Divorce and separation in Scotland

We can help you navigate through the complex process of divorce and separation, with an approach that is tailored to your circumstances and needs.

John Roberts – Austin lafferty Partner/Director

When parties separate, for whatever reason, it is inevitably a difficult experience.

It may be that the marriage/partnership has failed due to the fault of one individual or it may be that things have broken down irretrievably on a mutual basis. It will perhaps be difficult to keep your emotions, hurt and anger out of the negotiation. At Austin Lafferty, we are experienced in all aspects of seperation and divorce in Scotland. 

We offer a free first consultation so please feel free to contact us in total confidence. One of our friendly, expert solicitors will be available for a meeting with you at one of our offices.

Divorce in Scotland - What's involved?

Separation, Divorce and Fault or Blame

Although it might be difficult to keep the ‘who did what’ and ‘whose fault it was’ out of equation, the law almost never takes into account who has caused the breakup.

There are very few separations/divorces in which the blame for the breakup needs to be determined for legal purposes when determining the financial separation agreements in Scotland. There may be reason to discuss whose fault it was should a ‘fault’ reason for divorce be sought, but these cases are few and far between now that a year’s separation can be the basis of a divorce by consent.

Financial Settlement and Minute of Agreement

In order to assist a financial settlement the solicitor for each spouse/partner needs to value the matrimonial property - which may seem a cold and calculating process, but is essential.

Once there is a clear picture of what is owed by the spouses both singly and jointly then both parties will usually come together either physically or by correspondence between solicitors, and try to negotiate a settlement. This negotiated settlement, if successful, will result in a Minute of Agreement. This is a signed and registered document which ensures that the settlement is legally enforceable – and cannot later be changed by one party alone. Should the other party default on one of the agreed terms than you have the right to apply to the court to have that right enforced.

The Date of Separation and its relevance

The Date of Separation (Referred to in law as the Relevant Date) is the date when the parties finally and actually separated. There doesn’t need to be any formal document confirming it. This is also the date when most matrimonial asset and debts are valued for separation/divorce purposes. It can be sometimes be disputed by the parties especially if they have drifted apart over time rather than had a major fall-out. Whilst it is usually the date when one spouse leaves home, it sometimes occurs even though both start to live separately under the same roof.

Distinction between conduct and finance

The law is not interested in who is the “guilty” party in separation or divorce in Scotland, nor who has left home, or has gone off with someone else, or who has initiated the separation. Matters of finance, property and child care are treated almost wholly separately from conduct, and the principles of fair sharing of asset and debts do not allow for consideration of which party “deserves” the money more as the wronged spouse.

The Matrimonial Home

Both parties are entitled to remain in the house until such time as the marriage is legally brought to an end. Even if the home is owned by one alone, the other is legally entitled to remain there with occupancy rights. Life within the home can become very difficult once the parties have decided to separate.

However it does not mean one can force the other to leave. Should one of the parties decide to leave and live elsewhere then they will still be allowed to have access to the property (within reason). Even if one partner (say the sole owner of the house) were to attempt to sell the house while the other partner remains living there the purchaser cannot force the spouse to move out as the remaining spouse has enforceable occupancy rights, so it would be almost impossible for such a transaction even to get off the ground, and thus the threat of selling the house over the head of a spouse is an empty one.

Should there be an issue by one spouse on the other which would make it impossible for one of the parties to remain in the property, then exclusion orders can be sought allowing the under threat party to remain in the property – again no matter whose name the house is in. Although one spouse may move out they do still have a right to enter the property. This could only be countered if there was an interdict or exclusion order in place excluding one of the spouses. Similar rights exist now for unmarried cohabitees and civil partners.

Definition of Matrimonial Property

This is property which is owned by the parties in the marriage / civil partnership. However, to be taken into account the property must have been acquired after the date of marriage / civil partnership but before the date of separation. As is usual in the law there are some exceptions. Where one of the parties inherits either property or money during the marriage from another person such as their parents then this is not classed as Matrimonial property. The same can be said for a gift received from a third party e.g. a painting given to one of the spouses by their parent would not be classed as matrimonial property. However should the inherited or gifted item be money and the party then buys an item with it for use within the marriage e.g. a car, then the car become matrimonial property.

One further exception is where property is acquired by one of the parties prior to the date of marriage / civil partnership but with the intent of it being a family home e.g. a flat is bought by one party before they get married but with the intention that they would move in after the wedding, then this is also classed as matrimonial property.

