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This information applies to Scotland
Ending a marriage
When your marriage comes to an end, you will probably have a number of things to sort out with your partner, which may include childcare, money, housing, and other property and possessions.
You and/or your partner could decide:-
If you're not a British Citizen
If you're not a British Citizen and your marriage ends, this could affect your right to stay in the UK.
If you're not a British Citizen and you are thinking of ending your marriage, you should get advice from an experienced immigration adviser. Your local Citizens Advice Bureau should be able to help. To search for details of your nearest CAB, including those that can give advice by e-mail, click on  nearest CAB.
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Who to inform when your marriage ends
If you and your partner are separating, you may need to inform:-
- your landlord or housing office
- your housing benefit office
- your council tax office
- your mortgage lender
- gas, electricity and telephone companies
- your benefits office
- your tax office, particularly if you're getting tax credits
- current school and future school if you have children and they are moving
- your bank or any other financial institution if you have a joint account. It may be advisable for you to freeze the account to prevent your partner withdrawing some or all of the money
- hire purchase or credit companies
- insurance companies, particularly if you have joint policies
- the post office, if you want mail redirected
- your doctor, dentist and child health clinic.
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Separating informally
If you and your partner are married, you can separate by an informal arrangement.You will need to inform some or all of the people listed under heading Who to inform when your marriage ends. You may have a legal responsibility to tell:-
- your benefits office if you are getting a welfare benefit such as Jobseeker's Allowance, Income-related Employment and SUpport Allowance or Income Support
- HM Revenue and Customs if you are getting tax credits
- your local council if you pay council tax or you get Housing Benefit or Council Tax Benefit.
If you and your partner agree, you can make arrangements about children, money, housing and other property without going to court. However, any informal arrangement made when you separate may affect future decisions if you do go to court. If there are children the Child Support Agency may get involved (see under heading Child Support Agency).
If you do decide later to divorce and the court is involved it can change an arrangement made informally by a couple that it considers to be unreasonable or, in the case of a child, if it thinks the arrangement is not in the child's best interests.
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Separating with a separation agreement
A separation agreement is a written agreement between a couple who intend to stop living together. It sets out how they wish to sort out financial arrangements, property and arrangements for the children. When your agreement includes financial matters it should be made with the help of a solicitor. Examples of what you might want to include in an agreement are:-
- to live separately. This stops both partners from having to live together
- not to molest, annoy or disturb the other partner
- to provide financial support (maintenance) for the other partner. A separation agreement would normally say that maintenance will stop if the partner starts living together with a different partner. Any agreement not to apply to court in the future for financial support does not count legally
- to provide financial support (maintenance) for any children of the relationship. Any agreement not to apply to a court or to the Child Support Agency in the future is not valid legally
- who the children should live and have contact with.
The advantage of a written agreement is that it is easier to make sure you both understand what has been agreed. It also means that either partner can go to court to change the agreement in the future. The court may only change what it considers to be unfair or unreasonable. It is advisable to consult a solicitor when drawing up a separation agreement, but you should work out in advance the general areas you want to cover. You may find it helpful to use the guidance on family breakdown produced by the Scottish Government at www.scotland.gov.uk to do this.
If you can reduce the time it takes to draw up the agreement with the solicitor it could keep legal costs down. You may get help with your legal costs.
For more information about help with legal costs, see Help with legal costs.
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Judicial separation
A judicial separation is a court order which stops the obligation of the partners of a marriage having to live together. It is quite rare to get a judicial separation, but it can be used by couples who have a moral or religious objection to divorce. The order does not end the marriage so neither partner is free to marry again (or enter into a civil partnership). The order does not change each partner's rights to stay in the family home. If you want your partner to leave, after a judicial separation, and s/he is not willing to, you have to go to court for an exclusion order.
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Decree of nullity
For a marriage to be legal, it must meet certain conditions. For example, you and your partner must both be over 16 when you marry and you must not already be a civil partner or married to someone else. If your marriage does not meet one of these conditions, the court can end the marriage by granting an annulment.
For more information about conditions you must meet to marry, see Getting married.
When the court grants an annulment, it may say that your marriage is:-
- void. This means that, in effect, the marriage never existed; or
- voidable. This means the marriage was legal at the time it was registered but it isn't legal any longer.
Whether the court will say your marriage is void or voidable depends on the circumstances.
