Do I Need to Go to Court for a Divorce in Scotland?

When a marriage comes to an end, one of the first questions many people have is whether getting divorced means having to go to court.

The short answer is that every divorce in Scotland must ultimately be granted by a court. However, that does not mean everyone has to attend a court hearing or become involved in a contested legal dispute.

For some couples, a DIY divorce in Scotland, more formally known as the simplified divorce procedure, can provide a relatively straightforward way to bring a marriage to an end. For others, an ordinary divorce action will be required, where there are children under 16, unresolved financial matters or other issues that still need to be addressed.

Understanding the difference can help you know what to expect and what steps may need to be taken.

Before you apply for a divorce you need to consider issues such as children, property, pensions and other financial matters. Obtaining legal advice from experienced family law solicitors can help you understand the process and any wider implications before making a divorce application.

What Are the Grounds for Divorce in Scotland?

In Scotland, there are 2 grounds of divorce (1) that an interim gender recognition certificate has been issued to either party after the date of the marriage and (2) that the marriage has broken down irretrievably.  

One of the most common ways of establishing that a marriage has broken down irretrievably  is through a period of separation.

You can generally seek a divorce after:

• one year of separation, provided your spouse consents to the divorce; or
• two years of separation, when your spouse's consent is not required.

It is also possible to establish irretrievable breakdown through adultery or where your spouse has behaved in such a way that  you cannot reasonably be expected to continue living with your them.

If you are unsure about the grounds for divorce in Scotland or which route may apply to your circumstances, seeking guidance from a solicitor can help you understand the options available.

You can find more information about Drummond Miller's approach to separation and divorce in Scotland.

Do I Have to Go to Court to Get Divorced in Scotland?

Not necessarily.

Although the court must formally grant the divorce, many divorces can be completed without either spouse attending court in person.

Divorce proceedings in Scotland are dealt with through the Scottish Courts. Depending on the circumstances and the type of action being raised, this will usually involve the appropriate Sheriff Court, although particular cases may involve the Court of Session.

There are broadly two procedures which are:

• the simplified divorce procedure
• the ordinary divorce procedure

The procedure that applies will depend on your individual circumstances.

The simplified procedure is intended for relatively straightforward divorces where certain conditions are met. If those conditions are not satisfied, an ordinary divorce action will usually be required.

The Scottish Courts and Tribunals Service provides court forms and procedural information for people using the simplified divorce procedure, although this should not be treated as a substitute for individual legal advice.

What Is a DIY Divorce in Scotland?

A DIY divorce in Scotland is the informal name often used for the simplified divorce procedure.

It is designed for cases where the legal and financial issues arising from the separation have already been resolved and where there are no children of the marriage under the age of 16 years.

Broadly, the simplified divorce procedure may be available where:

• there are no children of the marriage under the age of 16
• there are no outstanding financial matters which need to be dealt with through the divorce proceedings
• the divorce is being sought using an applicable period of separation

The appropriate application form must be completed and the required formalities followed. Supporting documentation, including the marriage certificate, will also be required.

The simplified divorce application needs to be formally witnessed or sworn before an authorised person such as a Notary Public or Justice of the Peace.

Provided the legal requirements are met and the paperwork is in order, the court will grant the divorce without either spouse having to attend a hearing.

Although the term “DIY divorce” can make the process sound very simple, it is important to understand the wider consequences of ending a marriage before proceeding.

These simplified procedures are only appropriate where the qualifying conditions are met. A straightforward court procedure does not necessarily mean that the wider legal consequences of divorce are straightforward.

Where Do I Apply for Divorce in Scotland?

Before a Scottish court can deal with a divorce application, it must have jurisdiction to do so.

Jurisdiction can depend on factors including where either spouse is habitually resident or domiciled. In some circumstances, questions may arise about whether a person is habitually resident in Scotland or domiciled in Scotland.

These rules can become more complicated where one or both spouses live outside Scotland, have recently moved country or have connections with more than one jurisdiction.

If there is any uncertainty about whether the Scottish Courts can deal with the divorce, it is sensible to seek legal advice before submitting an application form or raising an action.

What Happens in an Ordinary Divorce Procedure?

Where the requirements for a simplified divorce are not met, the divorce will generally proceed using the ordinary procedure.

An ordinary divorce action is usually started by lodging the appropriate court documents. In Sheriff Court proceedings, this will involve an initial writ, which sets out the orders being sought and the basis upon which the divorce is requested.

The court procedure will depend on whether the case is defended or undefended and whether there are other matters requiring determination, such as financial provision or arrangements concerning children.

Where everything has been agreed, the process may be considerably more straightforward than people expect. If matters remain disputed, additional court procedure may be required.

Once the court is satisfied that the legal requirements have been met, it can grant a Decree of Divorce, formally bringing the marriage to an end.

Can I Get a DIY Divorce if We Still Have Finances to Sort Out?