Matrimonial debts

Unlike matrimonial assets these for some purposes remain with the individual who signed up for the debt originally. Joint debts such as the mortgage are equally split between the two parties. However there are some exceptions. For example if the wife takes out a loan for the renovation of the family home bathroom, then although the debt is in one name, the loan was for the improvement of a matrimonial asset and for the enjoyment of both parties, hence is matrimonial. Like the assets the debts required to be vouched. When it comes to negotiating a settlement, debts even in the name of one spouse alone are shared if the debt was for matrimonial purposes – holidays, home improvements, general housekeeping and more.

The Process of Vouching

All assets and liabilities i.e. property owned and debts owed by either party on their own or as a couple need to be vouched i.e. proved by documentation/valuation. If an asset is stated as being inherited some type of evidence will be required to show the other side that it was inherited i.e. a Will or a court certificate of Confirmation (probate) or perhaps a letter from the solicitor who wound up the deceased’s estate. Where a loan was taken out for a home improvement the loan application stating home improvement and/or receipts and invoices for tradesmen can be used to prove the status of the loan.

Fair Division or fair sharing

All assets and liabilities i.e. property owned and debts owed by either party on their own or as a couple need to be vouched i.e. proved by documentation/valuation. If an asset is stated as being inherited some type of evidence will be required to show the other side that it was inherited i.e. a Will or a court certificate of Confirmation (probate) or perhaps a letter from the solicitor who wound up the deceased’s estate. Where a loan was taken out for a home improvement the loan application stating home improvement and/or receipts and invoices for tradesmen can be used to prove the status of the loan.

Unequal Division

There are many reasons why an equal division of the matrimonial property would be unfair and your solicitor will assess your circumstances to determine whether your set of circumstances would warrant the solicitor to argue for an unequal split in your favour. The other spouse/partner’s solicitor will of course probably try to argue against this or even for an unequal split in their client’s favour.

The following considerations may be taken into account:

  1. Has either spouse/partner been economically advantaged or disadvantaged by the marriage? The common scenario is when the woman has taken a break from her career to raise children. The courts now take this into account if relevant. In the main the courts will look at the amount of disadvantage suffered by the individual and will calculate a one-off payment, which may for example take the form of transfer of the other spouse’s half of the property.
  2. If there are children under 16 years of age then one spouse may have the main burden for the day to day care of the children. The courts will look at transferring the property which allows the children to remain in their own home but may also look at a periodical allowance (regular maintenance for a limited period). Courts are not keen to have periodical allowances as this maintains the link between the parties and doesn’t follow the philosophy of the clean break. If a periodical allowance is agreed then this would normally only continue until the child reached the aged 16 years.
  3. Dependent on the age of the disadvantaged spouse (often the woman) the courts may set up a periodical allowance for a short period (up to 3 years) which allows the spouse to retrain. This specifically aimed at the older woman who has been at home for years and has very limited skills or experience to offer an employer. The allowance would help the spouse to retrain and gain employment.

There is a safety net set up by the law which catches any spouse who is going to suffered serious hardship but doesn’t fit into any of the above categories. This allows a periodical allowance for a reasonable time and is the only one which may continue indefinitely.

Children (where they live now and in the future)

Please note that although you may be familiar with the words Custody and Access, some years ago these were replaced in Scottish law with the words Residence and Contact, which mean more or less the same things respectively.

It is difficult not to involve any children in arguments. However parents need to remember that there are two parents both of whom need to put their own feelings to one side and make arrangements which take into account what is in the best interest of the child. Most couples separating are able to arrange and agree the care of the children – where they will live and how often the non-resident parent will have contact. Such agreements are either made by the couple themselves or with the help of solicitors, or other mediators. Sometimes these arrangements are then set out in a minute of agreement such as described in earlier headings in this note. Should no agreement be reached and matters have to be resolved in court, then the court will not take into account just the parents’ views (though they may take into account negative or damaging conduct by parents should that be detrimental to what is in the best interests of the child). Dependent on the age of the children their views may be taken into account. The older a child the more say he or she has in where he or she lives and how much contact with the other parent there is. Court cases involving child care often involve the use of independent court reporters ( often solicitors themselves) and/or social workers investigating the whole background of the case and the child’s life, which can be quite traumatic for children. it is always better to come to an amicable arrangement for the children either face to face or by asking your solicitor to negotiate the issue with the other party’s solicitor.

The arrangements made at the time of separation may very well require to change as children get older and they start school or become teenagers and this can be built into the Minute of Agreement. Do remember that in law the contact with, or residence of, a child is not for the parent’s benefit but for the child’s.

