Divorce and
Dissolution
ABOUT US
If you are experiencing or have experienced domestic abuse,
our Centre can offer legal information and advice on civil
measures such as: protective orders, divorce or separation
from a partner, and child contact and residence. We can also
advise you on your rights before, during and after reporting
domestic abuse to the police, and when engaging with the
criminal justice process.
If you need legal information or advice, or advocacy support,
you can call our helplines. Please see our website for
up-to-date opening hours and availability notices.
The Scottish Women’s Rights Centre (SWRC) is a collaboration between Rape Crisis
Scotland (Registered in Scotland, no. 258568; SCO25642), the University of Strathclyde Law
Clinic (SCO15263) and JustRight Scotland (SCO47818). All legal advice and representation
provided through the SWRC is by JustRight Scotland (SO305962), a firm authorised to act as
solicitors by the Law Society of Scotland (Registered No 53703).
GLOSSARY
Affidavit
A person’s written evidence to the court which is given under
oath.
Family home
The property in which you lived with your spouse or
partner/ex-spouse or ex-partner during your relationship.
This is sometimes called the matrimonial home or former
matrimonial home (FMH).
Inheritance
An asset which is received by you from a deceased person
through their estate.
Spousal maintenance
A regular (usually weekly or monthly) payment of money
from your ex-partner. Before divorce/dissolution, if you
married or were in a civil partnership, this will often be called
‘aliment’. After divorce/dissolution, these payments are
called ‘periodical allowance’. This can be paid in addition to
child maintenance if you share children with your
ex-spouse/civil partner.
Justice of the Peace
A ‘lay magistrate’ appointed from within the local community
who is trained in criminal law and procedure to deal with the
less serious summary crimes (such as speeding offences or
breach of the peace). Justices have access to legal advisers
within the court for advice on the law and procedures.
Notary public
An individual who has the legal authority to notarise a
document where the legal validity of a document requires
the swearing of an oath such as an affidavit.
Commissioner for Oaths
A person (often but not always a solicitor) who is authorised
to witness the signing of important legal documents
including affidavits.
Extract Decree
A formal certified copy of a decree that is required for
enforcement proceedings.
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ABOUT OUR GUIDE
Ending a relationship can be a difficult step. When the relationship has been abusive, you
may be concerned about your safety and have additional worries and issues to deal with. You
do not need to cope with this alone and you can find information about support services at
the end of this guide.
Domestic abuse is a pattern of controlling, coercive, threatening, degrading and/or violent
behaviour, including sexual violence, by a partner or ex-partner (Scottish Women’s Aid). In
Scotland, domestic abuse - including coercive and controlling behaviour and physical abuse -
is a crime. Depending on your circumstances, legal options should be available to you. You
can find more information by viewing our legal guides.
This guide is for women who are leaving an abusive marriage or civil partnership. Please note
that the rules are different for cohabiting couples (couples who live together but are not
married or in a civil partnership). For information about separating when you are not married
or in a civil partnership, please call our helpline or speak to a solicitor.
Remember that this is just a guide and not a replacement for legal advice specific to your
situation. Please make sure that you get legal advice to help you decide what your options
are.
If you are experiencing domestic abuse you may wish to report this to the Police. If you feel
you are in immediate danger, call the Police on 999. If you are not in immediate danger but
would like to report, call the Police on 101. Alternatively, you can fill out Police Scotland’s
online form.
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TABLE OF CONTENTS
WHAT IS MARRIAGE AND CIVIL PARTNERSHIP? 5
MARRIAGE 5
CIVIL PARTNERSHIP 5
‘COMMON LAW MARRIAGE’ 5
MARRIAGES AND CIVIL PARTNERSHIPS ABROAD 6
FORCED MARRIAGE 6
ENDING A MARRIAGE OR CIVIL PARTNERSHIP 7
SIMPLIFIED DIVORCE OR DISSOLUTION 7
THE SIMPLIFIED PROCEDURE EXPLAINED 9
ORDINARY PROCEDURE 10
DIVIDING FINANCES AND ASSETS 11
MINUTE OF AGREEMENT 11
CLAIMS FOR FINANCIAL PROVISION 11
MATRIMONIAL PROPERTY 12
GETTING LEGAL ADVICE 14
SUPPORT AGENCIES AND CONTACT DETAILS 15
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WHAT IS MARRIAGE AND CIVIL PARTNERSHIP?
