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Ending a marriage

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 Reduction.

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 Maintenance Service may get involved (see under heading Child Maintenance Service).

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 Maintenance Service 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 as listed above. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

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

Scottish Court Service

www.scotcourts.gov.uk

Includes forms and guide for Scottish Courts

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. There is also some useful guidance on DIY divorce proceedings on the Scottish Court 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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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 or collaborative law practitioner to make arrangements about the children, see under heading Family mediation or collaboration.

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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Household goods and other possessions

If a couple split up and they disagree about who owns household goods and possessions acquired during the marriage it is presumed they are owned jointly. Gifts and inherited goods belong to the person who received them. Goods acquired before the marriage belong to the person who acquired them. If you cannot agree about who owns all the goods and possessions you may need help. It may be useful to ask a mediator or collaborative law practitioner for help as going to court is expensive. If you are having to go to court about other financial matters any disputes about valuable goods may have to be dealt with at the same time. You should ask your solicitor about disputes about household goods and possessions.

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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 or collaboration.

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

Agreeing financial support for children

If you both agree to financial support, this is called a voluntary agreement or family-based arrangement. 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.

If you need advice on the options available for arranging child maintenance and for advice on how to set up a voluntary child maintenance agreement, you can contact the Child Maintenance Options Service at www.cmoptions.org.

The Child Maintenance Options Service can help you:-

  • understand the options for making a child maintenance agreement
  • check that any existing arrangement is right for you and your child
  • estimate how much child maintenance you would pay or get
  • refer you to other organisations for help and advice.

Before you agree on a package of financial support, it may be useful to 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.

For more information about family-based arrangements, see How to make a family-based child maintenance arrangement.

Child Maintenance Service (CMS)

If your marriage has ended and the children are living with you, you can use the Child Maintenance Service (CMS) to get financial support for your children. However you don't have to use the CMS if you don't want to.

The CMS is the government child maintenance service that arranges maintenance for children under the 2012 scheme.

For more information about getting financial support for your children, see Child maintenance - where to start.

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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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Housing costs at the end of a marriage

Paying the mortgage when a marriage breaks down

If a mortgage is in joint names, both people are jointly and solely liable for the mortgage payments. This is known as joint and several liability.

This means that if one of you leaves and stops contributing to the mortgage payments, the mortgage lender can ask the other person to pay the full amount.

If a mortgage is in one person's name, only that person is liable for the mortgage payments.

However, if your name is not on the mortgage and you want to stay in your home, you will need to keep up the mortgage payments. If your ex-partner is no longer making any payments, you will need to pay the full amount, otherwise the mortgage lender can start action to repossess your home. Get in touch with the lender and negotiate what payments might be accepted to stay in the home. You have the right to do this because you are married.

Paying the rent when a marriage breaks down

Joint tenancy

A joint tenancy means that all of the tenants named on the tenancy agreement are jointly and solely liable for the rent. This is known as joint and several liability.

This means that if the other joint tenant leaves and stops making payments towards the rent, the landlord can ask you to pay the full amount. That's why it's important to keep paying the full amount, otherwise you may get evicted.

In some cases, a joint tenant can end the joint tenancy by giving notice to the landlord. If you want to stay in the property you'll need to make sure this doesn't happen or if it has happened, you can negotiate with the landlord. Your landlord may be able to give you a new tenancy in your name only. If you are in this situation you should get advice.

You can get advice from your local CAB. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

Sole tenancy which is not in your name

If a tenancy is in the name of your married partner, they will be liable to pay the rent for as long as the tenancy continues. If the rent isn't paid and arrears build up, the landlord may take action to evict you.

If your ex-partner is no longer paying any rent, you should negotiate with the landlord to pay the rent because you have the right to do so. If the landlord won't accept the rent you should get advice straightaway. If there are arrears you should also get advice about how to pay these off if you want to stay in the home.

You can get advice from your local CAB. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.

Benefits and housing costs

If you stay in your home after your partner has left, depending on your income, you may be able to get Housing Benefit to help pay the rent. If there is a mortgage, you might get help with the mortgage interest.

For more information about Housing Benefit see, Help with your rent – Housing Benefit.

For more information about help with mortgage interest see, Help with mortgage costs if you're not working.

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Family mediation or collaboration

Family mediation and collaborative practice are two ways 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, without having to go to court. To use either of these options, 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. Mediation involves you working together with your partner and a trained, impartial mediator, to reach agreement. Collaborative practice involves you and your partner meeting together with your solicitors, to discuss the issues and try to reach agreement.

A couple can use family mediation or collaborative practice as soon as possible after they have decided their relationship is ending and they feel able to discuss any disputes. Mediation and collaborative practice 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. They can also be used after a separation or divorce if new issues arise or there are outstanding issues to be resolved.

For more information about mediation and a national map of local services, see www.relationships-scotland.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.

For more information about collaborative family law practice, see www.consensus-scotland.com.

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Further information

You can get a summary of this information about ending a marriage in our fact sheet, see Getting divorced in Scotland [Adobe Acrobat Document 220 KB].

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