Divorce and Separation in Scotland

Divorce and Separation in Scotland

The breakdown of a marriage is a difficult time for all concerned, particularly in the early stages. There can be all sorts of questions about the separation and divorce process, uncertainties about care arrangements for children and financial matters, and difficulty coming to agreement on key issues for many separating couples.   

Frequently asked questions

The following are some of our most frequently asked questions when it comes to Family Law and divorce and separation.

How do I get a divorce?

A divorce is the ending of the legal contract of marriage and you can only get a divorce by applying to the court, usually the Sheriff Court, to grant a decree of divorce. A civil partnership is legally ended by dissolution rather than divorce.

If you and your spouse can agree on all issues arising from the separation before applying for divorce, the application for divorce is then undefended. This means that neither party has to go to court to give evidence for the divorce, and makes the whole process much more straightforward. You will usually need a Solicitor to draft and submit the application for you.  

If, however, you cannot agree, you may have to raise a court action for the court to resolve the issues as part of the divorce proceedings. This can be a costly process with Solicitor representation on both sides.

What is the divorce application procedure?

There are two ways to apply for a divorce:

  • Simplified procedure – this is also sometimes referred to as a ‘quickie divorce’ or ‘DIY divorce’, and may apply to you if there are no financial matters to resolve, or these have already been decided and drawn up in a formal Separation Agreement, and there are no children under 16 of the marriage
  • Ordinary procedure – in all other cases

In order to apply for a divorce, you first need to establish grounds for divorce

What are grounds for divorce?

There are only two grounds you can use for divorce. The most common is if you can establish that the marriage has broken down irretrievably. There are four different ways you can show this irretrievable breakdown:

  1. You have been separated from your spouse for one year and your spouse is prepared to consent.
  2. You have been separated from your spouse for two years. You can then go ahead with a divorce without your spouse’s consent.
  3. You are able to prove your spouse has committed adultery. You can then apply for a divorce immediately. However, if you have known that your spouse has committed adultery and you continue to live with them for more than three months then you are deemed to have condoned that adultery and cannot then proceed with a divorce on that ground.
  4. You can establish that your spouse’s behaviour is such that you cannot reasonably be expected to continue to live with them – this is often referred to as ‘unreasonable behaviour’. You can then apply for a divorce immediately. You would have to provide evidence from someone else to confirm the position. Unreasonable behaviour does not necessarily mean just physical abuse. It can also cover issues such as alcohol or drug abuse or gambling, as well as emotional abuse.

The other ground for applying for divorce is where an interim gender recognition certificate has been issued to one of the parties.

Our team can advise you whether you have grounds to apply for a divorce.

There is a ‘no fault’ principle in Scotland, which means that no matter what the ground for divorce is, neither party will be penalised financially for their behaviour.

Before you apply for a divorce, you may first wish to consider reaching an agreement over the care arrangements for your children and also how any finances will be split.

How long does it take to get a divorce?

This will vary depending on the circumstances of your case. However, if matters are straightforward and you are not asking the court to rule on financial matters or care arrangements for any children, then usually a divorce can be granted within six to eight weeks, assuming you meet one of the grounds for divorce.

What is a ‘quickie divorce’?

In Scotland, this normally refers to the Simplified or ‘DIY’ Divorce. This can be used if there are no outstanding financial matters to sort out (or if these have previously been agreed and reflected in a Separation Agreement) and there are no children of the marriage under the age of 16 years.

Under a Simplified Divorce, you can complete the divorce application form yourself, although a Solicitor has to notarise the application form before it can be lodged with the court. From start to finish the process takes approximately eight weeks to complete. Find out more in our Simplified Divorce section.

We both want to divorce and have already separated. What do we do next?

If you have agreed all financial matters and care arrangements for any children, and had the terms legally drawn up in a Separation Agreement, then you can apply for a divorce if you meet one of the grounds for divorce listed above.

If not, then the first step is to have a Separation Agreement (also referred to as a Minute of Agreement) prepared by a Solicitor. This is a legally binding document formally recording how the matrimonial assets and debts are to be divided and it can also set out where the children will live and the amount of child maintenance/support to be paid.

Alternatively, if you and your spouse are unable to agree on matters then one of you may have to consider raising a divorce action and as part of that, you can both ask the court to determine how the finances will be split and the care arrangements for the children.

My spouse does not want a divorce but I do. What do I do?

You should seek legal advice about applying for a divorce, as a Solicitor will be able to discuss the different options available to you. Depending on which ground you apply under, it may not matter that your spouse does not consent as in some circumstances you may be able to apply for a divorce without consent. Alternatively your solicitor may be able to help you negotiate the terms of a separation agreement with your ex-spouse and a divorce can be applied for later.

