The termination of a civil partnership (called a dissolution) follows a similar process to divorce and the only ground for dissolving a civil partnership is irretrievable breakdown. The reasons for the breakdown are the same as for divorce but exclude adultery.
- Non-cohabitation for a period of one year with the consent of the other party
- Non-cohabitation for a period of two years
- Unreasonable behaviour
While divorce and the dissolution of a civil partnership require a court order, there are a number of other options available to you if your relationship has come to an end and separation has become a consideration.
You can only get a dissolution of a civil partnership in Scotland if you satisfy certain rules about where you both live. The rules are complicated and you should get more advice from a Citizens Advice Bureau or Solicitor (Find a solicitor on Law Society Scotland website). In order to get dissolution of a civil partnership the civil partnership must be recognised as valid in the United Kingdom.
There are two ways to get a dissolution of a civil partnership:-
- the simplified procedure, often called DIY dissolution of a civil partnership; or
- the ordinary procedure.
Simplified/Do it Yourself Procedure
Can I use the simplified/do it yourself procedure?
The simplified/do it yourself procedure can only be used in certain cases. It can only be used where:
- You are applying for divorce/dissolution because of the irretrievable breakdown of your marriage/partnership based on one year separation with consent or two years separation without consent, or because of the issue of an interim gender recognition certificate;
- There are no children of the marriage/partnership under the age of 16;
- There are no financial matters to sort out;
- You are not, and there are no signs that you spouse or civil partner are not able to manage his or her affairs because of mental illness, personality disorder or learning disability;
- There are no other court proceedings under way which might result in the end of your marriage / civil partnership.
There are also additional requirements relating to residence which you will need to meet to use this procedure and these are different depending on whether you are raising the application in the sheriff court or Court of Session. In both cases, you need to be able to say that:
- You and your spouse / civil partner are habitually resident in Scotland; and/or
- You and your spouse / civil partner were both last habitually resident together in Scotland and one of you still resides there; and/or
- Your spouse/ civil partner is habitually resident in Scotland; and/or
- You are habitually resident in Scotland having resided there for at least one year immediately before this application is made; and/or
- You are habitually resident in Scotland and have resided there for at least six months immediately before this application is made and you are domiciled in Scotland,
- (For Divorce applications only) You and your spouse are domiciled in Scotland.
If none of the above apply to you then you can still apply for simplified divorce if:
- either you or your spouse / civil partner are domiciled in Scotland, and
- additional provisions apply which enable nationals of other member states of the European Union to qualify. For further details on this ask your nearest Citizen’s Advice Bureau, or Sheriff Clerk’s Office.
If you are applying for simplified divorce/dissolution in the sheriff court, one of the following must also apply to you:
- you have lived at your current address for at least 40 days before the date of signing the application,
- your spouse / civil partner has lived at his/her current address for at least 40 days before the date of you signing the application, or
- either you or your spouse / civil partner have no known residence in Scotland, but did live at the address shown for at least 40 days, ending not more than 40 days before the date of you signing the application.
Which forms do I need to use?
If you are applying for simplified divorce or dissolution of civil partnership in the Court of Session, you can access the forms (see forms 49.73-A to 49.73-C and forms 49.80-A to 49.80-C) and guidance notes on the website.
How much does it cost to lodge the application in court?
The fees to lodge an application for simplified divorce or dissolution of civil partnership depend on whether the application is lodged in the sheriff court or Court of Session. Further information can be found in the ‘Court Fees’section.
You may be entitled to fee exemption, for example if you are entitled to certain state benefits. For more information on fee exemption see the ‘Court Fees’ section and the fee exemption application form.
You should note that there may be other fees chargeable as the case proceeds and these fees do not include any fees you may need to pay if you have instructed a solicitor to help you. The solicitor can give you information on these costs.
There is an affidavit on the application form which needs to be sworn before a Justice of the Peace, Notary Public, or Commissioner for Oaths. This service is free if you go to a justice of the peace. If you would like to do this before a Justice of the Peace then you can contact your local court to arrange an appointment.
Where can I get further information?
If you have any further questions about simplified divorce or dissolution of civil partnership, please contact your local sheriff court, or the Court of Session if you plan to send your application there.
Citizens Advice Bureau can also assist you. Contact details can be found on the Citizens Advice Bureau website.
Where can I get legal advice?
