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.