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Divorce and Separation: The Law in Scotland

By: Elizabeth Mugan BA/BSc, PGDipLaw, BVC, CIArb - Updated: 3 Nov 2019 |
 
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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@col.so it’s all up to my (daughter )now if she ever wants to meet me and to get to no her real dad .i guess time will tell if we ever get no each other .the ball is in my daughter court now .
C.laurie - 3-Nov-19 @ 12:55 AM
@col.(i don’t ever want contact with the child’s mother or any off her partners not even phone calls )i only want to deal with the child (directly )and if she doesn’t want any contact with me or reach out to me Though social media .i understand and wish her well in life .
C.laurie - 2-Nov-19 @ 11:29 PM
@col.i think with my situation I am in and the previous (trouble and drama) I was in .I made the right decision.there is a (window) for my daughter if she ever wants to get in contact and meet her (old men )I am on (social media) so it’s pretty (easy )for her and I think the best option because I don’t want any (contact) with her mother .and only want to deal with my daughter and at her age now it is possible.so I will just wait for my daughter .
C.laurie - 2-Nov-19 @ 9:13 PM
@col.for what it’s worth my door is always( open) for my daughter butit’s up to her now if wants to (see me ).i am on (social media now )so she can (reach out) to me if she wants it’s not like old days anymore with the technology around these days she can get hold off me if she is wants plus she is a teenager now and us her own mind .i found peace with it .
C.laurie - 2-Nov-19 @ 8:50 PM
@col.i was never (married) I do have a child and when I was with the child’s mother she was seeing (heaps) off other guys .i got myself in a lot off( trouble) back then and (again )a few years ago had to face (court ).i have (officially giving up on trying to see my daughter )for my health I went though (depression anxiety court) it was to much for me I am to old for this stress .so I am officially giving up her mother is to controlling (manipulative )cruel and a mean person and not someone I wantto be associated with or have any drama with .i think it’s best she go with one off her othermany guys .
C.laurie - 2-Nov-19 @ 8:37 PM
I have been married for 15 years and a father for 12 in Scotland. My wife broke up our family by starting an affair with a married man and moved out of the family home with our 2 children 3 years ago. I have been surprised to find out that as the primary care giver for the kids, my wife has strong legal incentives for her actions. Having always been a hands on dad I have adjusted my work to allow a shared arrangement. As she doesn’t want me to have them during the school week, despite living within walkable distance, she can keep them. The outcomes of child welfare hearings are dependent on the sheriff on the day. In my circumstance I had a fairly progressive sheriff who was clearly in favour of both parents having access in the week and granted some positive movement. The second time I had a notoriously old fashioned sheriff, known for giving fathers every second weekend only. Mothers like my wife want to have the kids to attract child maintenance, alimony and enough cash from a settlement (there is a case for fair share to mean greater than 50%) to buy a house outright so she doesn’t need to work. I lose my wife, my kids, my house. I have to pay for the privilege despite keeping my marriage vows throughout and playingno part in the separation. My kids lose the active involvement of a parent albeit retain a dad for some weekends and occasional holidays. My wife and her new partner have the power to manipulate the kids. She has a lot of power to exercise a steady stream of malevolence, using the children as pawnswhich she does legally with the backing of the law. As primary care givers are most often mothers, this is a clear case of gender discrimination. I realise Scotland is thought of as being ahead of England regarding no fault divorces, making acrimony-light separations more likely, which is certainly better for all involved, especially children. Unfortunately it runs contrary to marriage vows and leaves a potential innocent spouse who is also the larger earner in an extremely vulnerable position.The chief earner is often (certainly not always) the male so this is also gender discrimination. My suggestion is that the law is less loose regarding child welfare in acrimonious divorces. There should be a starting point of assumed equal custody should either parent wish it, assuming homes are within easy travel distance and neither parent is deemed incompetent or a danger. A weight on the views of the child incentivises one or both parent to attempt manipulation which (and I have certainly witnessed in my situation) causes childhood distress and anxiety. I therefore suggest that giving children this right, perhaps counterintuitively, is often too much for them, and courts should avoid involving them as much as possible.
