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: 9 Sep 2017 |
 
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.

You might also like...
Share Your Story, Join the Discussion or Seek Advice..
[Add a Comment]
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
My daughter who lives in England is divorcing her husband ,she wants to return home to Scotland taking her two children my grand children with her but her husband solicitor says she can't as going home to Scotland is the same as moving to an other country
Skin - 28-Feb-15 @ 2:12 PM
@Janine26 - first of all you need to get in touch with him to see if he will sign the passport papers. If he refuses you will need to apply for a specific issue order through the courts. I hope this helps.
SeparatedDads - 14-Jan-15 @ 2:50 PM
i need get a passport for my daughter but her dad wont sign for it as he dnt av no contact with her but his name is on my daughters birth certificate i need to get it takenof pls can someone message me me back thanks
janine26 - 14-Jan-15 @ 1:32 PM
Share Your Story, Join the Discussion or Seek Advice...
Title:
(never shown)
Firstname:
(never shown)
Surname:
(never shown)
Email:
(never shown)
Nickname:
(shown)
Comment:
Validate:
Enter word:
Latest Comments
Further Reading...
Our Most Popular...
Add to my Yahoo!
Add to Google
Stumble this
Add to Twitter
Add To Facebook
RSS feed
You should seek independent professional advice before acting upon any information on the SeparatedDads website. Please read our Disclaimer.