Divorce and fathers rights in Scotland

In Scotland, the legal processes for divorce, separation (ending a non-married relationship) or ending a civil partnership are quite different to each other, and different from England and Wales. We explain the basic process for each.


Ending your marriage

To end your marriage you must ask a court to grant you a divorce on the grounds that the relationship has broken down irretrievably (or, exceptionally, that either you or your wife has begun a sex-change and obtained a gender recognition certificate to change sex from the one on the birth certificate).

Irretrievable breakdown of a relationship can be established in one of four ways:

  • adultery
  • unreasonable behaviour (typically domestic abuse or similar)
  • living apart for one year if you both agree to a divorce
  • living apart for two years, if one of you does not agree to a divorce

Fathers and children: the law

There are two procedures for divorce in Scotland:

  1. A simplified (“Do-it-yourself”) procedure, which applies when the grounds for divorce is based on living apart, when there are no children under 16 and when neither you nor your wife are asking the court to make any financial provision.
  2. A more general “Ordinary Procedure”, applicable in all other cases.

The DIY procedure is invoked by filling in the appropriate forms (available from your local Sheriff Court or the Scottish Courts website and submitting them with an affidavit detailing the circumstances, and the appropriate fee. It takes typically two months to hear if an application made in this way is successful.

For the Ordinary Procedure, which you will have to use if you have young children, it is necessary to issue a Writ for divorce, in either the Court of Session or, more usually, your local Sheriff Court. This initiates a legal procedure broadly similar to other civil litigation.

It is possible to do this without legal representation, but the law, particularly that surrounding property, can be complex and the procedures required are quite difficult to follow, so it is strongly recommended that you use a solicitor.

Before granting a Decree of Divorce, the court will have to be satisfied that appropriate arrangements have been made for the care of any children under sixteen and for division of the marital property. The court will be able to make various orders governing these things, and in particular it will be able to make interim orders and final decrees concerning residence of and contact with children.

Types of contact

In terms of financial provision, divorce in Scotland focuses on a “clean break”, so there is generally no long-term entitlement to, or requirement to pay alimony to an ex-spouse - though children will still have to be supported under child support legislation. Marital property, including the family home and other assets including pensions, will be divided equitably, and in cases of special need there can be a short term provision of aliment to allow for a transition to financial independence.

The family courts: Child Arrangements

Divorce: your action plan in Scotland  

Separation: ending a non-married relationship

There is no legal process to the ending of a relationship in which you were not married. However, you may still use the courts to help you make arrangements if you are unable to reach agreement by any other method. You can ask the courts to deal with:

  • care and contact for your child
  • the division of any joint assets
  • Separation: your action plan

Ending a civil partnership

Ending a civil partnership in Scotland is very similar to ending a marriage by divorce: the same basic procedures apply. If you and your same-sex partner share Parental Responsibilities for children, the court will need to be satisfied that proper arrangements have been made before granting a Decree of Dissolution.


About the author

Clare Kirby qualified as a lawyer in 1983 and worked for several years in industry. She founded Kirby & Co in 1997. As a member of Resolution and an advanced member of the Law Society’s Family Law Panel she is experienced and respected in the field of family law. Trained as a collaborative lawyer, Clare offers clients a range of options - traditional, and collaborative law - to best meet the needs of the individual clients.

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Guest Sunday, 17 January 2021

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