Scottish Courts and Tribunals Service staff are not legally qualified and therefore cannot provide you with any legal advice. However, the simplified divorce/dissolution procedure is designed so that you can “do it yourself” and not need to get legal advice. If you do decide that you would rather get legal advice, the Law Society of Scotland can provide contact details for solicitors in your area.
What is the Ordinary/Non-Simplified Procedure?
You will need to use the ordinary/non simplified procedure when the criteria for the simplified procedure do not apply to you.
This procedure can be used in the sheriff court or Court of Session, but is much more complex. There is no set application form and instead proceedings begin with an initial writ in the sheriff court and a summons in the Court of Session. As the procedure is complex we would strongly advise seeking legal advice. Scottish Courts and Tribunals Service staff are not legally qualified and therefore cannot provide you with any legal advice.
Contact details for the Law Society of Scotland, who can provide details of solicitors acting in your area can be found on the Law Society website.
Rules and Forms
How much will it cost?
The fees to lodge an application for divorce or dissolution of civil partnership depend on whether the application is lodged in the sheriff court or Court of Session. Court fees are payable for lodging these applications in court, and the current fees can be found in the ‘Court Fees’ section.
These amounts only cover the fees charged by the court, if you have employed a solicitor they will also charge fees. The solicitor will be able to provide you with information on these costs.
Children at the end of a civil partnership
When you stop living together, you’ll have to decide who will look after the children. Generally it is best if everyone can work together to agree about what is in the children’s best interests.
The Scottish Government has produced a parenting pack that explores all the issues. It is available at www.scotland.gov.uk.
You or your partner could both have parental responsibilities and rights for the children. This could be because you are the child’s parent or because a court decided that it was best for the child to give you parental rights and responsibilities. It may also be because the child was conceived by donor insemination or fertility treatment on or after 6 April 2009 and both partners are legal partners. When you have parental responsibilities and rights for a child it means that you have to safeguard and promote the child’s health, development and welfare. You also have the right to have the child living with you or decide where the child should live.
You may be able to make arrangements between yourselves about where the children are to live and what contact should take place with the other parent. However, if this is not possible, the court can make the decisions about the children.
If you are getting a dissolution of the civil partnership, the court will not grant it until it has looked at the arrangements for the children. The court is primarily concerned about the children’s welfare. You’ll have to give the names of all dependent children of the family. Children under 16 are usually thought of as dependent. The duty to provide for (maintain) a child usually lasts until a child is 18 or 19 if in full-time non-advanced education or if in full time further education up to 25. The court will want details of children who are the children of both partners together, adopted children, step-children and any children who have been treated as part of the family. It doesn’t include foster children.
You have to give details of how the children will be looked after. You’ll need to say where the children will live and who they will live with, as well as the financial arrangements for their support. The court’s main concern will be to decide what’s in the best interests of the children. If the court is satisfied that the arrangements made by the parents for the children are in their best interests it will not change them. It will only make decisions where this is necessary to sort out a disagreement about arrangements. Decisions made by the court are called orders.
You could get help from a mediator or collaborative law practitioner to make arrangements about the children, see under heading Family mediation or collaboration.
If you are thinking of going to court about arrangements for your children, you should consult an experienced adviser, for example, a family law solicitor or go to a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by e-mail, click on nearest CAB.
What orders can a court make about children
A court will only make an order concerning children if it feels it is in the best interests of the children to do so. A court can make orders about:-
- who the child should live with (a residence order)
- who the child should have contact with and what sort of contact it should be (a contact order)
- preventing something happening, for example, a name change
- specific issues.
The court can make a residence order in favour of:-
- one parent. This means that the child must live with that parent
- both parents. One residence order can be made for both parents, even if they are not living together. The order will say how much time the child will live with each parent
- a third person, for example, a grandparent.
The court will normally expect you and your partner to make your own arrangements about maintaining contact with your children. The court will only make a court order if you can’t agree.
The contact order may include conditions. It may also say what sort of contact you can have, for example, visiting, telephoning or writing letters. Orders can also be made to allow contact between a child and other relatives or friends.
Preventing something from happening
A court can make an order called an interdict to prevent one parent from doing something that the court thinks is not in the child’s best interests.
A court can make an order about a specific issue that a child’s parents cannot agree about, for example, religious education.