If you have children, the court will not grant an annulment unless it is satisfied about the arrangements for the children. For more about children, see under heading Children at the end of a marriage.
You will need to get legal advice if you want to apply for an annulment. You might get financial help to pay for your legal costs.
For more information about financial help with legal costs, see Help with legal costs.
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Divorce
You can only get a divorce in Scotland if you satisfy certain rules about where you both live. The rules are complicated and you should get more advice from a Citizens Advice Bureau. In order to get divorced the marriage must be recognised as valid in the United Kingdom.
There are two ways to get a divorce:-
- the simplified procedure, often called DIY divorce; or
- the ordinary procedure.
DIY divorce
If you have no children under 16 and can agree about how to deal with your money and property you can use a simplified procedure to get a divorce. You don't have to use a solicitor so you can keep the costs of the divorce low.
You can use forms to apply for a DIY divorce from your local sheriff court or the Scottish Court Service website at www.scotcourts.gov.uk. You may find it helpful to get more advice before you apply. You can get more comprehensive advice from your local CAB.
Ordinary divorce procedure
If you have children under 16 you have to use the ordinary procedure to get a divorce.
If you can agree about the grounds for divorce and what to do about the children, money and property the divorce can go to court as an undefended case.
If you cannot agree about the grounds for the divorce, or issues about the children, money or property the divorce application will go to court as a defended case.
Undefended divorce
In an undefended divorce, it will be advisable to go to a solicitor for general advice before you apply for a divorce. A solicitor can be useful for advice on whether there are sufficient grounds, which grounds are appropriate and what evidence may be needed. The solicitor will help you to draw up an agreement that can be lodged in court. If there are disputes about children, property or money which you and your partner can't resolve, you will have to consult a solicitor or mediator to resolve the problems before the case can go to court as an undefended case.
Defended divorce
A defended divorce will normally be heard in the sheriff court, although the case can be transferred to the Court of Session if the issues that have to be resolved are complicated or there is a lot of money or property to make decisions about.
In a defended divorce, both partners should always consult a solicitor. Legal fees can be very high if there are long disputes. It is advisable wherever possible for you both to try to come to an agreement about as much as possible before going to court.
What do you have to prove to get a divorce
There are two grounds for divorce:-
If you are getting divorced on the grounds that your marriage has broken down irretrievably you or your partner will have to show that the marriage no longer exists on a permanent basis. Legally, this is called an irretrievable breakdown of the marriage. The irretrievable breakdown of the marriage can be proved in one of the following ways:-
- your partner has behaved unreasonably
- adultery
- you've lived apart for at least one year and you both agree to the divorce
- you've lived apart for at least two years but one of you doesn’t agree to the divorce.
Adultery
A court may grant a divorce if one of you has had a sexual relationship with someone else of the opposite sex (committed adultery). If you or your partner has had a sexual relationship with someone of the same sex it is not technically adultery but is likely to be seen as evidence of irretrievable breakdown.
The court will need details of the adultery, for example, dates and places when it happened. The court will only grant the divorce if it is satisfied that the marriage has irretrievably broken down and the other partner could no longer live with the partner who has committed adultery. There is no minimum period that you have to be married before a divorce action based on adultery may be started.
If you both agree to the divorce, the court will usually only need statements and details of the adulterous sexual relationship. If one of you doesn't agree to the divorce, proof will be necessary and this may be difficult and expensive to get.
Unreasonable behaviour
A court may grant a divorce if you or your partner has behaved so badly that the other can no longer bear living together. Unreasonable behaviour can include mental or physical cruelty, including violence or abuse, and less obvious things like dominating a partner, not letting the partner leave the house or speak to neighbours and friends or refusing to pay for housekeeping.
If one of you doesn't agree to the divorce, evidence and details will be needed, for example, evidence from witnesses such as friends or medical evidence.
If your partner has been violent towards you, you should get specialist help.
For more information about help you can get if your partner has been violent, see Domestic violence.
Living apart for one year
If you have lived apart (been separated) for one year and you both agree to a divorce, a court will accept this as proof of irretrievable breakdown of the marriage. The one year apart will still be considered as continuous even if you have actually lived together for up to six months within it but the six months does not count towards the one year. For example if a couple separates in January, gets back together in April but splits again in September the first three months of separation still count towards the year apart.