Financial matters should be considered carefully before any divorce is finalised.
Depending on your circumstances, financial issues arising from separation may include:

• the family home
• savings and investments
• pensions
• debts
• other matrimonial property
• ongoing financial support

A divorce financial settlement in Scotland can often be agreed between spouses without the need for a contested court process. Where an agreement is reached, it may be recorded formally in a legally binding separation agreement, often known as a Minute of Agreement.

Where agreement cannot be reached, financial orders may need to be sought through the ordinary divorce procedure.

Questions about financial provision can be an important part of separation and divorce, particularly where there is property, pension provision, savings or other significant matrimonial property to consider.

This is particularly relevant when considering a DIY divorce. The simplified procedure is intended for cases where there are no outstanding financial matters requiring determination within the divorce.

Finalising a divorce can have important legal consequences, so it is sensible to understand the financial position before applying.

Drummond Miller's Separation and Divorce team can provide information about the legal issues that may arise when a marriage ends.

Does an Ordinary Divorce Mean Going to Court for a Hearing?

Not always.

The phrase “court action” can understandably sound as though both spouses will need to attend court, give evidence and take part in a contested hearing.

In practice, many ordinary divorces are undefended.

Where both spouses agree that the marriage should end and other issues have already been resolved, the divorce may proceed through the court without the need for a full evidential hearing.

A contested hearing may become necessary where there is disagreement about matters such as:      

• finances
• arrangements involving children
• the basis upon which divorce is being sought
• other issues requiring a decision by the court

Every situation is different, and the procedure will depend on the circumstances of the individual family.

Experienced divorce lawyers can explain what the relevant court procedure may involve and whether a hearing is likely to be required.

What About Civil Partnerships?

Divorce is the legal process used to end a marriage. A civil partner seeking to bring a civil partnership to an end will instead follow the legal process for civil partnership dissolution.

Although there can be similarities between divorce and dissolution, they are distinct legal processes. Anyone considering ending a civil partnership should seek advice about the procedure and legal issues that apply to their particular circumstances.

Frequently Asked Questions About DIY Divorce in Scotland

What happens if my spouse will not agree to a divorce?
After two years of separation, divorce may generally be sought without the other spouse's consent. Other grounds for divorce may also be relevant depending on the particular circumstances.

Can I get a DIY divorce if I have children under 16?
No. Where there are children of the marriage under 16, the simplified divorce procedure is not available. An ordinary divorce action is required.

Do I need a solicitor for a DIY divorce in Scotland?
The simplified procedure is designed to allow eligible individuals to make an application without necessarily instructing a solicitor to conduct the divorce. However, it can still be important to obtain legal advice beforehand, particularly where there may be financial, pension or property issues to consider.

Do I have to appear in court?
Not necessarily. A simplified divorce can normally be dealt with without attending court, and many undefended ordinary divorces can also proceed without the spouses appearing personally at a hearing. A court hearing may be necessary where issues are contested or where the court requires further evidence.

Do I submit a DIY divorce application to the Sheriff Court?
Simplified divorce applications are dealt with through the Scottish court system, and the appropriate court will depend on the circumstances and applicable jurisdictional rules. The Scottish Courts and Tribunals Service provides current application forms and guidance.

What is an initial writ in a Scottish divorce?
An initial writ is a formal court document used to begin certain ordinary Sheriff Court proceedings. In an ordinary divorce action, it can set out the basis for the divorce and the orders being sought.

What is a Decree of Divorce?
A Decree of Divorce is the formal order granted by the court that legally ends the marriage.

Can mediation help during separation?
Family mediation can sometimes help separating couples discuss matters such as arrangements for children or other practical issues. Collaborative practice can also provide a structured way for couples and their solicitors to work towards agreement without relying on contested court proceedings. Neither approach will be suitable in every case.

What if my spouse or I live outside Scotland?
International or cross-border circumstances can affect which court has jurisdiction. Questions may arise about whether either person is habitually resident or domiciled in Scotland. Legal advice should be sought where there is uncertainty about the appropriate jurisdiction.

Is divorce the same as civil partnership dissolution?
No. Divorce ends a marriage, while civil partnership dissolution ends a civil partnership. Although there may be similarities in the procedures, the legal relationship being brought to an end is different.

The end of a marriage can bring legal, financial and practical questions at a time when there is already a great deal to think about.

A DIY divorce in Scotland may be suitable where the circumstances are straightforward and all the relevant conditions are met. Where there are children under 16, unresolved finances or other more complex issues, an ordinary divorce action will generally be required.

Whichever route applies, understanding the implications before the divorce is finalised can help you make informed decisions about what comes next.

At Drummond Miller, our experienced separation and divorce solicitors can explain the process, help you understand the issues arising from separation and provide support throughout the next stage of your journey.

Get in touch with our Family law Team.