Same Sex Divorce

At the beginning of 2014, by a vote of 105 to 18, MSPs voted in favour of legalising same sex marriage in Scotland. The Marriage and Civil Partnership (Scotland) Act 2014 came into force in December that year and so Scotland become the 17th country in the world to legally recognise same sex marriage. The first same sex marriage ceremonies took place on 31st December 2014.

Now, same sex couples have a choice of three legally recognised relationships: cohabitation, civil partnership or marriage.

If a same sex marriage breaks down, the couple can move for a divorce. This is different from a civil partnership, where you would need to apply for a civil partnership dissolution.

Frequently asked questions

The following are some of our most frequently asked questions when it comes to same sex marriage and divorce.

How do I get a same sex divorce?

A divorce is the ending of the legal contract of marriage and you can only get a same sex divorce by applying to the court, usually the Sheriff Court, to grant a decree of divorce

If you and your spouse can agree on any 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?

A same sex divorce can be applied for under two different procedures, depending on your circumstances:

  • Simplified/ ‘DIY’ procedure – this is also 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 the grounds for divorce?

There are only two grounds you can use for same sex divorce. The most common ground is if you can establish that the marriage has broken down irretrievably.

There are three different ways you can show irretrievable breakdown of the marriage:

  1. You have been separated from your spouse for one year and your spouse is prepared to consent to the dissolution.
  2. You have been separated from your spouse for two years. You can then go ahead with a dissolution without your spouse’s consent.
  3. 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.

These grounds are largely the same as for heterosexual couples on divorce with the exception of adultery, which is not currently a ground for same sex divorce. This is due to its definition (adultery is defined in the common law as voluntary sexual intercourse between a spouse and a person of the opposite sex outwith the marriage). However, adultery would be a ground if a spouse in a same sex marriage was unfaithful with a member of the opposite sex. For a spouse in a same sex marriage who has discovered that their partner has been unfaithful with a member of the same sex, they could consider applying for divorce on the ground of their partner’s behaviour instead.

The second ground for divorce is where an interim gender recognition certificate has been granted. Previously, the Gender Recognition Act 2004 required a person undergoing gender recognition treatment to be divorced (or their civil partnership dissolved), before they would be given their full Gender Recognition Certificate. That was on the basis that same sex marriage was not legal. Now, couples can change gender without the need to seek a divorce or dissolution of their Civil Partnership.

What am I entitled to when I divorce?

Same sex spouses are entitled to the same financial provision as heterosexual spouses on divorce Find out more about the division of assets on separation.

How long does it take to get a divorce?

This will depend upon your circumstances and what childcare and financial arrangements need to be sorted out. However, if those have already been resolved, or if there are no such matters to sort out, then an uncontested divorce can be granted within six to eight weeks, assuming there are no other complications (such as locating your spouse or serving papers on them).

How can Thorntons help?

It is best to speak to a Family Lawyer for legal advice early on if you are considering applying for a divorce, especially if you have children or there are financial issues to be decided. Our Family Law Solicitors can provide you with advice and guidance on the divorce process and can advise you of the best route available, depending on your own situation.

At Thorntons Family Law, we can also provide alternative dispute resolution options to help separating couples come to agreement on separation matters and avoid expensive court actions.

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 your divorce will 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 may 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 online.

Frequently asked questions

We often receive questions separation agreements and how to put one in place. We have answered some commonly asked questions below

Read frequently asked questions

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