Maintenance

Maintenance of Spouse

Aliment or maintenance is the payment that arises out of the obligation to reasonably support a husband or wife and any children from the marriage. This support needs to be reasonable and takes into account the needs and resources of both parties, the earning capacity of the parties and any other relevant circumstances. It does not take conduct into account.

With regard to Spousal maintenance, the courts are reluctant to grant periodical allowance as they feel that clean break between couples and separating is preferable to having one party dependent financially on another even after divorce. They are more likely to make arrangements to transfer capital or some other asset. However in some circumstances (see above) a periodical allowance will be granted by the court or negotiated between the parties.

Maintenance of Children

It is preferable that an agreement is reached by negotiation for both financial support and living arrangements for any children of the marriage / partnership. However an order can be sought from the court should an agreement not be reached. An order cannot be sought should the Child Support Agency be involved in the matter. The CSA website has an online calculator which allows a very rough guide to what should be paid by the absent parent. The payments are made until the child reaches the age of 18 (or 25 if still in full time education).

Reaching an agreement

Reaching a negotiated agreement

When parties separate they may appoint solicitors (although some don’t). The solicitors act on each party’s behalf. It is not appropriate to have the same solicitor for both parties due to conflict of interest. Initially each party will value the matrimonial assets (including such assets as pensions and any businesses owned by either spouse) and liabilities (debts, loans, financial obligations owed) in their sole or joint names. The matrimonial home requires to be valued and a redemption figure for the mortgage obtained. This can take some considerable time especially when other agencies are involved.

Once both parties have a clear picture of the value of the assets and liabilities then they sit down with their solicitor and discuss how they wish to proceed, and whether there are any grounds for an unequal division . Once the solicitor has taken instructions then negotiations can commence. These may take the form of letters back and forward between solicitors and/or a meeting between the parties’ solicitors with or without the parties actually present. The best possible outcome is for an agreement to be reached by the parties, to avoid having to go to court. Once an agreement is reached then a Minute of Agreement is drafted by one of the solicitors which will then be passed between the solicitors until both sides have revised and negotiated, and are happy with its terms.

Time it takes to reach an agreement

This varies from case to case. Some parties can arrive at an agreement very quickly and therefore the process can take a few short months. However for other parties it may take months and even years to reach an agreement.

The Minute of Agreement

Once a final draft of the document detailing the terms agreed by the parties has been reached then both parties will be required to sign the document before witnesses (the solicitor can witness, and often does). It will then be sent to the public register called the Books of Council and Session in Edinburgh for registration and you will receive a copy for your records. This document is a record of both parties’ enforceable rights and should one party renege on any part of the agreement then the other one can have enforcement proceedings carried out on the strength of it.

Litigation (Court action)

In some cases parties will reach an impasse and it will require one party to raise a court action in the local Sheriff Court, or the Court of Session (the superior civil court of Scotland, which sits in Edinburgh) in order that the Sheriff makes a ruling and impose terms. This is an expensive and lengthy process which as well as increasing the cost and length of the process increases the stress and disharmony between the parties.

Divorce and Separation FAQs

We've prepared a list of the most common questions we recieve when dealing with divorce cases in Scotland.


The costs of a divorce or dissolution of a civil partnership can vary considerably, depending on whether it is defended or undefended, and the amount of work that solicitors have to do. A settlement negotiated out of court between parties advised by solicitors and leading to a Minute of Agreement cannot be costed in advance as there are so many variables, but any final cost less than £1,000 is a very low fee indeed. When going to court, the average cost of an ordinary undefended court divorce without financial and other claims will amount to about around £1,000.

Should court action have to be raised to deal with financial and/or child care matters, then once again this cannot be costed in advance but will almost certainly cost many thousands of pounds. The sheriff decides who has to pay the costs of the action, unless the parties have agreed how to meet the legal costs. The court can also decide that each partner has to pay their own costs. Should an amicable agreement be reached then each party will be liable for their own legal fees and any outlays incurred.

You need 3 things before you can apply for a divorce in Scotland: 

(a)  Agreement with your partner with regard to any children under the age of16,

(b)  No outstanding matrimonial finances to be sorted out.

(c) A ground for divorce.  If all of these are met then you can be divorced in a matter of weeks.

