pablo - 9-Nov-17 @ 8:25 PM
James29 - Your Question:
I have been separated from my ex wife for 7 years, I have tried on several occasions to take my ex wife to court for visitation rights for our two children. I have visitation up until she disagrees with something and then she stops it. I need to get into court to solve this as she has refused mediation and is unreasonable and the kids are getting effected by it now. When I go to lawyers the take money I don't have to send letters that I know are a waste of time. I can't get legal aid for these letters but would qualify for court action.

Our Response:
If you cannot afford legal fees you can self-litigate, please see link here .
SeparatedDads - 11-Sep-17 @ 4:23 PM
I have been separated from my ex wife for 7 years, I have tried on several occasions to take my ex wife to court for visitation rights for our two children. I have visitation up until she disagrees with something and then she stops it. I need to get into court to solve this as she has refused mediation and is unreasonable and the kids are getting effected by it now. When I go to lawyers the take money I don't have to send letters that I know are a waste of time. I can't get legal aid for these letters but would qualify for court action.
James29 - 9-Sep-17 @ 7:05 PM
Chriss - Your Question:
I have 3 kids 16 18 22, my youngest two are at college and my eldest has been in a flat away from his mother for 12 months.He has just advised me he wants to continue at university to do a masters degree. Can you advise when I stop paying maintenance for my children.

Our Response:
Please see link: At What Age Do Child Maintenance Payments Stop? here. As specified in the article; every parent has the basic responsibility to provide for their child up until the age of 16, when they are legally allowed to leave school and get a job. After this age, it depends what your child chooses to do. If they continue in full-time non-advanced education, not higher than A-level equivalent, for at least 12 hours a week, then your maintenance payments will continue until your child finishes the course or until they turn 20. With regards to your eldest, you can volunteer to help him through university or if you refuse your ex can take the matter to court and the court will decide upon whether it thinks your son needs financial assistance in order to complete his education.
SeparatedDads - 27-Apr-16 @ 1:44 PM
I have 3 kids 16 18 22, my youngest two are at college and my eldest has been in a flat away from his mother for 12 months. He has just advised me he wants to continue at university to do a masters degree. Can you advise when I stop paying maintenance for my children.
Chriss - 26-Apr-16 @ 5:50 PM
Have 16yr old still at school & spouse applied for simplified divorce Can I have child maintenance confirmed by court when decree being heard /granted to continue until finishes school
Bud - 6-Mar-16 @ 9:03 AM
LSF - Your Question:
I have an 8 year old son based in London with his mother, I am now living and working for HM Forces in Scotland with my partner. My sons mother is making it increasingly difficult to see him and I am the one having to travel between 300-600 miles each time, plus accommodation/travelling expenses to do this. She will not allow him to come to my home and is making up ridiculous reasons as to why he can't see me. We had an amicable agreement regarding child support and recently she has gone to the Child Maintenance Service therefore I am having to pay her 1/4 of my wage plus all of the travelling expenses involved in getting to London each month. The CSA have advised it's best to get a child contact order set in place to reduce the costs however I am a little confused as to whether I need to go through the Scottish or English court system. I have approached a lawyer in Glasgow and they advised for me to go through the legal system in England because my son is based in London and they would have to refer the case to a local court there and also it would appear as though I am using the Scottish legal system to my benefit? Can anyone verify this or offer any potential advice for me? My sons mother has threatened a child contact order wont work as the decision will be based on her and my sons wishes, before any more brainwashing on this beautiful little boy occurs I would love to get a set system in place and any advice from either other parents in the forces or in a similar circumstance.

