A divorce is the legal termination or end of a marriage otherwise than by death by the granting of a Decree of Divorce. Dissolution is the term given to describe the legal termination of a Civil Partnership. A divorce or dissolution will be granted by the Sheriff Court or the Court of Session.

In Scotland, a divorce of marriage can be established on four separation grounds. A dissolution of a civil partnership can be granted on any of the below grounds other than adultery.

1. Adultery – whereby one party has engaged an affair or relationship with another individual of the opposite sex
2. Unreasonable Behaviour
3. Where the parties have been separated for a period in excess of one year and the other spouse provides their consent
4. Where the parties have been separated for a period in excess of two years

Prior to a divorce being granted, a Court will need to be satisfied:

1. The financial aspects of the separation have either been agreed or determined by the Court.
2. The long term care arrangements for any children under the age of sixteen have been agreed, failing which determined by a Court.

There are two separate procedures in Scotland for obtaining a divorce which are available depending upon the circumstances of the case.       

1. Simplified Divorce or Simplified Dissolution Procedure

The Simplified Procedure is only available where:

• There are no children of the marriage or partnership under the age of sixteen years
• There are no financial matters to be resolved
• The parties have been separated for a period in excess of one year
• Both parties agree to the Divorce or Dissolution proceeding

The Simplified Procedure is cheaper and quicker than the Ordinary Cause Procedure which is described below.

2. Ordinary Cause Divorce or Dissolution Procedure

The Ordinary Cause Procedure is required whereby one party wishes to divorce or dissolve a civil partnership, and one or more of the following apply:

• The divorce is proceeding on the grounds of adultery (only available to marriage and not Civil Partnership)
• The divorce is proceeding on the grounds of unreasonable behaviour
• There are financial matters at dispute between the parties
• The arrangements for the children are not agreed
• A Divorce under this procedure can however also be raised on the grounds of one year's non cohabitation with consent of the other spouse, or whereby the parties have been separated for a period of two years.
• This option of divorce is necessary where there are children of the marriage or partnership under the age of sixteen years.

In the first instance it is important to try and work through and resolve matters by discussing or negotiating matters with your spouse or partner. In the first instance, it is important to seek independent legal advice so that you understand your legal rights. Family Mediation may be an option which may assist in addressing immediate concerns. Alternatively, negotiations involving the parties solicitors may assist in both parties reaching an amicable settlement on the matters which are not agreed. Where such methods of resolving matters prove unsuccessful, it is possible for either party to seek certain financial orders under the Family Law (Scotland) Act 1985 on divorce or dissolution.

In such situations, it is important that parents focus on what is in their children's best interests. A separation is often a difficult transition for children. Family Mediation offers a range of services to assist parents effectively co-parent their children after a separation. The use of such services can help the parties reach an agreement or make progress in improving lines of communication. Where an agreement does not look likely to be achieved, solicitors can assist in negotiating matters on behalf of both parties with a view to reaching an agreement. In the event that negotiations prove unsuccessful, it is possible to seek the assistance of the Court to determine what would be in the child's best interests. In Divorces involving children, either party may seek also a court order in terms of the Children (Scotland) Act 1995 in respect of the children. It is possible to ask the Court to make a Residence/Custody Order, a Contact/Access Order, an Order for Parental Rights and Responsibilities or a Specific Issue Order.

For further information on orders relating to children, please our Child Law page.

In cases of a simplified divorce, no attendance at court by the parties is required.

In Ordinary Divorce actions, if the divorce is not defended or opposed by the other spouse or partner, then usually there would be no requirement for either party to attend court. In the event that a divorce is disputed and defended, depending on whether the court action fully progresses to a final hearing, both parties attendance at court may be required for certain types of court hearings.

You may be worried about whether you are making the right decision, if you are choosing the separation.  If you did not instigate it, you might want the opportunity to speak to your partner in a controlled environment.  Either way, it can be useful to attend counselling with your partner to see whether there is any chance of saving the relationship.  That way, and even though you will probably still be feeling upset and anxious, you will feel that you have done all you can.  You might also want to consider counselling for yourself, so that you are as well-resourced as possible.  A key to a successful separation is finding ways to minimise the negative impact of it on everyone involved, and wherever possible finding a way forward that enables both you and your partner to feel as okay as possible about the future. 

When you first separate, it is easy to feel overwhelmed.  There will seem so much to do, and so much that you feel you do not know.  If you have children you will be trying to manage their reaction whilst yourself feeling anxious and worried. Make sure you have your support network in place.  The better resourced you are, the stronger you can be for yourself and for those around you.  Tackle things bit by bit so that you are not trying to do too much.  Your family lawyer will be able to talk you through the process and give you clear action points as well as explaining what he or she will be doing on your behalf.  That way, you will feel reassured that there is a clear plan for the way forward.

Often, one of the first aspects which often needs tackled is making sure there are appropriate arrangements in place for paying bills and all the other costs associated with daily living.  When a couple separate and one moves out there are then two households to support, but still on the same budget.  That can be very worrying.  The first step is to put together a list of your monthly income and then your usual monthly expenses.  That way you will be clear about what you have and what you need.  Next, there can be discussion about how best to ensure your needs are met.  If your partner is reluctant to co-operate, then your family lawyer will be able to advise you on the steps that they can take to sort that out for you.  If you are worried about how the mortgage or other liabilities will be paid, contact the providers as soon as possible to make them aware of your concerns.

Knowledge is power.  Fear of the consequences of relationship breakdown and lack of knowledge about outcomes can be daunting for many people. Weighing the options before taking a decision that is suited to your own circumstances is essential.  Arranging a consultation with a Family Law Specialist can provide valuable background information in relation to your legal stand point and the options open to you.  The more you know, the easier separation will be.

Consider what you want for your short, medium and long term future.  Do you want to remain in the matrimonial home or would you prefer a fresh start elsewhere?  It is important you think about what you would like to happen, even at an early stage, as this can help you make decisions at a later stage as things progress.

It is not only legal advice that is important.  You may want to consider advice from a financial advisor particularly if there is a possibility of a pension being shared as part of your separation/divorce.  A specialist family solicitor will be able to highlight to you when input from a financial advisor would be appropriate.

It can be difficult to know when and how to tell your children about the decision to separate. It is important that children know that you are there to listen to them and that you understand that they may have many questions about what the future holds. Remember that there are many helpful resources available to assist separating parents in talking to their children about a change in family circumstances. Remember too that research shows that children can cope with parental separation well, as long as their parents approach the separation in a sensitive and mindful way. A solicitor with experience of dealing with cases involving children will be able to guide you through separation in a way that keeps the interests of your children at the centre of discussions.

There are various ways of resolving the issues which require to be addressed. Going to Court is often the last resort. Choosing the correct process is important, as this sets the tone for future progress. It is important to choose a solicitor who is qualified to give you information about the various processes available, helping you to choose the right process for your circumstances.

Just as it is important to choose the correct process, it is just as important to find a solicitor who is the right fit for you. As well as having specialist expertise and knowledge, it is essential that you are able to feel comfortable speaking to your solicitor openly and that you trust that they understand your aims.