The law relating to divorce in Scotland differs greatly to that in England.

In June 2020 the Divorce, Dissolution and Separation Bill finished its passage through the House of Commons. The aim of this new piece of legislation is to reduce the impact that allegations of blame can have on a couple and their children.

English law

Presently, in England, one spouse must make accusations as to the conduct of the other spouse in relation to either his or her behaviour, having committed adultery or deserting them. The alternative is to wait until the couple have been separated for 2 years (if both spouses agree to divorce) or 5 years (if one spouse does not agree).

The new law will remove the element of blame by enabling either spouse, or both spouses jointly, to make a statement of irretrievable breakdown. That statement will be regarded as conclusive evidence to the court that the marriage has irretrievably broken down. There will be a 6-month time period imposed from the date the application/statement of irretrievable breakdown to the court is made to the date the divorce is granted. The point of this is to allow time for the parties to think about their decision and consider reconciliation.

Scots Law

In Scotland, until 2006, irretrievable breakdown of marriage had been the sole ground of divorce. In 2006 the law changed so that one other ground of divorce was included, this being the issuing of a gender recognition certificate to either spouse. The court will only grant divorce on the basis of irretrievable breakdown if it can be established that one spouse has committed adultery or unreasonable behaviour. The alternative is to wait until the couple have been separated for 1 year (if both spouses agree to divorce) or 2 years (if one spouse does not agree).

For the past 14 years the law in Scotland has utilised an approach to divorce which has sought to minimise conflict with the non-fault periods of separation required being significantly less than those in England. Each year the vast majority of Scottish divorces are raised on the basis of 2 years' separation (around 68%). Around 26% proceed on the basis of 1 year of separation with unreasonable behaviour accounting for around 5% and adultery the remaining 1%. It is clear, and to their credit, that Scottish family law solicitors, their clients and the Courts have responded well to utilising these methods of divorce which reduce conflict and it is hoped that the reform to English law will have a similar effect.

For more information and clarity on the divorce process under Scots Law please see our very helpful Divorce Route-map:-


Sarah Lilley