Living apart for two years
If you have lived apart (been separated) for two years continuously, you can apply for a divorce without your partner's agreement. A court will usually agree to a divorce if you have been separated for two years.
Applying for an interim gender recognition certificate
A transsexual person who has an interim gender recognition certificate can end her/his marriage on this ground. S/he must apply to a Gender Recognition Panel.
For more information see www.grp.gov.uk
Applying for a divorce
The partner who is applying for the divorce is called the pursuer. The other partner is the defender.
If you want to start divorce proceedings you will need to get the forms from the sheriff court or the Scottish Courts Service website at www.scotcourts.gov.uk for a DIY divorce.
You have to use a solicitor to start a divorce action under the ordinary procedure.
If you are applying for a divorce and want help to fill in the forms, you should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
What the court will do
If you both agree to the divorce
If you both agree to the divorce, the court will look at the paperwork that has been submitted. Under the ordinary procedure it will be submitted by the solicitor and is likely to include a summons (or initial writ) and the sworn statements (affidavits) made by the pursuer and any witnesses.
If you have children, the court will need to be satisfied that you have made satisfactory arrangements for them. The court may want to discuss the arrangements and possibly meet the children if they are old enough. A divorce which you both agree to can take up to six months if there are no children or money issues involved. It can take longer if children are involved and the court is not satisfied with the arrangements being made for them. For more information about arrangements for the children, see under heading Children at the end of a marriage.
When the court agrees to grant the divorce it issues a divorce certificate called an extract decree of divorce.
If one of you doesn't agree to the divorce
If you start divorce proceedings and your partner doesn't agree about the grounds for divorce or arrangements for children or property s/he will have to send a Notice of Intention to defend to the court when s/he first receives the initial writ from the court. S/he has to say why s/he doesn't agree that the marriage has broken down. There is likely to be a court hearing for a judge to decide whether the marriage has broken down irretrievably.
Even if the court agrees that the marriage has broken down, it has to be satisfied that you have made satisfactory arrangements for any children. They may want to discuss arrangements about the children and possibly meet them if they are old enough. For more information about arrangements for the children, see under heading Children at the end of a marriage.
If the court agrees to grant the divorce, they will issue a divorce certificate called an extract decree of divorce.
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Help with the legal costs of a divorce
You may be able to get help with legal costs. Whether or not you get it depends on both you and your partner's income, capital and how reasonable the Scottish Legal Aid Board thinks it is to give you help.
If you do get help, in some cases you might have to pay some of the legal costs back, out of money or property you are given when the divorce comes through. This is called clawback. Make sure your solicitor explains clawback to you before you start the case.
For more information about help with legal costs, see Help with legal costs.
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Children at the end of a marriage
When you stop living together, you'll have to decide who will look after the children.
You may be able to make arrangements between yourselves about where the children are to live and what contact should take place with the other parent. However, if this is not possible, the court can make the decisions about the children.
The Scottish Government has produced a parenting pack that explores all the issues. It is available at www.scotland.gov.uk.
Many couples split up but never get divorced. If you separate informally, you may not ever need to go to court. You can make arrangements for the children that may last until the children are grown up. But if it is not possible to sort out the arrangements, the court can make decisions.
If you are getting a divorce, the court will not grant the divorce until it has looked at the arrangements for the children. The court is primarily concerned about the children’s welfare. You'll have to give the names of all dependent children of the family. Children under 16 are usually thought of as dependent. The duty to provide for (maintain) a child usually lasts until a child is 18 or 19 if in full-time non-advanced education or if in full time further education up to 25. The court will want details of children who are the children of both partners together, adopted children, step-children and any children who have been treated as part of the family. It doesn't include foster children.
You have to give details of how the children will be looked after. You'll need to say where the children will live and who they will live with, as well as the financial arrangements for their support. The court's main concern will be to decide what's in the best interests of the children. If the court is satisfied that the arrangements made by the parents for the children are in their best interests it will not change them. It will only make decisions where this is necessary to sort out a disagreement about arrangements. Decisions made by the court are called orders.
You could get help from a mediator to make arrangements about the children, see under heading Family mediation.
If you are thinking of going to court about arrangements for your children, you should consult an experienced adviser, for example, a family law solicitor or go to a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
What orders can a court make about children
A court will only make an order concerning children if it feels it is in the best interests of the children to do so. A court can make orders about:-
- who the child should live with (a residence order)
- who the child should have contact with and what sort of contact it should be (a contact order)
- preventing something happening, for example, a name change
- specific issues.
