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Divorce and civil partnership dissolution - a quick guide to family law in England/Wales and Scotland

Different laws and processes apply to divorce and civil partnership dissolution in the legal jurisdictions of England and Wales, and Scotland.

Since the Supreme Court decision of Villiers, considerable attention has been given to the differing legal jurisdictions in England and Wales, and in Scotland.

Different laws and processes apply in each jurisdiction, and below we highlight some of the main differences for divorce and civil partnership dissolution.

Grounds for divorce/dissolution

In both jurisdictions, there is only one ground of divorce/dissolution and that is that the marriage has broken down irretrievably.

However, irretrievable breakdown has to be established by a particular set of circumstances, which differ depending on whether the proceedings are issued in England/Wales or Scotland.

  England/Wales Scotland
Adultery Yes Yes
Behaviour Yes Yes
Desertion Yes No
1 year's separation No Yes – with consent
2 years' separation Yes – with consent Yes – no consent required
5 years' separation Yes – no consent required N/A

Scotland has had a no fault basis for divorce for many years since the Divorce (Scotland) Act 1976 was introduced.

England and Wales are introducing a no-fault divorce law which, together with other changes to the process and the grounds for divorce, will remove the requirements of adultery and behaviour. The Divorce, Dissolution and Separation Act 2020 received Royal Assent in the summer of 2020 and is anticipated to become law in/around autumn 2021.

Jurisdiction for divorce/dissolution

To bring proceedings, it is necessary to establish jurisdiction. This tends to be based on concepts of habitual residence or domicile.

In summary, the grounds between being able to issue in each jurisdiction are as follows:

  England/Wales Scotland
The petitioner and the respondent are habitually resident in that jurisdiction Yes Yes – Note that the petitioner and respondent are referred to as the pursuer and defender in Scotland)
The petitioner and respondent were last habitually resident in that jurisdiction and the (petitioner*) (or) (the respondent*) still resides there (*specify as appropriate) Yes Yes
The respondent is habitually resident in that jurisdiction Yes Yes
The petitioner is habitually resident in that jurisdiction and has resided there for at least a year immediately prior to the presentation of the petition. Yes Yes - Note that in the Sheriff Court a  period of residence of 40 days in the specific jurisdiction of the Sheriff Court immediately preceding the raising of the writ (petition) is required.
The petitioner is domiciled and habitually resident in that jurisdiction and has resided there for at least six months immediately prior to the presentation of the petition. Yes Yes
(Only in the case of a marriage) the petitioner and respondent are both domiciled in that jurisdiction Yes Yes
Or: if none of the above apply:

No court of a EU member state has jurisdiction under the Council Regulation and either the

petitioner or

respondent

is domiciled in the jurisdiction on the date when this application is issued
Yes Yes

Divorce/dissolution procedure

England and Wales

The process for obtaining a divorce or dissolution is the same, regardless of the ground/fact upon which the divorce petition is based.

More information about the mechanics of the process can be found on our divorce, dissolution and separation page.

Scotland

In Scotland, there are two different processes by which a divorce/dissolution can be obtained. The procedure that a couple will take will be dependent on individual circumstances, and if there are children involved.

The two types of procedure are:

  • A Simplified or “Do It Yourself divorce”; or
  • Non Simplified/ Ordinary procedure

Simplified divorce procedure

If there are no children under 16 and financial matters have already been resolved by agreement, an application can be made for a simplified divorce. It is the most cost effective way of ending a marriage if circumstances allow for it.

This type of divorce is only based on either one year of separation with the consent of both parties, or two years’ separation (without consent). This method is essentially a paper exercise and does not involve either party attending the court.

It generally takes no more than two to three months in contrast to those which are contested, which can often take a year or more.

Ordinary procedure

If there are still financial matters in dispute or issues in respect of children to be resolved a normal divorce action is required.

The process of applying for a divorce in Scotland is by way of an initial writ being lodged at court.

Where should the divorce take place?

It might be that there is more than one possible jurisdiction for a divorce. Urgent advice must be taken, as timing could be critical for a petition to be filed in one jurisdiction, rather than another.

In some jurisdictions, the first in time rule will apply; in others it might be that the matter is decided on a basis of what is most convenient (forum conveniens).

In many jurisdictions, the financial remedies on divorce will be linked to where the divorce takes place. The outcome for a financial settlement might be very different in one jurisdiction, rather than another.

There are key differences between how a court will resolve financial issues, depending on whether proceedings are brought in England/Wales or Scotland. A separate article deals with those issues.

We can provide specialised advice in both England/Wales and Scotland, and assist in any cross border family cases which span both jurisdictions.

For any further information or to discuss the above in more detail, please do not hesitate to contact our divorce solicitors.

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