MARRIAGE
Marriage is a legal relationship which can be registered by two people who are not closely
related to each other. When you register a marriage, the relationship receives legal
recognition which comes with specific rights and responsibilities. Same sex marriage came
into effect on 16
th
December 2014, with many civil partners converting their relationships
into marriages.
Once a marriage is registered, it can only be ended if one of you dies or either of you applies
to the court to bring it to an end, also known as a divorce. If your marriage was void (not valid
or legally binding), applying to bring it to an end is known as a ‘declarator of nullity’ - the
Scottish equivalent to an annulment.
CIVIL PARTNERSHIP
Civil partnership is a legal relationship which can be registered by two people who are not
related to one another. Civil partnerships have been available to same sex couples since 5th
December 2005 and to heterosexual couples since 30th June 2021. Civil partners share the
same legal rights as spouses.
Once a civil partnership is registered, it can only be ended if one of you dies or if either of you
applies to the court to legally bring the partnership to an end, also known as dissolution.
‘COMMON LAW MARRIAGE’
There is a common misconception that when a couple live together for several years the law
will treat them as if they are married or as civil partners. This is sometimes referred to as a
‘common law marriage’. However, since the introduction of the Family Law (Scotland) Act
2006, which came into force on 4th May 2006, it has not been possible to enter into a
common law marriage in Scotland.
Only couples who have been living together as if they are married since before 4th May 2006
may be considered to be in a common law marriage, or ‘marriage by cohabitation with habit
and repute’. For those couples to be considered in a common law marriage, they must have
been living together as if married and friends and family need to believe that they are living
as if married.
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MARRIAGES AND CIVIL PARTNERSHIPS ABROAD
If you are resident in Scotland and marry abroad, your marriage will only be legally
recognised in Scotland if both persons had the capacity to marry under the law(s) of the place
where they lived and if the wedding followed the rules and requirements of the country
where it took place.
The marriage must also meet the minimum requirements of Scots law to be recognised as
valid in Scotland. This means that if either party to the marriage was under the age of 16 or
closely related to each other then the marriage will not be valid in Scotland.
You cannot get a Scottish marriage certificate for a foreign marriage. Until very recently,
marriage certificates from other countries could be stored with the General Register Office for
Scotland/National Records Scotland. This service has been discontinued. If you married in
Scotland and require a copy of your marriage certificate this can be obtained online or
through your local registry office.
FORCED MARRIAGE
A forced marriage is a marriage in which one or both people do not freely agree (consent) to
the marriage and where some form of pressure (coercion) is involved. This pressure can take
many forms and can be physical, emotional, psychological and financial. It can include
deception, threats, blackmail or harassment.
There is often huge pressure to conform to the wishes of family and community. The pressure
which forces a person into marriage does not have to be directed against that person and can
include circumstances in which threats are made to others if they do not agree to the
marriage.
A forced marriage can also occur where an individual is not able to freely agree on their own
behalf; for example, children or adults with a mental disability.
A forced marriage is not the same as an arranged marriage. In an arranged marriage, both
parties consent to the marriage. For more information, see our factsheet on forced marriage.
Forcing someone into marriage is a criminal offence in Scotland. You can also seek civil
protection through a Forced Marriage Protection Order (FMPO).
If you need advice or assistance with stopping a forced marriage or help leaving a forced
marriage then you should take legal advice and you can reach out to the support detailed at
the end of this guide.
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ENDING A MARRIAGE OR CIVIL PARTNERSHIP
In Scotland there are two types of procedure that can be used to apply for divorce or
dissolution of a civil partnership. These are:
● the simplified or “do-it-yourself” procedure
● the ordinary procedure (in the Sheriff Court) or divorce/dissolution procedure (in the
Court of Session).
SIMPLIFIED DIVORCE OR DISSOLUTION
This is commonly known as a “do it yourself” procedure and it is a simple way of applying for
a divorce or the dissolution of a civil partnership. It is available if at least one of the couple is
domiciled in Scotland (which means you consider Scotland to be your home) or has been a
resident in Scotland for at least a year immediately prior to the application being made.
This type of procedure can only be used when:
● You and your spouse/partner have been separated for one year and you both consent
to the divorce/dissolution; or you have been separated for two years; or one of you has
been issued with an interim gender recognition certificate after the marriage.