What am I entitled to when I divorce?

In Scotland, the law states that each person is entitle to a ‘fair’ share of the matrimonial property – the assets accumulated during the marriage. In most cases, that will be a 50:50 share. However, there can be situations where a 50:50 share would not produce a fair split, in which case a person can ask for more than a 50 per cent share. You can find more on this in our Financial Divorce Settlements section.

What happens to the children in a divorce?

There is no hard and fast rule. If parents are unable to agree on the care arrangements for the children, then the court can be asked to determine where the children should live. The legal test is what would be in the best interests of the children, so the court has a very wide discretion in deciding that. It is generally better if parents can come to an agreement about this and mediation can be an effective way to do that, rather than facing the uncertainty of a court order. You can find more on care arrangements in our Child Issues section.

Can we divorce if we still live in the same house?

Yes. Many people simply cannot afford to run two households when they first split up, so it is not unusual for them to start their formal separation negotiations while still living together. A lot of people think that to be legally separated, you must physically live apart but that is not the case. The important date is the date that the couple stop living together as husband and wife.

What is the date of separation?

Contrary to popular belief, it does not have to be the date a couple stop living together and one leaves the family home, although often that will be that date. Legally, it is the date the couple stop living together as husband and wife. Often a couple may continue to live together under the one roof, although they have separated. The date of separation is a matter of fact and if there is to be dispute about it then evidence will need to be produced to establish what date it was.

What if I do not know where my spouse is?

Tracing agents can be used to attempt to locate your spouse. If that fails, then there are traditional methods of serving court papers that can be used, including taking out an advert in the local newspaper and displaying a public notice in the local court.

If I was married abroad, can I get divorced in Scotland?

Possibly. However, that alone is not enough to establish jurisdiction in the Scottish Court. This is a complicated legal issue, so you should get legal advice about your specific circumstances.

How can Thorntons help?

If you are thinking about applying for a divorce, our expert team of Family Lawyers can provide you with legal advice and guidance on all your divorce and separation options, and how best to proceed for your circumstances. We can help you raise a court action if that is right for your case and support you through the process. Our alternative dispute resolution services can also help separating couples come to an amicable agreement on matters arising from their separation and avoid costly court actions.

At Thorntons Family Law, we offer an initial free no-obligation chat over the phone to outline your options and the possible costs. 

Depending on your case and circumstances, the next step is to come into one of our local offices to meet a Family Law Solicitor about your case and the way forward. 

Call us on 03330 430 150 for a chat or contact us to book an appointment.

If you are unsure about your situation, and want to know where you stand before deciding what to do, we offer an Advice Package with a fixed price of £250 inclusive of VAT so you can talk to one of our Solicitors in more depth about your options.  After the meeting, you may decide not to take things any further.  If you do decide to move forward the £250 fee is offset from your overall bill.

How much will it cost?

The costs of a divorce can vary, depending on the circumstances of your case.  We are always clear to clients about the potential costs of any option and offer a range of payment options.  In some cases we can offer clients a fixed price package.  For example, where there are no financial claims and no children under 16 years of age and matters are agreed, you may be eligible for a Simplified Divorce, in which case we offer a fixed fee of £300 inclusive of VAT and excluding outlays. 

If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs or payments to independent experts.

We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses. Please note we do not offer Legal Aid for this service.

Alternative funding

The costs for divorce can be significant, especially if negotiation becomes drawn out or the matter ends up in court. If you are concerned about covering such costs, we can put you in touch with a specialist company who provide funding for clients to assist with the costs of family law cases. You will then pay them back when you receive a financial award under the divorce. To discuss eligibility call us on 03330 430 150 or contact us

Frequently asked questions

We receive many questions about separation and divorce; the process and what steps people should take. We have answered some commonly asked questions below

Read Frequently Asked Questions

10 Divorce Myths

Download a Fact Sheet

Division of Matrimonial Property

Download a Fact Sheet

Grounds for Divorce

Download a Fact Sheet

Make an Enquiry

Useful Services

Our other clients have found the following information helped support them while going through their divorce or separation.

Civil Partnership Dissolution

Same Sex Divorce

Separation Agreement

Spousal Maintenance

Conflict Resolution

Financial Divorce Settlements

Simplified Divorce

Our Local Offices

We have offices across Scotland, offering legal advice and property services

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+44(0)1382 229111


+44(0)1333 314395


+44(0)1241 872683


+44(0)1334 652285


+44(0)131 225 8705


+44(0)1307 466886


+44(0)1592 268608


+44(0)1674 673444


+44(0)1738 621212

St Andrews

+44(0)1334 477107

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