Divorce and Separation: The Law in Scotland

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.