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Getting divorced

This advice applies to Scotland

This page explains the DIY divorce and ordinary divorce procedure in Scotland. 

Can you get divorced in Scotland

Generally, most people who were married in the UK and live in Scotland will be able to get a divorce in Scotland. You can only get a divorce in Scotland if you:

If you're not sure if you meet the rules because you got married abroad or one of you lives abroad, contact a solicitor

Which divorce procedure is right for you

There are two ways to get a divorce in Scotland:

  • DIY divorce  - also called the simplified procedure
  • the ordinary procedure - this is either defended or undefended.

If you don't have any children under 16

If you don't have any children under 16 and you agree about how to deal with your money and property you can use the DIY divorce procedure. You don't have to use a solicitor so you can keep the costs of the divorce low.

If you don't agree about how you'll deal with your money or property, you need to use the ordinary divorce procedure

If you have children under 16

Children under 16 include children of both of you, adopted children, step-children and any children who have been treated as part of the family. It doesn't include foster children.

You won't be able to use the DIY divorce procedure because the court will want to make sure there are arrangements for the care and support of the children.

You'll need to use the ordinary divorce procedure. You'll need a solicitor for the ordinary divorce procedure so it'll be more expensive than a DIY divorce.

For a marriage to be legal, it must meet certain conditions. For example, you and your partner must both be over 16 when you marry and you must not already be a civil partner or married to someone else. If your marriage doesn't meet one of these conditions, the court can end the marriage by granting an annulment (called a decree of nullity). For more information about conditions you must meet to marry, see Getting married.

When the court grants an annulment, it may say that your marriage is:

  • void - meaning, in effect, the marriage never existed, or
  • voidable -meaning the marriage was legal at the time it was registered but it isn't legal any longer.

Whether the court will say your marriage is void or voidable depends on the circumstances.

If you have children, the court will not grant an annulment unless it is satisfied about the arrangements for the children. For more about children, see Children at the end of a marriage.

You will need to get legal advice if you want to apply for an annulment. You might get financial help with your legal costs.

Apply for a DIY divorce

If you're eligible for a DIY divorce you still need to prove there's an irretrievable breakdown of your marriage or that one of you is applying for a gender recognition certificate.

You apply to the sheriff court for a DIY divorce using the appropriate form and pay the fee. The forms are available to download from the Scottish Courts website.

There is also some useful guidance on DIY divorce proceedings on the Scottish Courts and Tribunals Service website.

You may find it helpful to get legal advice before you apply. 

Apply for an Ordinary divorce

You'll need to prove there's an irretrievable breakdown of your marriage or that one of you is applying for a gender recognition certificate.

If you're applying for the divorce you're called the pursuer. Your ex-partner is the defender.

The defender has to decide whether they agree with what you're suggesting should happen about children, money and property. Legal fees can be very high if there are long disputes so it's best to try to come to an agreement about as much as possible before going to court. There are organisations to help you reach agreements out of court.

If you agree about the grounds for divorce and what to do about your children, money and property the case is known as undefended.

If you don't agree about the grounds for divorce or what to do about children, money and property the case is known as defended.

Undefended divorce procedure

If you both agree to the divorce, the court will look at the paperwork that's been submitted by the pursuer's solicitor. It's likely to include a summons (or initial writ) and the sworn statements (affidavits) made by the pursuer and any witnesses.

If you have children, the court will need to be satisfied that you've made satisfactory arrangements for them. The court may want to discuss the arrangements and possibly meet the children if they are old enough.

A divorce which you both agree to can take up to six months if there are no children or money issues involved. It can take longer if children are involved and the court isn't satisfied with the arrangements being made for them. For more information about arrangements for the children, see Children at the end of a marriage.

When the court agrees to grant the divorce it issues a divorce certificate called an extract decree of divorce.

Defended divorce procedure

If you start divorce proceedings and your partner doesn't agree about the grounds for divorce or arrangements for children or property they will have to send a Notice of Intention to Defend to the court when they first receive the initial writ from the court.

When the divorce is based on irretrievable breakdown, the defender has to say why they don't agree that the marriage has broken down. There is likely to be a court hearing for a judge to decide whether the marriage has broken down irretrievably.

Even if the court agrees that the marriage has broken down, it has to be satisfied that you've made satisfactory arrangements for any children. They may want to discuss arrangements about the children and possibly meet them if they are old enough. For more information about arrangements for the children, see Children at the end of a marriage.

