When a couple begins divorce proceedings in Scotland, emotions, practical worries and uncertainty can often make the process feel overwhelming. What many people do not realise is that Scottish divorce law includes specific provisions encouraging reconciliation where that might still be possible.
Section 2 of the Divorce (Scotland) Act 1976 sets out how the court deals with situations where there may be a realistic chance that the couple could reconcile.
1. The Court Must Pause Proceedings if Reconciliation Seems Possible
Under Section 2(1), the court has a legal duty to consider whether the couple might realistically reconcile. If, at any stage before granting decree of divorce, the court believes that there is a reasonable prospect of reconciliation, it must:
Pause the case for a period it considers appropriate.
This is not a refusal of divorce or a suggestion that the parties should reconcile. It simply means:
- The court believes there is at least some genuine possibility of saving the relationship; and
- It wishes to give the couple space to explore that option if they want to.
This continuation can happen more than once if the court thinks it is helpful.
2. Cohabiting During a Pause in the Case Will NOT Harm the Divorce Action
A key concern for many clients is:
“What happens if we try living together again? Will that affect my divorce?”
Section 2(1) offers reassurance.
If you briefly live together during a continued period of the action, it will NOT count against your current action for divorce.
This means:
- Trying again (for less than 6 months) does not reset the separation period.
- There is no penalty for attempting to reconcile.
- You can safely explore reconciliation without jeopardising your legal position.
This reflects the law’s general principle that people should not be discouraged from trying to repair their relationship.
3. Resuming Cohabitation After Adultery Does Not Automatically Mean Condonation
Section 2(2) deals with cases involving adultery. Normally, if a spouse knows about adultery and then continues to live with the other party, this may amount to condonation—forgiving the adultery—which can affect the ability to rely on it as a ground for divorce.
However, Section 2(2) modifies this:
Living together again after adultery does NOT automatically count as condonation, as long as it does not continue beyond three months.
In simple terms:
- You can try to rebuild things for up to three months
- Without losing your right to rely on adultery as a basis for divorce
This rule encourages couples to consider reconciliation without fear of losing important legal rights.
4. Short Periods of Cohabitation Do Not Break the Required Separation Periods
Divorce in Scotland can be granted on the basis of non-cohabitation for:
- One year with consent, or
- Two years without consent
(Divorce (Scotland) Act 1976, s.1(2)(d)–(e))
What if the couple briefly tries to live together again during the separation period?
The law says:
Short periods of cohabitation (up to a total of six months) do NOT break the separation period.
For example:
- If you live apart for 10 months,
- Then try living together for 2 months,
- Then separate again, your separation clock does not restart: you still count the earlier 10 months. So you would need to separate for a further 2 months (total 14 months, 12 months separated, 2 months together).
This applies as long as the trial cohabitation does not exceed six months in total.
This protects couples who want to test whether reconciliation is possible without derailing the separation timeline.
5. What Does This Mean for You?
Section 2 exists to protect couples who want to explore reconciliation but are worried about the legal consequences.
In practical terms, this means:
You can try again without jeopardising your divorce action.
The court may pause proceedings if reconciliation seems possible.
Trial cohabitation will not break your separation period.
Brief reconciliation does not normally affect your right to rely on adultery.
If reconciliation does not work out, you can continue with your divorce without having lost your ground or having to “start over”. But you start from where you left off.
6. Should You Attempt Reconciliation?
That is a deeply personal choice. The court will not pressure you to reconcile, and you are never required to do so. At XK Family Law, we can help you:
- Understand your rights.
- Understand the legal consequences of trying to reconcile.
- Make informed decisions about your future.
- Protect your legal position whether reconciliation is attempted or not.
Ready to discuss your case?
Email: info@xksolicitors.co.uk
Our website articles are not legal advice. We accept no responsibility for use of this information.
For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.