News/Blog

Divorce and dissolution for survivors of domestic abuse in Scotland

Ending a relationship can be a difficult step. When the relationship has been abusive, you may be concerned about your safety and have additional worries and issues to deal with. You don’t need to cope with this alone - you can access support from a range of specialist organisations and, depending on your circumstances, legal options should be available to you.

Domestic abuse is a pattern of controlling, coercive, threatening, degrading and/or violent behaviour, including sexual violence, by a partner or ex-partner (Scottish Women’s Aid). In Scotland, domestic abuse - including coercive and controlling behaviour and physical abuse - is a crime. Depending on your circumstances, legal options should be available to you. You can find more information by viewing our legal guides.

To help you understand the law and your rights when it comes to ending a marriage or civil partnership following domestic abuse, we have today published a new legal guide exploring these issues in more detail. This short blog provides a brief overview of the guide’s contents. We recommend you access the full guide for further detail.

 

Our guide

Our new legal guide on Divorce and Dissolution of Marriage and Civil Partnerships includes information on:

• What is marriage and civil partnership (including information on ‘common law marriage’; marriages and civil partnerships that take place abroad; and forced marriage).
• The processes for ending a marriage or civil partnership.
• Dividing finances and assets.
• Getting legal representation.

We hope that our guide is useful for you if you are leaving an abusive marriage or civil partnership.

 

Ending a marriage or civil partnership

In Scotland there are two types of procedure that can be used to apply for divorce or dissolution of a civil partnership. These are:

• the simplified or “do-it-yourself” procedure
• the ordinary procedure (in the Sheriff Court) or divorce/dissolution procedure (in the Court of Session).

 

The “do-it-yourself” procedure can only be used when:

• You and your spouse/partner have been separated for one year and you both consent to the divorce/dissolution; or you have been separated for two years; or one of you has been issued with an interim gender recognition certificate after the marriage.
• There are no children of your relationship under the age of 16.
• There are no signs that you or your spouse/civil partner are unable to manage your affairs because of mental illness, a personality disorder or a learning disability.
• There are no other divorce/dissolution court proceedings which may result in the end of your marriage/civil partnership.
• There are no financial matters to resolve (either there are no assets or debts to be divided between you, or you have reached an agreement regarding division of your assets and any outstanding debts. It is important that you seek legal advice before entering any agreement.)

 

For all other divorces, the “ordinary procedure” is used. For this procedure to be used, you must prove that there has been an “irretrievable breakdown” of your marriage or civil partnership. This can be proved if:

• There has been unreasonable behaviour on the part of your spouse. This can cover a range of behaviours including, but not limited to, physical or emotional abuse; alcohol or drug abuse; verbal or psychological abuse; refusal to communicate; or financial irresponsibility.
• Your spouse has been unfaithful to you.
• You both agree to the divorce and have been separated for at least one year.
• Or you have been separated for at least two years.

 

You can read more about this on page 10 of our guide.

Divorce/Dissolution can be a very long and complicated process and so it can lead to large legal fees. People on low incomes can access legal aid to cover the cost of civil cases such as divorce. You can speak to your solicitor about this or contact the Scottish Legal Aid Board for more information.

 

Divorce and dissolution following domestic abuse

Currently in Scottish law, when it comes to the financial side of divorce, domestic abuse is not mentioned or taken into consideration fully. When a court looks at how to divide the value of any relevant assets, it considers principles set out in the law. You can read more about which assets might be considered ‘matrimonial property’, and the principles which courts will consider in dividing these, on pages 11-12 of our guide.

Although domestic abuse is not specifically mentioned in the law, when dealing with finances, in some circumstances the court can take into account the behaviour during the marriage. For example, if your ex-partner engaged in economic abuse against you or where there has been fraud or disposal of assets by your ex-partner. However, this is not straightforward, so you should get advice from a solicitor who specialises in this area of law.

 

Advice and support for divorce and dissolution

If you are looking to end a marriage or civil partnership following abuse, or if you would like to know more about the relevant law and legal options available to you, we hope that our guide will be useful. At the end of the guide, you will also find a list of helpful organisations and further resources. 

For more detailed information and advice, you can call our helpline to speak to one of our experienced advocacy workers who will put you in touch with our solicitors if you need further advice. You can also make an appointment with one of our solicitors at our legal surgeries.