If the court agrees to grant the divorce, it'll issue a divorce certificate called an extract decree of divorce.

What irretrievable breakdown of the marriage means

There are two grounds for divorce:

The irretrievable breakdown of the marriage can be proved if:

  • there is unreasonable behaviour
  • there is adultery
  • you both agree to the divorce and you've lived separate lives for at least one year
  • one of you doesn't agree to the divorce and you've lived separate lives for at least two years.

Unreasonable behaviour

A court may grant a divorce if you or your partner has behaved so badly that the other can no longer bear living together. Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things like dominating a partner, not letting the partner leave the home or speak to neighbours and friends. 

If one of you doesn't agree to the divorce, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence.

If your partner has been abusive towards you or your children, you should get specialist help.

Adultery

A court may grant a divorce if one of you has had a sexual relationship with someone else of the opposite sex. If you or your partner has had a sexual relationship with someone else of the same sex it's not technically adultery but is likely to be seen as evidence of irretrievable breakdown.

The court will need details of the adultery, for example, dates and places when it happened. The court will only grant the divorce if it's satisfied that the marriage has irretrievably broken down and the other partner could no longer live with the partner who has committed adultery. There is no minimum period that you have to be married before a divorce action based on adultery may be started.

If you both agree to the divorce, the court will usually only need statements and details of the adulterous sexual relationship. If one of you doesn't agree to the divorce, proof will be necessary and this may be difficult and expensive to get.

Living separate lives for one year and you both agree to the divorce

If you have lived apart (been separated) for one year and you both agree to a divorce, a court will accept this as proof of irretrievable breakdown of the marriage. The one year of living apart will still be considered as continuous even if you've actually got back together for up to six months within that time. The six month period of being back together can't be used to count towards the one year of living apart. For example if a couple separates in January, gets back together in April but splits again in September the first three months of separation still count towards the year apart.

Separation may be used as a ground for divorce even when you and your spouse live in the same home but only if you're no longer living as a married couple and effectively lead separate lives.

Living separate lives for two years when one of you doesn't agree to the divorce

If you have lived apart (been separated) for two years continuously, you can apply for a divorce without your partner's agreement. A court will usually agree to a divorce if you've been separated for two years.

Separation may be used as a ground for divorce even when you and your spouse have lived in the same home but only if you are no longer living as a married couple and effectively lead separate lives.

If you're applying for an interim gender recognition certificate

A transgender person who has an interim gender recognition certificate can end their marriage on this ground. They must apply to a Gender Recognition Panel. There is more information about applying for a gender recognition certificate on the GOV.UK website.

You may be able to get help with legal costs depending on you and your partner's income, capital and how reasonable the Scottish Legal Aid Board thinks it is to give you help.

If you do get help, in some cases you might have to pay some of the legal costs back, out of money or property you are given when the divorce comes through. This is called clawback. Make sure your solicitor explains clawback to you before you start the case.

Who will look after and support children

The court will want details of the children of both of you, adopted children, step-children and any children who have been treated as part of the family. It doesn't include foster children.

Children under 16

You'll need to say where children under 16 will live and who they'll live with, as well as the financial arrangements for their support. The court's main concern will be to decide what's in the best interests of the children. 

Children over 16

You might also need to address how you'll financially support older children. The duty to provide for a child usually lasts until a child is 18 or 19 if they're in full-time non-advanced education or up to 25 if they're in full time further education. 

You can make agreements about the children between you. If the court thinks the arrangements you've made are in the children's best interests it won't change them. 

If you can't agree, the court can make decisions to sort out a disagreement. Decisions made by the court are called orders.

If you want help to agree childcare and contact

The Scottish Government's 'Your Parenting Plan' is a guide to making practical arrangements for your children if you live apart.

You could get help from a mediator or collaborative law practitioner to make arrangements about the children.

Court orders if you can't agree childcare and contact

A court will only make an order concerning children if it feels it's in the best interests of the children. A court can make orders about:

  • who the child should live with - called a residence order or "custody"
  • who the child should have contact with  - called a contact order, including what sort of contact it should be and whether it should be supervised
  • preventing something happening
  • specific issues to do with the child's care.

Residence orders

The court can make a residence order in favour of:

  • one parent - this means that the child must live with that parent
  • both parents - one residence order can be made for both parents, even if they are not living together. This is like joint custody. The order will say how much time the child will live with each parent
  • a third person - for example, a grandparent.

