Divorce and Dissolution of Civil Partnerships in Scotland: A Simple Guide

Bringing a legal relationship to an end can feel overwhelming, particularly when you are unsure how the legal process works.

In Scotland, a marriage is legally ended by divorce, while a civil partnership is brought to an end through a process known as dissolution. Although the terminology is slightly different, the legal principles behind both processes are very similar.

Before a court will grant a divorce or dissolution, it must be satisfied that the relationship has broken down irretrievably and that there is no realistic prospect of reconciliation.

This guide explains the legal grounds that can be used to show that a marriage or civil partnership has come to an end, along with some practical points about how the process works in Scotland.

The Legal Framework

Divorce in Scotland is mainly governed by the Divorce (Scotland) Act 1976, while dissolution of civil partnerships is governed by the Civil Partnership Act 2004.

Civil partnerships were originally available only to same-sex couples. However, the Civil Partnership (Scotland) Act 2020 extended the law so that mixed-sex couples can now also enter into civil partnerships. This means civil partnerships in Scotland may now exist between couples of the same sex or different sexes.

Although the 2020 Act expanded who can form a civil partnership, the legal rules for dissolving a civil partnership remain broadly the same as those already set out in the earlier legislation.

In practice, the legal grounds used to demonstrate that a marriage or civil partnership has irretrievably broken down are largely identical.

Irretrievable Breakdown of the Relationship

Before granting a divorce or dissolution, the court must be satisfied that the relationship has irretrievably broken down.

This means the relationship has ended in such a way that the couple cannot reasonably continue living together as spouses or civil partners.

Scottish law recognises several situations that can demonstrate this type of breakdown.

Gender Recognition and Divorce or Dissolution

Changes to the law following the Gender Recognition Act 2004 introduced an additional situation in which divorce or dissolution may be sought.

If one party to a marriage or civil partnership has been issued with an interim gender recognition certificate, the other party may apply for divorce or dissolution.

Once the relationship has legally ended, the person may then apply for a full gender recognition certificate.

Grounds That Can Show Irretrievable Breakdown

There are four main situations recognised by law that can demonstrate irretrievable breakdown. One of these applies only to marriage.

1. Adultery (Marriage Only)

Adultery occurs when a married person has voluntary sexual intercourse with someone of the opposite sex who is not their spouse.  This ground applies only to marriage, not to civil partnerships.

Adultery can be used as a ground for divorce – if one spouse commits adultery, the other spouse may rely on this as a reason for seeking a divorce.

The person applying must show the marriage cannot continue – The court must be satisfied that, because of the adultery, the person seeking the divorce cannot reasonably be expected to continue living with their spouse.

Direct proof is not always required – Courts may accept evidence such as admissions, messages, or circumstances that strongly suggest the relationship took place.

Practical point

If a couple continues living together for more than six months after the adultery is discovered, the court may consider that the behaviour has been accepted. In that situation, adultery may no longer be available as a ground for divorce.

Because adultery does not apply to civil partnerships, similar circumstances in a civil partnership would usually be raised under unreasonable behaviour.

2. Unreasonable Behaviour

Unreasonable behaviour can be used as a ground for both divorce and dissolution of a civil partnership.

It applies where one spouse or civil partner has behaved in such a way that it would be unreasonable to expect the other person to continue living with them.

Examples might include:

Abusive or aggressive behaviour – This could involve physical violence, threats, or emotional abuse that makes living together unsafe or intolerable.

Controlling or manipulative conduct – For example, restricting access to money, isolating a partner from family or friends, or exercising excessive control over day-to-day decisions.

Substance misuse or harmful lifestyle choices – Serious problems involving alcohol or drugs that place significant strain on the relationship may sometimes amount to unreasonable behaviour.

Serious neglect of the relationship – This might involve a repeated disregard for the other person’s wellbeing, responsibilities within the household, or commitments within the relationship.

Practical point

The behaviour does not need to be extreme. The court simply needs to be satisfied that the conduct has made the relationship no longer workable for the person seeking the divorce or dissolution.

