In Scotland, adult couples, whether mixed-sex or same-sex, have three main ways to formalise their relationship:

• Marriage
• Civil partnership
• Living together as a couple (Dealt with here – cohabitation)

Each option carries different legal consequences. When a relationship ends, the law treats married couples and civil partners very similarly, but cohabitants have a much more limited set of rights.

This article focuses on what happens in Scotland when Marriage and Civil Partnerships come to an end:

• How divorce and dissolution work
• How property, pensions and finances are dealt with
• The role of agreements and the courts

Arrangements for children are covered separately under the law on parental responsibilities and rights.

Marriage, Civil Partnership and Living Together – Why the Choice Matters

The choice between marriage, civil partnership and simply living together has real legal consequences:

• Married couples and civil partners have broad, structured rights and obligations when they separate, especially in relation to property, pensions and financial support.
• Cohabiting couples have far fewer automatic rights, and any claims they can make are more restricted and time-limited.

Because the law for marriage and civil partnership is almost identical, we talk about divorce (for marriage) and dissolution (for civil partnership) together.

Divorce and Dissolution – The Legal Framework

Key Legislation

Divorce and dissolution in Scotland are mainly governed by:

• Divorce (Scotland) Act 1976 – grounds for divorce.
• Civil Partnership Act 2004 – grounds for dissolving a civil partnership.
• Family Law (Scotland) Act 1985 – how property, pensions and finances are dealt with on divorce or dissolution.

Contract law also plays a role, particularly for:

• Prenuptial agreements (before the relationship)
• Separation agreements (after the relationship ends)

Court decisions (case law) then shape how the legislation is applied in practice.

Negotiating Out of Court

Although only a court can grant a divorce or dissolution, many of the practical issues can be resolved by agreement, including:

• How to divide property, savings and pensions
• Ongoing financial arrangements
• Care arrangements for children (decided under separate legislation)

These agreements are often reached through solicitors and may be recorded as:

• A minute of agreement – a binding contract between the parties, usually registered for enforcement.
• A joint minute – an agreement presented to the court in an ongoing case for approval.

Out-of-court negotiation may not be appropriate where there is a serious power imbalance, such as in cases involving domestic abuse. In such situations, court-based solutions and specialist support are often essential.

How the Court Process Works

Court is usually required to formally end the legal relationship (other than cohabitants):

• One person (the pursuer) raises an action against the other (the defender).
• You cannot raise a divorce or dissolution action in joint names, even if everything is agreed.

Most cases are heard in the local sheriff court by sheriffs or summary sheriffs. A small minority of more complex or high-value cases go to the Court of Session in Edinburgh.

A case may be:

• Undefended – the defender does not oppose the divorce/dissolution or the orders sought. Usually when matters are agreed.
• Defended – the defender disputes the ground or the financial/child-related orders sought. No agreement in place.

In an undefended case, the court’s role is often more administrative, provided the paperwork is in order and the legal tests are met.

Ordinary vs Simplified Procedure

There are two main procedures:

1. Ordinary procedure
   • Used for more more complex cases where there are children.
   • Legal advice is strongly recommended
   • Often involves disputes about finances, pensions, property or children
2. Simplified procedure (“DIY” divorce/dissolution)
   • For straightforward cases based on separation for a period of time.
   • Cannot be used where there are children under 16 or outstanding financial issues needing court orders.
   • Designed so many people can use it without a solicitor, although some still take legal advice.

A key decision for separating couples is whether they can use the simplified route or need the ordinary procedure because of children, finances or level of dispute.

Grounds for Divorce and Dissolution

In Scotland, there are technically only two grounds:

1. Irretrievable breakdown of the marriage or civil partnership
2. Issue of an interim gender recognition certificate after the date of the marriage or civil partnership

Irretrievable Breakdown – How It Is Proved (Marriage)

For marriages, irretrievable breakdown can be established in four ways:

1. Adultery by the defender.
2. Behaviour by the defender that means the pursuer cannot reasonably be expected to continue living with them.
3. One year’s separation, with both parties consenting to divorce.
4. Two years’ separation, where consent is not required.

