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Grounds for divorce in Scotland

This information applies to Scotland only.

Before filing for divorce, you should consider the grounds for divorce, as these will need to be specified as part of the divorce process. The two possible grounds for divorce in Scotland are: irretrievable breakdown of the marriage or one party is applying for an interim gender recognition certificate. 

Irretrievable breakdown can be shown in one of four ways: adultery, unreasonable behaviour, living apart for one year (with agreement), or living apart for more than two years (regardless of agreement). 

In practice, divorcing couples who both want to get divorced will often decide to choose the reason of ‘unreasonable behaviour’ as a catch-all ground.

The ground of adultery can be used where your husband or wife has had sexual intercourse with someone else of the opposite sex (so if your husband had sex with a man this does not count as adultery). It must be actual sexual intercourse - not just a kiss or ‘heavy petting’.

If you decide to file for divorce on grounds of adultery, it is best to do so within 6 months of discovering that your spouse cheated on you. However, you cannot give adultery as a reason if you lived together as a couple for 6 months after you found out about it.

You can only use the ground of adultery if you are the ‘innocent’ party (ie your husband or wife slept with someone else - not if you committed adultery). However, if you both had sexual relationships with other people, either husband or wife can file for divorce.

Unreasonable behaviour is that which makes a person feel unable to bear living with their spouse.

There are essentially two distinct situations where the ground of unreasonable behaviour is given in a divorce petition: firstly where unreasonable behaviour has actually occurred, and secondly where none of the other grounds for divorce apply (eg where husband and wife have simply drifted apart and no longer wish to remain married).

Although unreasonable behaviour can constitute serious accusations including domestic violence, drunkenness or gambling, it also encompasses rather vague issues such as lack of support in maintaining a household. In reality, there is a very low standard when it comes to unreasonable behaviour, but some factual reason must be given and an incident of ‘unreasonable behaviour’ must have occurred.

It should be noted that, if your husband or wife has become intimate with someone else but has not had sexual relations with them, although adultery cannot be given as a ground for divorce, unreasonable behaviour can be used. Similarly, if your spouse has a sexual relationship with a member of the same sex, this does not count as adultery but can count as unreasonable behaviour.

If you and your spouse have lived apart for at least 1 year, and you both agree to get divorced, this ground can be used. You can still use this ground if you and your spouse lived in the same dwelling during this time but did not live together as a couple. 

If you got back together for a period of up to 6 months within the one year, the one year of living apart will continue to count as continuous. However, the six month period cannot count towards the one year of living apart.

If you have not been living with your husband or wife for at least 2 years, you can file for divorce on this ground, even if your spouse does not agree to divorce.

You can still use this ground if you and your spouse lived in the same dwelling during this time but did not live together as a couple (ie you led separate lives).

A marriage can be ended on this ground by a transgender person who has an interim gender recognition certificate. To obtain such a certificate, they must apply to a Gender Recognition Panel. For more information on this, please read Apply for a Gender Recognition Certificate.

Dissolution of a civil partnership requires similar grounds to divorce, although adultery is not a recognised ground. However, sexual unfaithfulness could constitute unreasonable behaviour. 

For more information about divorce, read The divorce process in Scotland.