● There are no children of your relationship under the age of 16.
● There are no signs that you or your spouse/civil partner are unable to manage your
affairs because of mental illness, a personality disorder or a learning disability.
● There are no other divorce/dissolution court proceedings which may result in the end
of your marriage/civil partnership.
● There are no financial matters to resolve. This means either there are no assets or
debts to be divided between you, or you have reached an agreement regarding
division of your assets and any outstanding debts. We recommend you get legal
advice on what financial settlement you may be entitled to. It’s important to think
about this part of the separation carefully before making any decisions. This is a
complex area of law and the financial settlement you may be entitled to can vary
depending on your circumstances.
If you have experienced economic abuse, you may wish to seek specific legal advice about
this. Economic abuse is a harmful form of coercive control that controls and isolates victims
financially, making it harder to leave the abusive situation and to be financially independent
after separation. For more information on your legal options please see our Economic Abuse
Factsheet and Legal Guide.
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Remember that in most cases you lose the right to make any financial claims after a divorce
has been granted. Scots law is very different from the law in England and Wales in this
respect. So you should only use this procedure if you are sure that you don’t want to make
any financial claims against your spouse/partner.
Similarly, if you receive papers asking for divorce and you want to make financial claims, seek
legal advice immediately. If you do not object to the application within 21 days, the divorce or
dissolution will be processed and you may lose the ability to make any claims.
The simplified procedure is only for uncontested divorces or dissolutions of civil partnerships.
If you or your partner disagrees with the divorce or dissolution at any stage, the simplified
procedure will stop.
To apply for the simplified procedure in the Sheriff Court, there are additional residence
requirements that must be met. You can view these residence requirements on the Scottish
Courts and Tribunal Service Website. We would recommend that you find a solicitor or get
legal advice to understand whether you meet these requirements. You may also need legal
advice to know if you should submit your application to the Sheriff Court or the Court of
Session. The SWRC has a guide on Getting Representation and a solicitor signposting
network.
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THE SIMPLIFIED DIVORCE OR DISSOLUTION PROCEDURE EXPLAINED
If you qualify and wish to apply for a divorce or dissolution of civil partnership through the
simplified procedure, you will need to:
1. Download and complete an application form from the Scottish Courts and Tribunals
Service website. You can also contact your local Sheriff Court or the Court of Session
to have a form sent to you.
2. Complete the application form. If your grounds for the divorce/dissolution are one
year’s separation, ask your partner to sign the consent form included and to return it
to you.
3. Fill out the affidavit and sign it before a justice of the peace, a notary public, or a
commissioner for oaths. You can arrange an appointment with a justice of the peace
through your local court, and you can search for a Notary Public on the Law Society of
Scotland’s website.
4. Return the following documents to the court:
● The completed application form which includes the affidavit
● The court fee or a completed form to ask for an exemption from the court fee
● Your principal marriage certificate or your extract/certified copy of the civil
partnership certificate
● Any other documents that are relevant to your application. For example, when
the grounds for divorce/dissolution are that an interim gender certificate has
been issued, this certificate or a certified copy of it should be included with the
application.
Your application is sent to your spouse/civil partner and they have 21 days to decide if they
want to oppose the application. If they don’t oppose the application, then the
divorce/dissolution is granted and two weeks later an extract decree is sent out to both of
you. If your partner lives in another country and/or if they need to translate the document,
your application may take longer to process.
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ORDINARY PROCEDURE
If you're not eligible to use the simplified procedure then you, or a solicitor on your behalf, will
need to raise a court action under the "ordinary procedure" for a divorce/dissolution through
the Sheriff Court or the Court of Session.
You will need to use the ordinary procedure if:
● you have children under the age of 16;
● or you have been separated for less than two years and your spouse/partner does not
consent to the divorce/dissolution;
● or you cannot agree on how your finances should be divided.
A solicitor can advise you on which court your application should be submitted to depending
on your circumstances.
You will have to prove that there has been an irretrievable breakdown of your marriage or
civil partnership, or that an interim gender recognition certificate has been issued to one of
you since you married or established a civil relationship.
An Irretrievable breakdown of your marriage can be proved if:
● There has been unreasonable behaviour on the part of your spouse. This can include
behaviour which is such that it is not reasonable to expect you to continue to live with
them. This can cover a range of behaviours including, but not limited to, physical or
emotional abuse; alcohol or drug abuse; verbal or psychological abuse; refusal to
communicate; or financial irresponsibility.