Our Response:
I'm afraid we can't advise which legal system to use. However, you should be able to get 'special expenses variation' help with yoru travel, please see link here. Regarding access, if mediation is not an option, then I advise you take this to court, as the courts WILL listen to you as they do want fathers to have contact with their children. If the court rules in your favour, then it will mean your ex will be legally bound by the court order to let you see your child. Please see the most recent posting on our Separated Dads Facebook page which our dads who have been through this situation have given some great advice on. I hope this helps.
SeparatedDads - 28-Oct-15 @ 11:32 AM
I have an 8 year old son based in London with his mother, I am now living and working for HM Forces in Scotland with my partner. My sons mother is making it increasingly difficult to see him and I am the one having to travel between 300-600 miles each time, plus accommodation/travelling expenses to do this. She will not allow him to come to my home and is making up ridiculous reasons as to why he can't see me. We had an amicable agreement regarding child support and recently she has gone to the Child Maintenance Servicetherefore I am having to pay her 1/4 of my wage plus all of the travelling expenses involved in getting to London each month. The CSA have advised it's best to get a child contact order set in place to reduce the costs however I am a little confused as to whether I need to go through the Scottish or English court system. I have approached a lawyer in Glasgow and they advised for me to go through the legal system in England because my son is based in London and they would have to refer the case to a local court there and also it would appear as though I am using the Scottish legal system to my benefit? Can anyone verify this or offer any potential advice for me? My sons mother has threatened a child contact order wont work as the decision will be based on her and my sons wishes, before any more brainwashing on this beautiful little boy occurs I would love to get a set system in place and any advice from either other parents in the forces or in a similar circumstance.
LSF - 27-Oct-15 @ 1:43 AM
My daughters husband walked out & left her with the children ages 7months & 6years. If after 1 year separated if she wants a divorce do they have to have 50/50 visitation as they stay in different towns. My daughter is very worried about this especially as the older child is at school where we stay.
Cat - 12-Sep-15 @ 5:10 PM
Your wife does not have to give your child your surname, she is well within her rights to give your child her surname.
Maddy - 17-Aug-15 @ 10:14 AM
my wife and I split up during her pregnancy. She has since given birth to my son. She has kept me in the dark about everything concerning our child. I am now in court fighting for access. i have never met our son. He is now a year old. During court proceedings it has come to light that my wife has not given our child our surname. Is this legal? if so how do I get this changed? She has put my name on the birth certificate.
justme - 14-Aug-15 @ 2:13 AM
I am separated from my Wife, and she still and the children still live in Scotland. In Feb 2016, we will have been separated for one whole year. There will be still 2 of 4 children under 16. We both agree that divorce is the next course of action. Can we divorce in Feb 2016?
Paddy66 - 1-Jul-15 @ 8:43 AM
My wife has filed for divorce and I'm awaiting paper (news to me) we just recently formally seperated and divorce has been sprung on me (but I'm not complaining, just feel quite weird about it all) we have two young girls 4 and 7 and I see my 4 yr old every 3 weeks. However, as I'm unemployed I struggle to get the bus fare £8 asI'm also deeply in debt I have asked her to consider visitation in the town I live in, away from supervised contact, which is unesscessary, in my view. My ex wife is a hard one to negotiate with! Moving to my home town would mean a 15 min travel and there are parks and all sorts which she would enjoy over the summer. I want to get on with her and hate rocking the boat. I've had to cancel tomorrow's visit as I have no money and won't see her now till June. It's very hard. All advice would be welcome please
Rysoconnor - 1-May-15 @ 10:01 PM
@lambretta - You could always ask, if she does not consent then you would have to take it to court. The courts can give an order forcing your wife to sell up as part of a divorce settlement. However, if she is living there with your children then you will have to be able to show good reason why you need to sell. If all your money is tied up in the house for example, then you may be able to convince a court that you need to sell the house in order to live. If your children are still of school age and you need to pay child support then the courts will take their welfare into account when deciding on what to do with the home. Unfortunately, there is no definitive answer here, as it will be up to the court to decide. I hope this helps.
SeparatedDads - 21-Apr-15 @ 11:15 AM
Hi, I have separated from my wife for nearly 2yrs. She lives in Scotland with our 3 children in the marital home. I pay half the mortgage every month mainly to protect my share of the house. I do not pay maintenance as I cant afford it. Can you advise me if I can force my wife to sell the house? I would be happy for her to take the maintenance money owed from the sale of the house. I want to divorce her but want to sort the finances first. One of my children is under 16. Please advise asap.
lambretta - 18-Apr-15 @ 11:19 PM
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