Contact orders

The court will normally expect you and your partner to make your own arrangements about maintaining contact with your children. The court will only consider making a court order if you can't agree or there are concerns about a parent having contact with a child (for example, because the parents are divorcing as a result of domestic abuse).

The contact order may include conditions. It may also say what sort of contact you can have, for example, visiting, telephoning or writing letters. Orders can also be made to allow contact between a child and other relatives or friends.

Preventing something from happening

A court can make an order called an interdict to prevent one parent from doing something that the court thinks is not in the child’s best interests. 

Specific issues like education

A court can make an order about a specific issue that a child's parents cannot agree about, for example, religious education.

What happens to household goods and other possessions

Gifts and inherited goods belong to the person who received them. 

Goods acquired before the marriage belong to the person who acquired them. 

You'll need to agree who owns goods you bought during the marriage. If you can't agree, the court assumes you own them jointly.

It may be useful to ask a mediator or collaborative law practitioner for help to decide who owns what before you go to court.

Financial support at the end of a marriage

Until you are divorced you and your spouse have a legal obligation to provide financial support for each other. 

You may need help to agree financial arrangements, see  Family mediation or collaboration.

Financial support for spouses

Agreeing financial support for each spouse

If you both agree to financial support, this is called a voluntary agreement. It can be written down or it could be a verbal agreement.

You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills or pay for the children's clothing and holidays.

Before you agree on a package of financial support, you should get legal advice about whether it is an appropriate arrangement. It may be useful to have an agreement written up by a solicitor in case of future dispute. You might get help with the costs of making a voluntary agreement.

Court orders for money from a former spouse

You can apply for a court order for financial support at the end of a marriage. The court will consider all financial circumstances of both partners, including pension arrangements.

A court can make an order for regular payments to be made or for a one-off lump sum. It can also make an order about pension arrangements.

You might get help with legal costs when you apply to court for financial support. However, you might have to pay some of the legal costs back, out of money or property you are given by the court order. This is called clawback. Make sure your solicitor explains clawback properly to you before you start court action. Where pension arrangements are involved, you should also consider getting specialist financial advice.

Financial support for children

Agreeing financial support for children

If you both agree to financial support, this is called a voluntary agreement or family-based arrangement. It can be written down or it could be a verbal agreement.

You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills, or pay for the children's clothing and holidays.

If you need advice on the options available for arranging child maintenance and for advice on how to set up a voluntary child maintenance agreement, there is more information on the Child Maintenance Options Service website.

The Child Maintenance Options Service can help you:-

  • understand the options for making a child maintenance agreement
  • check that any existing arrangement is right for you and your child
  • estimate how much child maintenance you would pay or get
  • refer you to other organisations for help and advice.

Before you agree on a package of financial support, it may be useful to get legal advice about whether it is an appropriate arrangement. It may be useful to have an agreement written up by a solicitor in case of future dispute. You might get help with the costs of making a voluntary agreement.

For more information about family-based arrangements, see How to make a family-based child maintenance arrangement.

Child Maintenance Service (CMS)

If your marriage has ended and the children are living with you, you can use the Child Maintenance Service (CMS) to get financial support for your children. However you don't have to use the CMS if you don't want to.

Housing rights at the end of a marriage

At the end of your marriage, the court can give you or your partner rights to the home or can take rights to occupy the home away from either of you. As long as you're both still living in the home, whether it is owned or rented, you both have rights to live in it.

If one partner has been violent there are special orders the court can make to change the violent partner's rights to the home and exclude her/him. For more information about help you can get if your partner has been violent to you, see Domestic abuse.

If one of you is a sole owner or a sole tenant and the other partner leaves the home, they may have to go to court to enforce their rights to get back in.

If you and your partner are owner-occupiers the value of the family home is likely to be an issue within the divorce settlement. You should see an experienced adviser about decisions that can be made about the family home.

If you're thinking of going to court about your housing rights after the breakdown of your marriage, you should consult an experienced adviser, for example, a family law solicitor or a Citizens Advice Bureau. Find out more about the advice options we offer

Paying the mortgage when a marriage breaks down

If a mortgage is in joint names, both people are jointly and solely liable for the mortgage payments. This is known as joint and several liability.