Useful Information from Citizens Advice Bureau – Scotland
Household goods and other possessions
If a couple split up and they disagree about who owns household goods and possessions acquired during the civil partnership it is presumed they are owned jointly. Gifts and inherited goods belong to the person who received them. Goods acquired before the civil partnership belong to the person who acquired them. If you cannot agree about who owns all the goods and possessions you may need help. It may be useful to ask a mediator or collaborative law practitioner for help as going to court is expensive. If you are having to go to court about other financial matters any disputes about valuable goods may have to be dealt with at the same time. You should ask your solicitor about disputes about household goods and possessions.
Financial arrangements at the end of a civil partnership
Until you have a dissolution of your civil partnership you and your partner have a legal obligation to provide financial support for each other.
You may need help to agree financial arrangements – see under heading Family mediation or collaboration.
For the partners
Agreeing financial support for each partner
If you both agree to financial support, this is called a voluntary agreement. It can be written down or it could be a verbal agreement.
You can agree, for example, that one of you will make weekly payments to the other for the support of children, or will meet rent or mortgage payments and household bills or pay for the children’s clothing and holidays.
Before you agree on a package of financial support, you should get legal advice about whether it is an appropriate arrangement. It may be useful to have an agreement written up by a solicitor in case of future dispute. You might get help with the costs of making a voluntary agreement.
For more information about help with legal costs, see Help with legal costs.
Court orders for money from a former civil partner
You can apply for a court order for money at the end of a civil partnership. The court will consider all financial circumstances of both partners, including pension arrangements.
A court can make an order for regular payments to be made or for a one-off lump sum. It can also make an order about pension arrangements.
You might get help with legal costs when you apply to court for financial support. However, you might have to pay some of the legal costs back, out of money or property you are given by the court order. This is called clawback. Make sure your solicitor explains clawback properly to you before you start court action. Where pension arrangements are involved, you should also consider getting specialist financial advice.
For more information about help with legal costs, see Help with legal costs.
Partners who agree can make a voluntary arrangement or family-based arrangement for money for children. If you make an agreement in writing with the help of a solicitor, the agreement can be legally enforceable. If you need advice on the options available for arranging child maintenance and for advice on how to set up a voluntary or family-based child maintenance agreement, you can contact the Child Maintenance Options Service. Their helpline number is 0800 988 0988. You can also go to the Service’s website at www.cmoptions.org.
The Child Maintenance Options Service can help you:
- understand the options for making a child maintenance arrangement
- check that any existing arrangement is right for you and your child
- estimate how much child maintenance you would pay or get
- refer you to other organisations for help and advice.
The issue of money for children is complex and you may find it helpful to get further advice from an experienced adviser, for example, a family law solicitor or a Citizens Advice Bureau – where to get advice.
For more information about family-based arrangements see How to make a family-based agreement
For more information about child maintenance see Child maintenance – where to start
Housing rights at the end of a civil partnership
At the end of your civil partnership, the court can give you or your partner rights to the home or can take rights to occupy the home away from either of you. As long as you are both still living in the home, whether it is owned or rented, you both have rights to live in it. If one partner has been violent there are special orders the court can make to change the violent partner’s rights to the home and exclude her/him.
For more information about help you can get if your partner has been violent to you, see Domestic violence.
If one of you is a sole owner or a sole tenant and the other partner leaves the home, s/he may have to go to court to enforce her/his rights to get back in.
If you are thinking of going to court about your housing rights after the breakdown of your civil partnership, you should consult an experienced adviser, for example, a family law solicitor or a Citizens Advice Bureau – where to get advice.
If you and your partner are owner-occupiers the value of the family home is likely to be an issue within the dissolution of a civil partnership settlement. You should see an experienced adviser about decisions that can be made about the family home.
Anyone who wants to protect their rights should consult an experienced adviser, for example, at a Citizens Advice Bureau – where to get advice.
Housing costs at the end of a civil partnership
Paying the mortgage when a civil partnership breaks down
If a mortgage is in joint names, both people are jointly and solely liable for the mortgage payments. This is known as joint and several liability.
This means that if one of you leaves and stops contributing to the mortgage payments, the mortgage lender can ask the other person to pay the full amount.
If a mortgage is in one person’s name, only that person is liable for the mortgage payments.
However, if your name is not on the mortgage and you want to stay in your home, you will need to keep up the mortgage payments. If your ex-partner is no longer making any payments, you will need to pay the full amount, otherwise the mortgage lender can start action to repossess your home. Get in touch with the lender and negotiate what payments might be accepted to stay in the home. You have the right to do this because you are in a civil partnership.