Simply put, there are few advantages to a divorce apart from being able to remarry.  When parties separate, they often come in and ask for a divorce.  Well, do you need a divorce?  Only if you want to remarry.  The finances relative to a relationship are more commonly dealt with by way of a separation agreement.  A separation agreement is a contract entered into between the parties that gives them both financial independence.  The agreement can deal with the family home, bank accounts, shares, pensions and credit cards together with any support money required and even child access.  Usually parties enter into an agreement and then wait for a ground for divorce. The most commonly used grounds are 12 months post separation with the other party’s consent or 24 months post separation without the other party’s consent.

The divorce in itself can be inexpensive and quick but what is expensive is the time it takes to reach settlement with regards to the children and/or the finances.  As couples fail to reach agreement and if the court ultimately needs to arbitrate on matters, then divorce can become expensive. 

Yes, a fixed price divorce is an option.  Ask your solicitor to agree a fixed price before instructing her/him.

Pensions are considered matrimonial property.  If a party builds up a pension during the period of marriage then that pension would be part of the matrimonial assets.  It requires to be valued after they separate and the other party who doesn’t have the pension is due a share of the increase in value of the pension from the date of marriage to the date of separation.  If both parties have a pension then both pensions will need to be valued and if there is a difference in the relative values then a compensating payment will have to be made.  The compensating payment can be a capital sum or a pension share depending on the circumstances.  A pension share, once implemented, will mean that the other party receives a separate pension, independent of the spouse’s pension, when they reach retirement age.

The matrimonial assets are the assets accrued generally after the date one is married and before the parties separate.  These assets are all valued and their value totaled and then the debts built up after the date of marriage and before the date of separation are deducted.  This is defined as the net matrimonial assets.  Each asset thereafter doesn’t need to be split.  What usually happens is that, if possible, the parties retain the respective assets in their name and the party who has the lesser amount receive a balancing payment from the other party.

There is a difference on the answer to this question depending on whether or not the parties are married.  If they are married then both parties have occupancy rights to the family home irrespective of whose name is on the title.  If the parties are cohabiting however then the party whose name is on the title will have to apply to the court to gain occupancy rights.  Without a ground for divorce then either spouse will have a period of 2 years to continue living in the property.  After 2 years one of the parties can force the issue and apply for a divorce on the grounds of being separated in excess of 2 years and this will start the process whereby the court may decide if the house is to be sold.  Even after the 2 years is up however and one party has applied to the court, matters may still take many months to resolve before the house is to be sold, if at all, depending on the decision of the sheriff.

Car ownership is different from being the registered keeper of a car.  A registered keeper, i.e. the person named on the DVLA V5 certificate does not denote ownership.  It is a matter of fact who owns the car.  Who signed the sales agreement and who paid for the car?  Is there a credit agreement associated with the car and if so, what type of agreement is it?  If it is a hire purchase agreement then the car will be owned by the credit company.  What was the intention of the parties?  Was it a gift?  All of these factors will determine who owns the car.

In Scotland the position for children born sine 2006 is the same whether or not the parties are married as long as the father’s name is on the birth certificate.  In these cases, a married mother or father and an unmarried mother and father have the same rights.  The rights and responsibilities of both parents are the same.  In practical terms if a father refuses to return a child to the mother the only course of redress is for the mother to apply to the court for an order to regulate matters and likewise if a mother refuses the father contact with the child then the father has to apply to the court for an order to regulate matters.  There is no difference based on the sex of the parent.

A mortgage is a debt payable by the person named on the papers signed at the time it was taken out.  This may be one party or both parties.  If only one party has taken out the mortgage then it is only that party that the lender can sue if the mortgage remains unpaid and ultimately the lender can then force the sale of the house.  If both parties enter into the mortgage then the lender can sue either or both parties to collect any sums owned and again force the sale of the house. The mortgage payments may still however be taken into account when splitting the matrimonial assets.  If one party keeps paying the mortgage after separation then he or she may seek to recover half of those mortgage payments back from the other party when considering a fair division of the matrimonial assets.

The current legislation doesn’t state that the assets are split equally it states that there should be a fair split of the assets.  A fair split of the assets is an equal split unless there are special circumstances.  There are 5 special circumstances listed in the current legislation, a. an agreement between the parties such as a prenup, b.  the source of where any funds came from and this could be savings a party had before marriage, c.  any destruction, dissipation or alienation of assets by one party and this could relate to such matters as gambling by one party whereby they have used a lot of funds or assets to funds the addiction and therefore reduced the level of matrimonial assets, d.  the nature of the matrimonial property or use made of it e.  expenses incurred by either party in relation to the divorce.

