Section 1 of the Divorce (Scotland) Act 1976 sets out the legal foundation for obtaining a divorce in Scotland with its core purpose to identify when a marriage has broken down to the point that divorce is justified.
For individuals considering divorce, it is essential to understand this section, as it provides the only legal grounds on which the Scottish courts may grant a decree of divorce.
1. The Legal Grounds for Divorce in Scotland
Under Section 1, there are two possible grounds on which the court may grant a divorce:
1. Irretrievable Breakdown of the Marriage, which includes:
(A) Adultery
(B) unreasonable behaviour
(C) one years separation (with consent)
(D) two years separation (no consent)
The most common ground for divorce is that the marriage has broken down irretrievably. This must be proven using one of the above statutory facts set out in subsection (2):
(a) Adultery
If the defender (the other spouse) has committed adultery since the marriage began, this can establish irretrievable breakdown.
- The Act states that adultery has the same meaning regardless of whether the spouses are same-sex or opposite-sex.
- However, adultery cannot be relied on if the pursuer (the spouse bringing the action) has condoned or connived in the behaviour.
- Here, the action must be served on the third party.
(b) Unreasonable Behaviour
If the defender has behaved in such a way that the pursuer cannot reasonably be expected to continue living with them, this is also sufficient to establish irretrievable breakdown.
This behaviour:
- Can be active or passive.
- Can include conduct arising from mental health conditions.
- Is assessed objectively and subjectively — what matters is whether cohabitation has become unreasonable for this couple, not for couples generally.
This is often cited where there has been emotional, psychological, physical, or financial misconduct, or persistent disputes making cohabitation untenable.
(c) One Year’s Separation with Consent
If the couple has lived apart for at least one continuous year, and the defender consents to the divorce, the court may treat this as evidence of irretrievable breakdown.
To protect the defender, the Act requires court rules (act of sederunt) ensuring:
- The defender is given enough information to understand the consequences of consenting, and
- Consent is given (and can be withdrawn) in a prescribed manner.
(d) Two Years’ Separation (No Consent Required)
If the parties have lived apart for two continuous years, the pursuer may seek divorce without needing the defender’s consent.
This is the most straightforward route where both parties have moved on but consent cannot be obtained. However, the defender can still oppose the divorce application once it is served. This means an intended unopposed Ordinary Cause Divorce can become an opposed divorce and the action begins the route to Proof.
2. Issue of an Interim Gender Recognition Certificate
Under Section 1(1)(b), a marriage may be ended if one spouse is issued with an interim gender recognition certificate under the Gender Recognition Act 2004 after the date of the marriage.
This allows either spouse to seek divorce where the legal change in gender alters the legal nature of the marriage.
3. Standard of Proof
In all divorce actions, the required standard of proof is the balance of probabilities.
This means the court must be satisfied that the claimed fact (e.g., adultery or behaviour) is more likely than not to have occurred. This is a civil, not criminal, standard.
4. Additional Notes on Cohabitation and Conduct
The Act makes clear:
- Reconciliation attempts do not automatically invalidate grounds such as adultery or behaviour, provided cohabitation resumes only temporarily.
- Conduct must be judged in the context of the marriage. Behaviour that might be tolerable in one marriage could be unreasonable in another.
- For the separation grounds, cohabitation must truly have ceased—the parties must live “separately and apart.” However, parties can reside in the same house and be separated (sleeping in separate rooms etc).
5. Summary of the Most Relevant Points
- There are only two legal grounds for divorce in Scotland: irretrievable breakdown and the issue of an interim gender recognition certificate.
- Irretrievable breakdown must be proven by one of four statutory facts: adultery, unreasonable behaviour, one year’s separation with consent, or two years’ separation without consent.
- Adultery has the same definition for same-sex and opposite-sex marriages.
- Consent procedures for one-year separation are tightly regulated to ensure fairness.
- The standard of proof is the civil standard: balance of probabilities.
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For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.