Residence orders
The court can make a residence order in favour of:-
- one parent. This means that the child must live with that parent
- both parents. One residence order can be made for both parents, even if they are not living together. The order will say how much time the child will live with each parent
- a third person, for example, a grandparent.
Contact orders
The court will normally expect you and your partner to make your own arrangements about maintaining contact with your children. The court will only make a court order if you can't agree.
The contact order may include conditions. It may also say what sort of contact you can have, for example, visiting, telephoning or writing letters. Orders can also be made to allow contact between a child and other relatives or friends.
Preventing something from happening
A court can make an order called an interdict to prevent one parent from doing something that the court thinks is not in the child’s best interests.
Specific issues
A court can make an order about a specific issue that a child's parents cannot agree about, for example, religious education.
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Financial arrangements at the end of a marriage
Until you are divorced you and your spouse have a legal obligation to provide financial support for each other.
You may need help to agree financial arrangements, see under heading Family mediation.
For the spouses
Agreeing financial support for each spouse
If you both agree to financial support, this is called a voluntary agreement. It can be written down or it could be a verbal agreement.
You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills or pay for the children's clothing and holidays.
Before you agree on a package of financial support, you should get legal advice about whether it is an appropriate arrangement. It may be useful to have an agreement written up by a solicitor in case of future dispute. You might get help with the costs of making a voluntary agreement.
For more information about help with legal costs, see Help with legal costs.
Court orders for money from a former spouse
You can apply for a court order for financial support at the end of a marriage. The court will consider all financial circumstances of both partners, including pension arrangements.
A court can make an order for regular payments to be made or for a one-off lump sum. It can also make an order about pension arrangements.
You might get help with legal costs when you apply to court for financial support. However, you might have to pay some of the legal costs back, out of money or property you are given by the court order. This is called clawback. Make sure your solicitor explains clawback properly to you before you start court action. Where pension arrangements are involved, you should also consider getting specialist financial advice.
For more information about help with legal costs, see Help with legal costs.
For children
Child Support Agency (CSA)
Parents who agree can make a voluntary arrangement for money for children. If you make an agreement in writing with the help of a solicitor, the agreement can be legally enforceable.
If the children are living with you, you can apply to the Child Support Agency and do an assessment for maintenance.
The issue of money for children is complex and you may find it helpful to get further advice from an experienced adviser, for example, a family law solicitor or a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
For more information about getting financial support for your children through the CSA, see Child support for parents who live apart.
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Housing rights at the end of a marriage
At the end of your marriage, the court can give you or your partner rights to the home or can take rights to occupy the home away from either of you. As long as you are both still living in the home, whether it is owned or rented, you both have rights to live in it. If one partner has been violent there are special orders the court can make to change the violent partner's rights to the home and exclude her/him.
For more information about help you can get if your partner has been violent to you, see Domestic violence.
If one of you is a sole owner or a sole tenant and the other partner leaves the home, s/he may have to go to court to enforce her/his rights to get back in.
If you are thinking of going to court about your housing rights after the breakdown of your marriage, you should consult an experienced adviser, for example, a family law solicitor or a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
If you and your partner are owner-occupiers the value of the family home is likely to be an issue within the divorce settlement. You should see an experienced adviser about decisions that can be made about the family home.
Anyone who wants to protect their rights should consult an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
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Family mediation
Family mediation is a way of helping couples who are separating or divorcing to sort out disagreements and reach decisions about things like money, property and looking after the children. To use this service, you both have to be willing to go along voluntarily. Any decisions you make there will not be legally binding but may help you to start drawing up an agreement.
A couple can use family mediation services as soon as possible after they have decided their relationship is ending and they feel able to discuss any disputes. Mediation can be helpful before legal proceedings begin, to encourage co-operation between the couple and to prevent disputes from getting worse and agreement becoming harder to reach in the future. Family mediation can also be used after a separation or divorce if new issues arise or there are outstanding issues to be resolved.
For more information and a national map of local services, see www.familymediationscotland.org.uk.
Some local solicitors may be skilled in family mediation. You can check what is available in your area by contacting The Law Society of Scotland on 0131 226 7411 or see www.lawscot.org.uk.
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