This guide is an introduction to Divorce Law in Scotland.
It covers: Residency Criteria; Reasons for Divorce; Finances and Asset Divison; Aliment.
Divorce guide (Scotland)
There are TWO divorce procedures under Scottish Law; the Simplified procedure and the Ordinary Procedure. If you are unable to meet the requirements for the Simplified procedure, then you must undertake the Ordinary Procedure. This guide will lay out each step in both procedures.
Under Scottish Law, it is common place for the financial and child welfare arrangements to be resolved before seeking a divorce, or within a defended divorce action.
To qualify for a divorce under Scottish law you must meet certain criteria in terms of residency – they are:
- You and your spouse/civil partner are habitually resident in Scotland,
- You and your spouse/civil partner were both last habitually resident together in Scotland and one of you still resides there,
- Your spouse/civil partner is habitually resident in Scotland,
- You are habitually resident in Scotland having resided there for at least one year immediately before this application is made,
- You are habitually resident in Scotland having resided there for at least six months immediately before this application is made and you are domiciled in Scotland, and/or
- (For Divorce applications only) You and your spouse are domiciled in Scotland,
Which failing
- Either you or your spouse / civil partner are domiciled in Scotland, and
- Additional provisions apply which enable nationals of other member states of the European Union to qualify. For further details on this contact ask your nearest CAB, or Sheriff Clerk’s Office.
And
(For Sheriff Court applications ONLY)
- you have lived at your current address for at least 40 days before the date of signing the application,
- your spouse / civil partner has lived at his/her current address for at least 40 days before the date of you signing the application, or
- either you or your spouse / civil partner have no known residence in Scotland, but did live at the address shown for at least 40 days, ending not more than 40 days before the date of you signing the application
To qualify for the Simplified Procedure there must be no outstanding money issues, children under the age of 16 (this includes step-children and adopted children as well as children born into the marriage), no mental disorder and no other court proceedings. If you can not meet these criteria, then you will need to undertake the Ordinary Procedure.
Reason for Divorce/ dissolution of civil partnership
- Your marriage / civil partnership must have broken down irretrievably because you and your spouse / civil partner have lived apart -
Either: for at least one year and your spouse / civil partner will consent to the divorce / dissolution of civil partnership in writing.
Or: for at least two years.
- OR You or your spouse /civil partner has been issued with an interim gender recognition certificate.
If you wish to apply for a divorce / dissolution of civil partnership for any other reason, you should consult a solicitor or ask for advice from your nearest CAB.
If you wish to divorce on the grounds of Unreasonable behaviour or Adultery, then you must again use the Ordinary procedure (under which you can also divorce on the grounds of 12 or 24 months non-cohabitation).
Finances / Asset Division
All financial arrangements and arrangements for any children must be agreed upon by both parties before any divorce proceedings can begin.
Couples in Scotland will usually legally separate by means of a separation agreement. This is often entered into when the couple initially separate, to regulate their financial affairs and the care arrangements for their children. It's common for the couple to come to an agreement regarding the division of their assets
and for payment of financial support for the spouse and children and indeed for the division of assets to take place at, or shortly after, the time they separate. Thereafter, if the parties do come to divorce, the divorce action can proceed on an uncontested basis.
Such separation agreements are normally registered in the Books of Council and Session located in Edinburgh; this can be done simply by writing a letter to the Books of Council and Session with a copy of the signed agreement and asking for it to be registered. There is a fee payable depending on how many pages the agreement extends to and how many copies are required; once registered, the agreement has the same effect as a divorce court decree and can be enforced.
There is only limited scope for changing the terms of a registered agreement. For example, it's possible to vary the arrangements made for the care of the children and to vary the arrangements made for the payment of maintenance for a spouse and/or children if there is a change of circumstances. Otherwise the provisions of the agreement can only be challenged if it can be shown that they were not fair and reasonable at the time they were entered into.
There are four steps which should be considered before making a decision about the financial arrangements. Please note that matrimonial property is that which is accrued between the date of marriage and the date of separation.
1. Establishing the date of separation on which the married couple cease to cohabit as man and wife.
2. Identifying all the assets owned jointly or individually by a couple at the separation date including the house, furnishings, a car, pensions, savings and investments and any outstanding liabilities (mortgage, car finance, personal loans, credit card debts etc) in existence on the date of separation.
3. Determining any non matrimonial property by looking at the individual assets and seeing the circumstances in which they were acquired. Assets owned by either party before the marriage or those gifted or inherited are not matrimonial property.
4. Valuing matrimonial assets as at the date of separation, for example, by providing statements for savings, asking insurance companies for surrender valuations of endowments and pension providers for the Cash Equivalent Transfer Value. Endowment policies and pensions started before marriage are apportioned for the years of the marriage. It's best to have agreement before having the house valued by a Chartered Surveyor. The liabilities are deducted from the assets to provide the net value of matrimonial property.
Scottish Divorce law underpins the “clean break” premise when it comes to financial agreements – and these are usually accounted for in capital, although when there isn’t sufficient capital deferred lump sum payments are a possibility. The matrimonial assets are usually determined at the time of separation- anything acquired after that date is not usually counted as a matrimonial asset. Bank and savings accounts, whether they are in joint names or not, are also counted as matrimonial assets. It is only the pension/s accrued during the length of the marriage that is relevant. It is very rare that a court will decide the asset split and financial arrangements – only about 3% of cases are decided in court, the majority are haggled out via the solicitors or between the two parties.
Aliment (financial support)
Under the Family Law (Scotland) Act 1985 there is a general obligation to provide support "as is reasonable in the circumstances" by a husband and wife to each other, a natural parent to their child and a person to a child who has been accepted by him as a child of his family. This is known as 'aliment' and could apply equally to the situation when husband and wife or parent(s) and child live together as when they are separated. A child is defined as a person under the age of 18 years or over that age and under the age of 25 years who is in education or training.
Claims for aliment may be made in either the Court of Session or the sheriff court unless the court considers it inappropriate in any particular case. In determining the amount of aliment to award the court is directed to regard the needs and resources of the parties, the earning capacities of the parties and generally to all the circumstances of the case. On an application to court by or on behalf of either party an order or agreement for aliment may be varied, recalled or terminated if there has been a material change of circumstances.
