Grounds for Divorce

In Scotland, there are two grounds for divorce. The pursuer (applicant) either is required to establish that the marriage has broken down irretrievably, or parties can apply for divorce where one party has been issued with an interim Gender Recognition Certificate. Irretrievable breakdown can be established by any one of the following:

• the defender’s (non-applicant spouse) unreasonable behaviour since the date of the parties’ marriage;
• the defender has committed adultery since the date of the parties’ marriage;
• the parties have lived separately for one year or more, and the other party consents to the divorce; or
• the parties have lived separately for two years or more, in which case consent of the other party is not required.

The same grounds apply for divorce of same-sex couples. However, adultery is not a means by which to establish irretrievable breakdown as it is for heterosexual couples.

In Scotland, termination of a civil partnership is known as a dissolution and the grounds for dissolution are the same as the grounds for divorce. However, as with same-sex couples, adultery is not a means by which to demonstrate irretrievable breakdown for dissolution, owing to its definition. 

Process and Timeline for Divorce

While parties are not required to attend court where a divorce is uncontested, in Scotland parties do have to commence court proceedings to obtain a divorce. 

Where no financial orders are sought, and if there are no children under the age of 16, parties can apply for divorce using the “simplified divorce procedure”. The applicant is required to complete a form and, if divorce is sought on the basis of one year’s separation, their spouse must signify their consent. The form is then submitted to the court and divorce tends to be granted within a few months.

Where spouses do not meet the criteria for the simplified divorce procedure, or where there remains dispute over financial or child-related matters, full divorce proceedings must be raised. Legal pleadings are prepared, and issued by the pursuer specifying the orders sought. Once served, the defender has strict time limits within which to defend the action, and lodge their pleadings setting out the basis of opposition. If the action is undefended, the pursuer can ask the court to grant divorce by submitting a “minute” and other supporting documentation to include affidavits, following which the court should grant the divorce within a few months.

Where defences are lodged, and the divorce proceeds are contested, the court will ultimately fix a full evidential hearing, known as a proof, to consider the matters in dispute. In terms of the likely timeline for a contested action, much will depend on the availability of the relevant court and the nature of the issues in dispute; however, this will generally take between one and two years to conclude.

Rules for Service of Divorce Proceedings

Sheriff court

The initial writ (the initiating document that sets out the detail of the claim in ordinary civil actions in the sheriff court) is sent to the relevant sheriff court for warranting. Upon review of the papers, a sheriff shall issue a warrant, which is the court’s authority to serve the proceedings on the defender.

Once the initial writ is warranted, the documentation can then be served either by post, using first-class recorded delivery, or personally on the defender by a sheriff officer (process servers). The sheriff officer shall serve the documentation personally on the defender or can leave the initial writ in the hands of a resident at the person’s dwelling place or with an employee at their place of business. Where a sheriff officer is unsuccessful in executing service, they may, after making diligent enquiries, serve the documentation by depositing at the person’s dwelling place or place of business, or leave it at the dwelling or place of business in such a way that it will be brought to the defender’s attention. Alternatively, the defender’s solicitor can accept service on the defender’s behalf with their authority.

Court of Session

The summons (the initiating document which sets out the detail of the claim in ordinary civil actions in the Court of Session) is sent to the Court of Session for signetting. A judge shall review the papers and return the signetted summons, which is the court’s authority to serve the proceedings on the defender.

Once the summons is signetted, the documents can then be served either by post to the known dwelling place of the defender, or personally by “messengers at arms” (process servers). The messengers at arms shall serve the documentation personally on the defender or can leave the documentation in the hands of another person at the person’s dwelling place or, failing which, by leaving it in their dwelling place if after enquiring they have reasonable grounds to believe the defender resides there. The messenger at arms can also deposit it with someone at, or at, the defender’s place of business if they have reasonable grounds to believe the defender carries on business there. Alternatively, the defender’s solicitor can accept service on the defender’s behalf, with their authority. 

Religious Marriages and Divorces

The Marriage (Scotland) Act 1977 regulates marriage in Scotland. Religious marriages are treated similarly to civil marriages in the sense that the following steps are required to ensure the marriage is solemnised.

• Each of the parties must submit to the district registrar a marriage notice stating their intention to marry not more than three months before the date of marriage, and not later than 29 days before the ceremony is to take place.
• The marriage must be solemnised by an approved celebrant or registrar in the presence of two witnesses who are over the age of 16.
• Following the ceremony, the parties, together with the approved celebrant or registrar, are required to sign the marriage schedule.
• In the case of a civil ceremony, the registrar shall return the signed marriage schedule to the registrar’s office for registration. Where parties opt for a religious or belief ceremony, they must personally return the schedule to the local registrar after the wedding and within three days of the ceremony.

The above-mentioned formalities must be complied with in order for the marriage to exist. 