Paying the rent when a civil partnership breaks down
A joint tenancy means that all of the tenants named on the tenancy agreement are jointly and solely liable for the rent. This is known as joint and several liability.
This means that if the other joint tenant leaves and stops making payments towards the rent, the landlord can ask you to pay the full amount. That’s why it’s important to keep paying the full amount, otherwise you may get evicted.
In some cases, a joint tenant can end the joint tenancy by giving notice to the landlord. If you want to stay in the property you’ll need to make sure this doesn’t happen or if it has happened, you can negotiate with the landlord. Your landlord may be able to give you a new tenancy in your name only. If you are in this situation you should get advice.
You can get advice from your local CAB – where to get advice.
Sole tenancy which is not in your name
If a tenancy is in the name of your civil partner, they will be liable to pay the rent for as long as the tenancy continues. If the rent isn’t paid and arrears build up, the landlord may take action to evict you.
If your ex-partner is no longer paying any rent, you should negotiate with the landlord to pay the rent because you have the right to do so. If the landlord won’t accept the rent you should get advice straightaway. If there are arrears you should also get advice about how to pay these off if you want to stay in the home.
You can get advice from your local CAB – where to get advice.
Benefits and housing costs
If you stay in your home after your partner has left, depending on your income, you may be able to get Housing Benefit to help pay the rent. If there is a mortgage, you might get help with the mortgage interest.
For more information about Housing Benefit see, Help with your rent – Housing Benefit.
For more information about help with mortgage interest see, Help with mortgage costs if you’re not working.
Family mediation or collaboration
Family mediation or collaborative practice are two ways of helping couples who are separating or divorcing to sort out disagreements and reach decisions about things like money, property and looking after the children, without having to go to court. To use either of these options, you both have to be willing to go along voluntarily. Any decisions you make there will not be legally binding but may help you to start drawing up an agreement. Mediation involves you and your partner working with a trained and impartial mediator to reach agreement. Collaborative practice involves you and your partner meeting together with your solicitors to discuss the issues and find solutions and agreement.
There may be an additional need to find out how any children are feeling before decisions are taken. There is a special service that can help you all to do this.
A couple can use family mediation or collaborative practice as soon as possible after they have decided their relationship is ending and they feel able to discuss any disputes. Mediation and collaboration can be helpful before legal proceedings begin, to encourage co-operation between the couple and to prevent disputes from getting worse and agreement becoming harder to reach in the future. They can also be used after a separation or dissolution of a civil partnership if new issues arise or there are outstanding issues to be resolved.
For more information about mediation and a national map of local services, see www.relationships-scotland.org.uk.
Some local solicitors may be skilled in family mediation. You can check what is available in your area by contacting the Law Society of Scotland on 0131 226 7411 or see www.lawscot.org.uk.
For more information about collaborative practice, see www.consensus-scotland.com.
The Spark provides relationship counselling services for families, couples, individuals and young people and has regional centres across Scotland where clients can access face to face counselling. Telephone and online counselling is also available. There is a charge for counselling but what you have to pay can be negotiated. Spark has a Relationships Helpline offering immediate relationship support. Calls are free from landlines and most mobile networks. If you prefer to type rather than talk you can use the webchat instant messaging support service which you can access from the top of the homepage of the website. The contact details are:-
General enquiries: 0141 222 2166
Relationship Helpline: 0808 802 2088 (Mon-Thurs 9am-9pm, Fri 9am-5pm, Sat 10am-2pm)
Appointments: 0845 271 2711
Email: Contact form available on the website
Family Decision Making Service
If there are problems in the family because of separation of parents or other carers there are agencies that can help you all to make sure everyone knows how children feel before any decisions are taken. The Family Decision Making Service is run by three organisations all together – One Parent Families Scotland, Parentline Scotland and the Scottish Child Law Centre. They aim to help to reduce conflict and improve collaboration between separated and separating parents using family group decision-making. You can read more about this service on the website of One Parent Families Scotland
*Legal information given above is not legal advice. Please contact a solicitor to get legal advice.
- Civil Partnership & Marriage: Name Change
- Civil Partnership Dissolution: What is ‘unreasonable behaviour’?
- Civil Partnership: Child Maintenance
- Civil Partnership: Mediation
- Housing rights at the end of a civil partnership
- Joint Debt: Who is liable in separation?
- Practical advice: Who to tell you have separated
- Sorting Out Your Finances During A Break-Up