● Your spouse has been unfaithful to you
● You both agree to the divorce and have been separated for at least one year
● Or you have been separated for at least two years
It is important to know that domestic abuse can fall into the category of ‘unreasonable
behaviour’. If your spouse/civil partner has a conviction for domestic abuse against you, this
will be enough to request a divorce or dissolution. However, a conviction is not necessary if
another person such as a friend or family member can corroborate (confirm or support) that
there was abuse or any other unreasonable behaviour and/or that you were distressed as a
result of the behaviour. If this applies to you, we would recommend that you seek legal
advice from a solicitor who specialises in cases involving domestic abuse.
Divorce/dissolution has significant consequences, so we recommend that you seek legal
advice and ideally also representation. You can find more information on getting legal
representation in SWRC’s guide and you can use the SWRC signposting network to find
solicitors in your area.
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DIVIDING FINANCES AND ASSETS
MINUTE OF AGREEMENT
If you are able to reach an agreement with your former spouse or civil partner regarding the
financial consequences of your separation, you can enter into a contract, usually called a
Minute of Agreement or separation agreement. You can do this yourself or through your
solicitors.
A Minute of Agreement is a legally binding contract that outlines the agreement between
you and your former spouse or civil partner. If you sign this agreement before
divorce/dissolution, there will likely be no need for either of you to make a financial claim
when applying for a divorce/dissolution of your civil partnership. Each person should sign the
agreement and their signature should be witnessed by an independent witness who is over
the age of 16. The signed agreement can then be registered with the Registers of Scotland,
who are responsible for keeping public registers. Once a Minute of Agreement is registered
with the Registers of Scotland, it becomes available to the public.
Remember, an agreement will usually stop you from making further claims against your
spouse or civil partner in the future. For this reason, you should always seek independent
legal advice before entering into any agreement.
If you cannot reach an agreement with your spouse/civil partner about how to divide your
assets and liabilities, then you may need to apply to the court for financial provision on
divorce/dissolution.
CLAIMS FOR FINANCIAL PROVISION
If you need to make a claim for financial provision on divorce or dissolution of your civil
partnership then you should seek the advice of a solicitor. The court will not grant divorce
until a determination on the financial orders has been made. The court will hear evidence
from both sides before deciding how your assets and liabilities should be divided.
The general principle is that the net value of the matrimonial property at the date of your
separation should be shared ‘fairly’ between you upon divorce/dissolution. ‘Fairly’ usually
means equally, but there are a number of reasons which justify you or your ex-spouse/civil
partner asking the court to divide your matrimonial property unequally. In some cases, the
court might decide that there is a need to make additional arrangements depending on the
needs and resources of the couple.
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MATRIMONIAL PROPERTY
Matrimonial property means the assets built up during your marriage and owned by you, your
spouse or the two of you jointly on the date you separate. It does not include inheritance or
gifts from other people. Matrimonial property can include property such as your cars,
pensions, savings and investments, among other things.
If you bought a house before getting married or entering a civil partnership and you used it as
a family home, the house and its contents may also be matrimonial property. It does not
matter that you got the house before marriage/civil partnership if you intended to use the
property as your matrimonial home when you purchased it.
Sometimes it’s not obvious what is matrimonial property, and you should seek specific advice
from a solicitor about your particular circumstances.
When considering how the net value of the matrimonial property should be divided, the court
will consider certain principles. You can find them in section 9(1) of the Family Law (Scotland)
Act 1985:
● Fair sharing
The net value of the matrimonial property should be shared fairly between the two
people. There are situations in which it could be considered fair for the matrimonial
property to be shared unequally, where there are ‘special circumstances’. There is no
specific definition of ‘special circumstances’ but the Act gives some examples of
situations which might be considered as such - for example where one person
deliberately destroyed, reduced the value of, or gave assets away. In this case, the
court might decide to give the other person more than they would otherwise have
received as a result of the behaviour. Another common example of a special
circumstance is where one party used non-matrimonial property and converted it into
matrimonial property. This commonly occurs when one person uses pre-marital
savings or inheritance for the purchase of the matrimonial home.
● Economic advantage and disadvantage
Fair account should be taken of any economic advantage or disadvantage suffered by
either person in the interests of the other person or the family. An example of this
would be if one person gave up their career to care for the children or to support their
spouse/civil partner's career.