This means that if one of you leaves and stops contributing to the mortgage payments, the mortgage lender can ask the other person to pay the full amount.

If a mortgage is in one person's name, only that person is liable for the mortgage payments.

However, if your name is not on the mortgage and you want to stay in your home, you will need to keep up the mortgage payments. If your ex-partner is no longer making any payments, you will need to pay the full amount, otherwise the mortgage lender can start action to repossess your home. Get in touch with the lender and negotiate what payments might be accepted to stay in the home. You have the right to do this because you are married.

You should consult an experienced money adviser, for example, at a Citizens Advice Bureau. Find out more about the advice options we offer

Paying the rent when a marriage breaks down

If you're both on the lease

A joint tenancy means that all of the tenants named on the tenancy agreement are jointly and solely liable for the rent. This is known as joint and several liability.

This means that if the other joint tenant leaves and stops making payments towards the rent, the landlord can ask you to pay the full amount. That's why it's important to keep paying the full amount, otherwise you may be evicted.

In some cases, a joint tenant can end the joint tenancy by giving notice to the landlord. If you want to stay in the property you'll need to make sure this doesn't happen or if it has happened, you can negotiate with the landlord. Your landlord may be able to give you a new tenancy in your name only. If you're in this situation you should get advice from an experienced adviser, for example, at a Citizens Advice Bureau. Find out more about the advice options we offer

If only your partner is on the lease

If a tenancy is in the name of your married partner, they'll be liable to pay the rent for as long as the tenancy continues. If the rent isn't paid and arrears build up, the landlord may take action to evict you.

If your ex-partner is no longer paying any rent, you should negotiate with the landlord to pay the rent because you have the right to do so. If the landlord won't accept the rent you should get advice straightaway. If there are arrears you should also get advice about how to pay these off if you want to stay in the home.

If you're in this situation you should get advice from an experienced adviser, for example, at a Citizens Advice Bureau. Find out more about the advice options we offer

Benefits and housing costs

If you stay in your home after your partner has left, depending on your income, you may be able to get Housing Benefit to help pay the rent. If there's a mortgage, you might get Help with mortgage costs if you're not working

Family mediation or collaboration

Family mediation and collaborative practice are two ways of helping couples who are separating or divorcing to sort out disagreements and reach decisions about things like money, property and looking after the children, without having to go to court.

To use either of these options, you both have to be willing to go along voluntarily. Any decisions you make there won't be legally binding but may help you to start drawing up an agreement. Mediation involves you working together with your partner and a trained, impartial mediator, to reach agreement. Collaborative practice involves you and your partner meeting together with your solicitors, to discuss the issues and try to reach agreement.

A couple can use family mediation or collaborative practice as soon as possible after they have decided their relationship is ending and they feel able to discuss any disputes. Mediation and collaborative practice can be helpful before legal proceedings begin, to encourage co-operation between the couple and to prevent disputes from getting worse and agreement becoming harder to reach in the future. They can also be used after a separation or divorce if new issues arise or there are outstanding issues to be resolved. There may be an additional need for children to be able to say how they feel. 

There is more information about mediation and a national map of local services on the Relationships Scotland website.

Some local solicitors may be skilled in family mediation. You can check what is available in your area by contacting The Law Society of Scotland.

The Law Society of Scotland
Atria One
144 Morrison Street
Edinburgh
EH3 8EX

Tel: 0131 226 7411
Fax: 0131 225 2934
Email: lawscot@lawscot.org.uk
Website: www.lawscot.org.uk

There is more information about collaborative family law practice on the Consensus Collaboration Scotland website

The Spark

The Spark provides relationship counselling services for families, couples, individuals and young people and has regional centres across Scotland where clients can access face-to- face counselling. Telephone and online counselling is also available. There is a charge for counselling but what you have to pay can be negotiated. The Spark has a relationship helpline offering immediate relationship support. Calls are free from landlines and mobile networks. If you prefer to type rather than talk you can use the webchat instant messaging support service which you can access from the top of the homepage of the website. 

The Spark
General enquiries: 0808 802 0050
Relationship Helpline: 0808 802 2088 (Mon, Wed and Thurs 11am-2pm).
Appointments: 0808 802 0050
Email: Contact form available on the website
Website: www.thespark.org.uk

Downloads

There's a summary of this information about ending a marriage in our fact sheet, Getting divorced in Scotland [ 210 kb].

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