Gifts from third parties are not included in the definition of matrimonial property and therefore do not need to be considered.  However, gifts to either of the parties are included therefore a wedding and/or an engagement ring would be included in the definition of matrimonial property.  In practical terms these matters are not normally valued and split, parties usually agree to retain their respective rings.

 Inheritance is not included in the definition of matrimonial property and therefore is not included, therefore whatever is inherited cannot be claimed by a separating partner.  However, one must be careful because if you inherit a sum of money, whilst that money is excluded, if you buy a car with the money, the car becomes a matrimonial asset.  The safest thing to do with inherited funds is to retain them in the form you received them.

Family pets can cause arguments.  A bit like with a car (sorry animal lovers) one must ask the question, who owns the pet?  Who bought it and when and what was the intention?  If you own the pet, you keep the pet but matters are rarely that simple.   Many bitter augments can arise over family pets at separation. 

A credit card is a debt like a mortgage but one that isn’t secured over a home.  A credit card debt is payable by the party who signed up for the card.  You may be an additional card holder but the additional card holder won’t be liable for payment of the debt.  The named party who receives the statement will need to pay the monthly payments and if they stop the credit card company will only pursue the card holder for the debt.  The credit card is likely to be matrimonial debt however to be taken into account when working out the net matrimonial assets, if it was taken out after the date of marriage and before the date of separation.

When it comes to deciding what happens to children when separation or divorce occurs, there is a slight difference between married couple and unmarried couples.  In Scotland married couples have the same parental rights and responsibilities.  What that means is that there is no default position as to what parent the child or children lives with after separation.   However, with an unmarried couple, they have the same rights if the child was born after 4 May 2006 and the father’s name is on the child’s birth certificate. If the child was born before that date, then an unmarried father has no parental rights and responsibilities.   A couple should agree a pattern of contact with the child after separation that fits in with both of their new routines and what they consider to be best for the child to give him or her stability and ensure wellbeing.  If they can’t agree, then in the first instance the parties should consider mediation to allow any difficulties or disagreements to be discussed and hopefully overcome.  As a last resort, if this fails then there will be no option but to apply to court and the Sheriff will decide what is in the child’s best interests.

Divorce is granted in Scotland when there is an irretrievable breakdown in a marriage.  This is normally established by proving one of the following grounds of divorce:

•    Separated more than 12 months with spouse consent
•    Separated more than 24 months with no consent
•    Adultery
•    Unreasonable behaviour
However, even if you have a ground for divorce, a divorce will not be granted if there are issues outstanding relative to children under 16 from the marriage or if there are finances outstanding relative to the marriage.

The unreasonable behaviour must be after the date of marriage.  The physical condition of the spouse in itself doesn’t constitute unreasonable behaviour, however if the spouse refuses to take precautions to reduce the condition then this refusal to take action could be deemed unreasonable behaviour.  The simplest example of this would be an incontinent spouse who refuses to wear protective underwear.  In order to rely on this ground for divorce a spouse must prove that the behaviour in question was such that it cannot be reasonably expected to continue to cohabit with the other spouse.  There is a test for reasonableness here and such behaviour as snoring may not constitute unreasonable behaviour.   The behaviour that normally constitutes unreasonable behaviour is physical or verbal abuse.

The length of time varies, even if the ground can be proven, depending again on whether there are children under 16 and whether all finances relative to the marriage have been settled.  Divorce will not be granted until these matters are all settled.  However, from start to finish, after the raising of an action for divorce, it will certainly take quite a few months and closer to a year to conclude.

Divorce can be an expensive option and the only benefit of raising a court action for divorce rather than dealing with matters by way of a separation agreement, is that after divorce you are free to remarry.  A separation agreement, carefully drafted and signed by the parties will give the parties financial independence and can also detail the ongoing contact arrangement for the child or children.
 

Separated spouses can still live under the same roof.  The date of separation is determined by when the spouses stopped living together as husband and wife.  This is often the time when one of the spouses leaves the marital bedroom and moves to the spare room or indeed sleeps on the sofa.  In terms of divorce the parties would be considered to be no longer cohabiting at that stage.  The absence of sexual relations is important in considering whether or not the parties are cohabiting. 

Matrimonial assets are defined as assets accrued after the date of marriage and before the date of separation.  A business started during this period will accordingly come within this definition and will require to be valued, and its value will need to be considered when the matrimonial assets are being divided.  If on the other hand the business was started prior to the marriage, but underwent a degree of restructuring during the marriage, then this could convert a business from non-matrimonial to matrimonial property.

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