In practice, almost all divorces are now based on separation (one or two years), rather than fault-based grounds.

Irretrievable Breakdown – Civil Partnership

For civil partnerships, irretrievable breakdown can be established by:

1. Behaviour by the defender such that the pursuer cannot reasonably be expected to cohabit
2. One year’s separation with both parties’ consent
3. Two years’ separation without consent

There is no separate ground of adultery for civil partnership.

Adultery – Limited to Marriage

Under Scots law, adultery is narrowly defined and applies only to marriage. Even in same-sex marriages, the legal definition remains based on voluntary heterosexual intercourse with someone who is not the spouse. Sexual relationships that fall outside that definition are not “adultery” in law, but may still be relevant as part of a behaviour-based ground.

Interim Gender Recognition Certificates

Where an interim gender recognition certificate is issued during a marriage or civil partnership, either party can rely on this as a ground for divorce or dissolution. The detailed rules depend on whether the spouse or civil partner has consented to remain in the relationship after full gender recognition is granted.

Dividing Property and Finances – The 1985 Act

When a marriage or civil partnership ends, financial matters are dealt with under the Family Law (Scotland) Act 1985. The overall policy is:

• To achieve a fair division of assets, and
• To aim, where realistic, for a financial “clean break”, so both parties can move towards financial independence.

Matrimonial and Partnership Property – What Counts?

Only matrimonial property (in a marriage) or partnership property (in a civil partnership) is divided under the 1985 Act.

In broad terms, this is:

• Property acquired by either or both parties during the marriage or civil partnership and still owned on the “relevant date” (usually separation or service of the court papers).
• The family home and its contents, even if bought before the relationship, if intended as the family home.
• Pension rights built up during the marriage or civil partnership.

Certain assets are normally excluded, such as:

• Gifts or inheritances from third parties, so long as they remain in the same or substantially the same form.
• Property acquired before the relationship (except in the special case of the family home and its contents).

Agreements About Finances – Separation and Prenuptial

Couples can record how they wish to deal with finances in:

• A separation agreement (minute of agreement) after breakdown
• A prenuptial agreement before marriage or civil partnership

These agreements are generally respected by the courts, especially where:

• There was proper legal advice
• There was full financial disclosure
• The terms were fair and reasonable at the time

However, the court can set aside all or part of such agreements if they were not fair and reasonable when signed, or if general contract law grounds apply (for example, fraud, undue influence, failure to disclose assets).

The Five Guiding Principles for Financial Provision

Before granting financial orders, the court applies a two-stage test:

1. Is the order justified by the statutory principles?
2. Is it reasonable having regard to the parties’ resources?

The main principles are:

1. Fair sharing of matrimonial/partnership property – usually equal sharing, unless special circumstances justify a different split.
2. Economic advantage and disadvantage – taking account of gains and losses (including non-financial contributions such as childcare and homemaking).
3. Economic burden of caring for children under 16 – ensuring this is fairly shared.
4. Period of adjustment – short-term support (up to three years) for a former spouse or civil partner who was substantially dependent on the other.
5. Avoiding serious financial hardship – as a last resort, further provision where one party would otherwise suffer serious hardship.

The court rarely looks at conduct or “fault” when dividing finances, unless it has clear financial consequences (for example, deliberate dissipation of assets).

Types of Court Orders the Court Can Make

To implement these principles, the court can make a range of orders, including:

• Transfer of property – for example, transferring the family home or a share of it.
• Capital sums – lump sum payments, sometimes payable in instalments or at a later date
• Periodical allowance – ongoing maintenance between spouses or civil partners, usually limited in duration and used sparingly due to the “clean break” approach
• Pension sharing or pension-related orders – sharing pension rights or earmarking lump sums linked to pensions or Pension Protection Fund compensation
• Incidental orders – for example, sale or valuation of property, resolving disputes about ownership, or regulating occupancy of the family home

Final Thoughts

Scottish family law provides a structured but flexible framework for ending marriages and civil partnerships, with a clear focus on fairness and financial independence. XK Family Law Solicitors in Aberdeen are experts in family law and can guide you through any aspect.

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