Family Law

Divorce/Separation

Sometimes people come to see us about separating from their spouse / partner and just want to sort out the things arising from that separation. Sometimes people come to see us because they have decided that they want to become divorced. What they are concerned about is usually the same – their children, their home and their finances

In Scotland, before divorce can be granted, two things are required:

1. Appropriate arrangements for any children under 16 must be made; and

2. Property and debts require to be fairly divided.

If the couple can agree these things, then usually that agreement will be recorded in a formal written agreement, known as a separation agreement or a minute of agreement. Sometimes just getting to this stage is enough to be going on with. [LINK TO AGREEMENTS]

Sometimes agreement is reached by negotiation with the other party directly or through solicitors. Sometimes agreement is reached by using mediation or collaborative law.

If the couple cannot agree these things, then the court will decide what arrangements are appropriate for the children and what is fair division of property and debts.

Usually divorce is the most straightforward part of a separation. It is disputes about children, property or finance which tend to prolong or complicate matters.

The law in Scotland for ending a marriage in divorce is the same as the law for dissolution of a civil partnership. We use the shorthand “divorce” here also for dissolution of a civil partnership. The law also provides for divorce or dissolution between a couple where one is transgender and has undergone a gender change recognised by the law.

In Scotland, divorce can only be granted if either:

1. the marriage has broken down irretrievably; or

2. there has been a recognised gender change of either party.

There are four ways of demonstrating that a marriage has broken down irretrievably:

(a) adultery (this is not a ground for a couple in a civil partnership)

(b) unreasonable behaviour

(c) separation for one year if both parties consent to divorce

(d) separation for two years if the other party does not consent.

Getting divorced changes your legal status and must be done by an application to court. There are legal rules about which court can accept your application. You will need your marriage certificate and birth certificates for each child of the marriage under 16.

We will need to identify the date of separation, that is the date on which you stopped living together as spouses or partners (even if you continued living together under the same roof after that). This date is an important one for various legal reasons.

If you have no children under 16 and if neither party has any financial or property issues then you can get divorced using a simplified procedure which is much quicker and cheaper.