● Fair sharing of the economic burden of caring for children under 16
The court may take into account that one person will have primary care of the parties’
children following separation.
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● Economic dependency
This is when one person has largely depended financially on their spouse/civil partner
and are going to need time to adjust to the loss of support.
● Serious financial hardship
When it is likely that one person will face serious financial hardship as a result of the
divorce or dissolution of the civil partnership.
Every couple’s circumstances are different and there can be many reasons why the court may
justify an unequal division of the net value of the matrimonial property and/or additional
claims.
When dealing with finances, in some circumstances the court can take into account the
behaviour during the marriage, for example, economic abuse. However, this is not
straightforward, so you should get advice from a solicitor who specialises in this area of law.
Economic abuse is a crime that can be reported to the police. Please see our guides on
reporting domestic abuse and economic abuse for more information.
Depending on the situation, the family home may need to be sold and the value divided
between you. It may also be possible to reach an agreement or for the court to make orders
to allow one person to continue to live in the family home and for the other person to transfer
their interest in the house to them. This can be a complex matter (particularly if the house is
rented out or owned with a mortgage). Legal advice from a solicitor can help you to have
clarity on the possibilities and options you may have.
When seeking financial provision on divorce/dissolution of a civil partnership, you can ask the
court to make various orders including:
● Ordering your spouse/civil partner to pay you a capital sum. A capital sum is an
amount of money paid to one party from the other.
● Transfer of property from one party to another – for example, transfer of one person’s
interest in a house to the other person.
● Pension sharing - an order that some or all of a pension is transferred into a pension
in the other person’s name.
● Periodical allowance/maintenance – an order that one person should pay money
regularly to another, usually for a limited period of time. These orders are unusual as
the court generally seeks to provide the parties with a "clean break" on
divorce/dissolution.
The court has power to make other ’incidental orders’ if needed. For example, orders for the
sale of a property, to regulate the occupancy of a family home and use of the furniture, and to
regulate liability for mortgage payments or rent. These are only a few examples.
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GETTING LEGAL ADVICE
If you don’t have a solicitor already and you are thinking of ending a marriage or civil
partnership with an abusive partner, call our helpline or book an appointment for one of our
advice surgeries. We can discuss your circumstances and help you understand your options.
You can also visit our website to find a list of solicitors who have completed our domestic
abuse training and to read our guide on Getting Representation.
The Law Society of Scotland also suggest solicitors in Scotland who may be able to assist
you, whether the relationship was abusive or not, and the Scottish Legal Aid Board has a
Solicitor Finder tool you can use.
It is important to know that if you or your spouse/partner have connections with a place that
is not Scotland, the laws of other regions might apply to your circumstances. This means you
may need to get advice from a lawyer in that other place. For example, if you or your
spouse/partner are from England or Wales, you might be able to divorce there rather than in
Scotland and this might be better for you financially. This is a specialist area of law and you
should get advice from a solicitor who has experience of dealing with divorce/dissolution in
multiple locations.
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SUPPORT AGENCIES AND CONTACT DETAILS
Scottish Women’s Aid
Website: womensaid.scot
Local specialist groups: womensaid.scot/find-nearest-swa-group
Scotland’s Domestic Abuse and Forced Marriage Helpline
Helpline: 0800 027 1234 (open 24/7)
Website: sdafmh.org.uk
Rape Crisis Scotland
Helpline: 08088 01 03 02 (open every day 6pm-midnight)
Website: rapecrisisscotland.org.uk
National Stalking Helpline
Helpline: 0808 802 0300 (open daily 9.30am-4pm, except Wednesday 1pm-4pm)
Shelter
Helpline: 0808 800 444 (open Monday-Friday, 9am-5pm)
Website: scotland.shelter.org.uk (webchat open Monday to Friday, 9am-5pm)
Citizens Advice
Helpline: 0800 028 1456 (Monday-Friday, 9am-5pm)
Website: cas.org.uk
Surviving Economic Abuse
Website: survivingeconomicabuse.org/resources
The Forced Marriage Unit
Email: fmu@fco.gov.uk
Helpline: 020 7008 0151 (Monday to Friday, 9am to 5pm)
From overseas: +44 (0)20 7008 0151
Out of hours: 020 7008 1500 (ask for the Global Response Centre)
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