Divorce in Scotland

Marriage and divorce in Scotland is governed by the Marriage (Scotland) Act 1977 and the Divorce (Scotland) Act 1976. It is not always necessary for a formal marriage ceremony to have taken place, and a couple who live together as husband and wife for a year may be considered to be married in law 'by cohabitation with habit and repute' if both are otherwise free to marry. Each spouse is obliged to financially support ('aliment') the other and either can apply for injunctions ('interdicts') under domestic violence legislation.

An application for divorce can only be made if one or both of the spouses has been habitually resident in the jurisdiction for a year or more. The grounds for divorce are the same as in England and Wales:

• Adultery
• Unreasonable behaviour
• Desertion (after two years)
• Two years separation (with consent)
• Five years separation (without consent)

Unlike England and Wales, there is no requirement to be married for a year before a divorce can be applied for. If the action is undefended the ground of divorce can be proved by affidavit, and there is no need to attend court. Divorce actions are heard in the Sheriff Court or the Court of Session.

The division of finances and property on divorce generally follows basic principles: property owned by either spouse which was acquired during the marriage is divided equally. Exceptions include inherited property. Other factors which may be taken into account include one spouse giving up a career to care for the children, remaining children under 16, or severe financial hardship. The court may make orders requiring money or property to be transferred, or maintenance to be paid.

Children have a right to financial support from both parents up to age 18 (or 25 if in full time education). Child support is generally dealt with by the Child Support Agency but the courts can make orders in some circumstances.

Updated 29-02-2000