1. Ordinary divorce
One option for ending a marriage – the most obvious – is getting a divorce. There are generally three things stages to consider when getting a divorce (or an ‘ordinary divorce’ – as opposed to a ‘DIY’ or ‘simplified divorce’): dissolution of the marriage, children’s arrangements and financial arrangements.
1. Formalising the divorce
In Scotland, a divorce is confirmed when the parties obtain a single divorce certificate – an ‘extract decree of divorce’. This is generally granted after the parties have agreed on financial arrangements and arrangements regarding any children.
To get a divorce in Scotland, at least one of the two grounds for divorce must be proven. The two grounds are that:
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an irretrievable breakdown of the marriage can be proven
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one of the parties has obtained an interim gender recognition certificate (ie a certificate which legally recognises a transgender person’s gender).
For an irretrievable breakdown of the marriage to exist, one or both of the parties must be able to prove that:
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unreasonable behaviour has occurred in the marriage
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adultery has taken place
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both parties agree to the divorce and have led separate lives for at least a year, or
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if only one party agrees to the divorce, both parties have led separate lives for at least two years
For more information, read The divorce process in Scotland.
2. Child arrangements
Making arrangements to protect any children affected by the divorce generally involves deciding how you will care for the children, where they will live, and how they will be supported.
Making these decisions is automatically required for children under 16, and the duty to make financial and living arrangements for children can last up to the age of 25 if they are in full time advanced education. It is not possible to obtain an extract decree of divorce until a court is satisfied that satisfactory arrangements for any children are in place.
For more information, read Child maintenance in Scotland.
3. Financial arrangements
Making financial arrangements includes deciding how you will divide your assets and liabilities and where you will live.
If you agree on arrangements regarding financial support, this is called a ‘voluntary agreement’.
However, a divorce does not end the right of one former spouse to make financial claims on the other and one party can apply for a court order in relation to financial support from the other party. Therefore, where voluntary agreements are made, it is advisable to have your financial arrangements recorded in writing, detailing your agreement and providing that neither of you can make a financial claim on the other in the future.
2. Separation
Sometimes, a couple may want to separate without immediately seeking a full, formal divorce. In these situations, informal separation is an alternative option. Separation involves two spouses agreeing to separate.
You can simply come to an informal arrangement with your spouse by choosing to stop living together and essentially bringing your relationship to a conclusion.
You will need to agree on the practical arrangements, such as:
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how to split any finances and possessions
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what to do about your accommodation (eg if you have a joint mortgage, will you sell the property or will one of you buy the other’s share of the mortgage?), and
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if you have children, which parent will become the primary carer and how will their financial needs be met
If you are in receipt of any benefits or tax reductions as a result of your marriage, you will also need to inform your council, benefits office, HMRC and any other relevant bodies.
Informal separation in this way does not separate you legally and you cannot remarry without first obtaining a formal divorce.
In Scotland, the parties can enter into a minute of agreement (a type of formal legal agreement) to detail the terms of their separation. This document deals with and resolves issues arising from the separation, with particular regard to financial arrangements.
A minute of agreement regarding financial support can be made either verbally or written down. However, It is advisable to have your agreement recorded in writing by a solicitor so that you have a clear record in case of future disputes. Additionally, any minute of agreement that has been written up by the parties should be registered, to ensure that the document is legally enforceable and cannot be changed by one party alone.
Where a minute of agreement for separation is entered into, a simplified ‘DIY’ divorce procedure may be available if the parties later wish to formally divorce.
3. DIY divorce (or ‘simplified’ divorce)
A less expensive and more straightforward ‘DIY divorce’ method may be available if:
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both partners agree on financial and child arrangements (ie there are no decisions on these matters outstanding for the court to make)
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there are no children of the marriage under 16 years of age, and
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divorce is being sought based on irretrievable breakdown based on separation
To utilise this option, you will need to make yourself aware of the various elements of the process and be willing to undertake all the admin.
To achieve a DIY divorce in Scotland, you can apply to the sheriff court or the Court of Session using the appropriate forms.
For more information, read The divorce process in Scotland.
4. Judicial separation
Judicial separation is another option. It only applies to ending civil partnerships and is quite rare. It is a court order that stops the partners’ obligation to live together.
Judicial separation does not dissolve the civil partnership, so neither civil partner is free to enter into a new civil partnership or to marry. It also does not change (eg remove) the partners’ rights to remain in the family home – an exclusion order must be granted by the courts if one partner does not wish to leave a property that the other partner wishes them to leave.
What if you can't agree on financial or child arrangements?
There are several options if you and your spouse can’t agree on key divorce considerations. Options include:
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mediation
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arbitration
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using a solicitor
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going to court
Mediation
Family mediation is where a mediator (ie an independent, trained professional) helps you and your ex-partner to work out agreements for your children or your finances. The mediator cannot take either party’s side, but can assist you to create a parenting plan or help you to figure out which financial documents to base your decisions on. They will also be able to recommend a lawyer who will be able to record your agreements into a legal document. For more information, read Mediation.
Arbitration
Arbitration is distinct from mediation, in that it involves appointing an arbitrator (ie an independent third party trained in arbitration) to make a decision on any financial and property issues arising from the breakdown of your relationship (ie rather than the partners needing to reach an agreement). Another notable distinction is that an arbitrator’s decision is legally binding. For more information, read Arbitration and arbitral awards.
Using a divorce solicitor
Using a solicitor can be expensive, but a solicitor will manage all stages of the divorce process. It may be necessary to use a solicitor where there are tricky issues involved and unresolved disputes. Often they will be able to help you achieve a divorce without the involvement of the court (other than the court needing to grant the extract decree of divorce).
The Law Society of Scotland has a free database for people searching for a Scottish divorce solicitor.
Going to court
Going to court can be costly and may involve using a barrister to convey your case if the case goes to final hearing before a judge. However, if you and your partner are unable to negotiate (such as in cases of domestic violence, or where your partner refuses to disclose assets) or if one partner does not agree to a divorce, it may be necessary to apply to the court for a financial order. In Scotland, if you have children under the age of 16, you will have to apply to the courts because they wish to ensure that any arrangements made for children are adequate.