Because there is no minimum separation period, this ground can sometimes allow the process to begin more quickly.

3. One Year’s Non-Cohabitation (With Consent)

A divorce or dissolution can be granted if the couple have lived apart for at least one year and both parties agree that the relationship should end.

Non-cohabitation means living separately as a couple – The parties must no longer be living together as spouses or civil partners.

Both parties must agree – The other spouse or civil partner must confirm that they consent to the divorce or dissolution.

This option avoids assigning blame – Many couples prefer this approach because it allows the relationship to be legally ended without making allegations about behaviour.

Practical point

Where there are no children under the age of 16 and financial matters have been resolved, it may be possible to use the simplified divorce or dissolution procedure, which is generally quicker and less expensive.

4. Two Years’ Non-Cohabitation (Without Consent)

 If one party does not agree to the divorce or dissolution, the relationship can still be legally ended after two years of separation.

Consent is not required – Once the two-year period has passed, the court does not require agreement from the other spouse or civil partner.

Evidence of separation is needed – The court must be satisfied that the couple have genuinely lived apart for the required period.

Practical point

This ground is often used where one person does not cooperate with the process or does not wish the relationship to end.

What Counts as Living Apart?

Couples can be considered to be living apart even if they remain in the same home, provided the relationship has ended in practice.

For example:

Living separate lives in the same property – Couples sometimes remain in the same home for financial or practical reasons but no longer function as a couple.

Sleeping in separate rooms – Separate sleeping arrangements may be one indicator that the relationship has ended.

No longer sharing daily life – This may involve separate meals, different social lives, and independent financial arrangements.

The key question is whether the couple are still living together as partners, rather than simply sharing the same address.

How the Grounds Affect the Process

The ground relied upon can affect how the divorce or dissolution proceeds.

For example:

Behaviour grounds may allow the process to start immediately – There is no requirement to wait for a separation period.

Separation grounds require a waiting period – Couples must wait either one year or two years, depending on whether both parties agree.

Simplified procedures may be available – Where there are no children under 16 and financial matters are resolved, a simplified process may be used.

Ordinary court procedure may be needed in more complex cases – If there are disputes about finances, property, or arrangements for children, the case may proceed through the standard court process.

A solicitor can help determine which option is most appropriate.

Evidence and Practical Considerations

When applying for divorce or dissolution, the court will normally require information confirming the chosen ground.

This may include:

Confirmation of separation dates – This helps demonstrate that the required period of non-cohabitation has passed.

Written consent from the other party – This is needed when relying on the one-year separation ground.

Statements describing behaviour or circumstances – Where behaviour or adultery is relied upon, a short explanation of the relevant events will usually be required.

In many cases, particularly where both parties agree that the relationship has ended, the process is largely administrative.

When to Seek Legal Advice

Although some divorces and dissolutions are relatively straightforward, legal advice can be helpful where:

• there are disputes about finances or property
• arrangements for children need to be agreed
• one party does not cooperate
• there is uncertainty about which legal ground should be used

A solicitor can also help ensure that financial matters are properly resolved before the relationship is legally ended, which can help prevent disputes later.

Final Thoughts

Scottish law provides a clear framework for ending both marriages and civil partnerships when a relationship has broken down.

The introduction of the Civil Partnership (Scotland) Act 2020 means civil partnerships are now available to couples of both the same sex and different sexes, but the legal process for dissolving a civil partnership remains broadly similar to divorce.

Understanding the available grounds for divorce or dissolution can help make the process feel less confusing and allow people to choose the most suitable way forward.

Where possible, reaching agreement about separation and financial matters can make the process quicker, less stressful, and more cost-effective for everyone involved.

If you would like to discuss your situation confidentially, please get in touch. Early advice often helps avoid unnecessary complications later. For tailored legal guidance, please contact our experienced Family Law solicitors on 01259 723 201 or email help@randa-fa.co.uk and we would be delighted to assist.