Col - 2-Nov-19 @ 1:06 PM
hey, me and my ex is seperate nearly 14th months. we are both living in scotland. tried to contact him for divorce but she is not interested. my question is if i buy new property or business can she claim. Am not using my own money. my family & friends want to support me. whats the best way i can secure myself to buy property or business?
dani - 24-Aug-19 @ 9:12 PM
Hi , I’m separated from my wife , have a great relationship with my kids but recently they’ve become upset and feel awkward about their mum and her friend bad mouthing me in front of thembeing inappropriate with homophobic comments towards my son and generally enjoying dad bashing . Her friend is also separated from her husband and encouraging my kids to dislike fathers . Legally can I stop this ? Thanks
Timba - 5-Aug-19 @ 7:09 PM
So sorry, I’ve just realised that’s this is a dads forum not a general one as I thought! Apologies. But for what it’s worth I think any women that prevents a father seeing their children are scum (unless of course abuse of any kind has been involved). A women has no more rights over a child than their father and kids need both parents. Sorry again for posting on here!
Eltel - 23-Jul-19 @ 11:03 PM
Hi, I wondered if anyone could help with some questions. Me and my husband were married in New York - does that make a difference in terms of divorce? Secondly, I remortgaged my own property to pay for an extension to my husband’s property (which I’ve since found out is actually in the name of his brother and wife). It was a substantial amount of money (not far off £100k!) - is there any way I can get that back because the value of his property will be far more than it was before I paid for a huge extension! Thanks in advance to anyone that give me some advice.
Eltel - 23-Jul-19 @ 10:58 PM
I'm going through a divorce and renting just now. I have a child under age of 25 and in FTE. She works part time and circa £500 per month and is living in the marital home.Also gets a saas loan for uni. I have an informal agreement to pay her x amount per month. However, I understand that if her earnings outweigh her spending needs, then no financial support is needed. Am i liable for food, energy bills or should this be paid partly by my daughter in the form of " dig money" to my ex?
Dave - 23-Feb-19 @ 2:23 PM
@sandmac.i have finally reached the point now where it is what is now hey I am happy I come to terms with who I am .i not beating myself up over anything now just going to keep do me I expressed and proceededmy myself mentally now I am done with this (stuff about rights) .truth is I couldn’t care less about her daughter or think off anything worse then looking after a teenager gods truth .if they want to call me Timmy we’ll go right ahead .
Ben - 4-Feb-19 @ 1:45 AM
@sandmac.you what the best thing is she knows I am a poor men with autistic traits that lives in a pub room and she does have a conscience a moral compass and said she doesn’t want child support because I am sorry to break this to you but I have been in a relationship with uncle for two years write under your nose and there was another as well the roofer named Jacob .so said (sweet )thanks for the pass you are not so evil after all .may your children grow well have a good life .
Ben - 3-Feb-19 @ 10:57 PM
My son wife is filing for divorce, they've been apart for over two years after her infidelity. She is saying he can't see his children at all because they are happier away from him, he has no cash for a lawyer, can he try for mediation or access. Any information would be appreciated thanks
Sandymac - 3-Feb-19 @ 9:10 PM
I got married 14 years ago I have 3 boys under 16 one lives with me 2 older live with him I have had divorce papers drawn up twice we have been separated 8 years I can't afford to keep betting papers drawn up for him to not sign he loves to have power over me especially when it comes to the kids access he believes I shouldn't be working so I am available to take kids when he wants them at Xmas's and new years I have to fight for months to get my access as he knows it's the only way he can hurt me now I barely see my oldest now as he is 14 and his dad tells him he doesn't need me I just want to get an affordable divorce and see my children without having to fight and fight for access I now feel like I have no more fight in me I just want to end all of there is no money estates or anything I have a partner that I have been with for 5 years he has one that's been their for 5 years I have a daughter to my partner and he also has a partner to his but he just won't divorce me it's the only hold he has over me can someone help me or point me in the right direction please
Tasha - 30-Dec-18 @ 3:27 PM
I got married 14 years ago I have 3 boys under 16 one lives with me 2 older live with him I have had divorce papers drawn up twice we have been separated 8 years I can't afford to keep betting papers drawn up for him to not sign he loves to have power over me especially when it comes to the kids access he believes I shouldn't be working so I am available to take kids when he wants them at Xmas's and new years I have to fight for months to get my access as he knows it's the only way he can hurt me now I barely see my oldest now as he is 14 and his dad tells him he doesn't need me I just want to get an affordable divorce and see my children without having to fight and fight for access I now feel like I have no more fight in me I just want to end all of there is no money estates or anything I have a partner that I have been with for 5 years he has one that's been their for 5 years I have a daughter to my partner and he also has a partner to his but he just won't divorce me it's the only hold he has over me can someone help me or point me in the right direction please
Tasha - 30-Dec-18 @ 3:27 PM
I have been separated just over a year from my wife. We have a 9 yr old son and have a note of agreement in place which we both agreed to. What is the procedure now for applying for a divorce? What is normally the time scale? And the cost? Thank you
Stefan - 15-Nov-18 @ 3:54 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
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
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