The means by which to obtain a divorce in Scotland are the same irrespective of whether parties are married in a civil or religious or belief ceremony.

Processes in Relation to Ending a Marriage

In Scotland, nullity proceedings can be brought, in which case the marriage may be found to be void or voidable. A void marriage is one that was not legally valid because the parties were closely related, one or both parties were under the age of 18 (or under the age of 16 if the marriage took place prior to 27 February 2023), or if either party was already married or in a civil partnership. If the marriage was not legally valid, it is treated as never having existed.

Alternatively, it is possible to annul a marriage for various reasons, such as where a party has not consented to the marriage or was incurably impotent. In such circumstances, the marriage legally exists until it is successfully annulled, and such parties acquire the same rights to financial provision as they would have had had they divorced. 

Parties can be judicially separated in Scotland and the same grounds apply as for divorce. The parties can live apart albeit remain married, and all responsibilities and rights arising from the marriage shall continue.

Jurisdictional Grounds to Commence Divorce Proceedings

A Scottish court has jurisdiction if either party to the marriage is domiciled in Scotland or if either has been habitually resident in Scotland throughout the year immediately before the divorce action is raised. If proceedings are raised in a sheriff court, parties must additionally demonstrate that one of the parties has either been resident in the relevant sheriffdom for a period of at least 40 days prior to the proceedings being raised, or was resident in the sheriffdom for a period of at least 40 days that ended not more than 40 days prior to the proceedings being raised, and has no known residence in Scotland on that date.

Jurisdiction for divorce is regulated by the Domicile and Matrimonial Proceedings Act 1973.

Same-Sex Spouses and/or Civil Partners

The same rules apply to same-sex spouses and civil partners. However, notwithstanding the additional criterion for a sheriff court to have jurisdiction (as outlined in “Jurisdictional Grounds to Commence Divorce Proceedings”), Edinburgh Sheriff Court shall have jurisdiction to entertain proceedings for the divorce of parties in a same-sex marriage if the parties married each other in Scotland, where no court has, or is recognised as having, jurisdiction, and it appears to the court to be in the interests of justice to assume jurisdiction in the case (a “jurisdiction of last resort”).

Concepts of Domicile, Residence and Nationality

The concepts of domicile and nationality are relevant to determining jurisdiction for divorce in Scotland. While not defined in the Domicile and Matrimonial Proceedings Act 1973, the concepts are to be given their ordinary meaning.

Domicile is a common law concept used by the courts to determine which legal system applies to an individual at a specific time. It can be considered as an individual’s permanent home, or where they have the closest connection.

Residence is where an individual lives.

Contesting Jurisdiction

A party to divorce proceedings can contest jurisdiction, and priority is given to the jurisdiction within the British Isles in which the parties to the marriage or civil partnership last resided together. Provided that one of the parties to the marriage was habitually resident in the relevant jurisdiction throughout the year prior to when the couple ceased to reside together, proceedings raised elsewhere in the British Isles must be sisted (halted) regardless of where proceedings were first raised.

Otherwise, a party can seek to sist (halt) proceedings in Scotland if they can demonstrate that proceedings are already ongoing before another court of competent jurisdiction, and that that court is a more appropriate forum for the case to be heard in all of the circumstances of the case. This is known as a discretionary sist and consideration shall be given to the general forum non conveniens factors, including where the parties’ assets are located, where they are now living, and how far proceedings have progressed.

Stay of Proceedings Relating to Foreign Jurisdiction

See “Contesting Jurisdiction”.

Grounds for Jurisdiction for Commencing Financial Proceedings

Jurisdiction for divorce is regulated by the Domicile and Matrimonial Proceedings Act 1973. The Scottish courts have jurisdiction if either of the parties has been habitually resident in Scotland throughout the year before the action is raised or if either of the parties is domiciled in Scotland.

Contesting Jurisdiction

A party to financial proceedings can contest jurisdiction.

Stay of Proceedings

Within the British Isles (eg, England or Jersey), the Domicile and Matrimonial Proceedings Act 1973 affords priority to the jurisdiction where the parties last resided together. Where at least one party was habitually resident in that jurisdiction for the year before the parties last lived together, if proceedings are raised in that jurisdiction, proceedings raised in any other part of the British Isles must be sisted (stayed), regardless of where proceedings were first raised.

In other cases, the Scottish courts have discretion to sist based on the common law doctrine of forum non conveniens. The party seeking the sist must show that there are proceedings ongoing in another competent jurisdiction, and that it would be in the interests of justice for the case to be heard there.

Financial Claims After a Foreign Divorce

A foreign divorce will generally be recognised in Scotland if it was obtained by means of proceedings and one of the parties was a national of, habitually resident in, or domiciled in the country in which the divorce was obtained, and the divorce is effective in that country.

Where an overseas divorce is obtained otherwise than by means of proceedings (eg, without the involvement of a court), it will be recognised only if both parties are domiciled in the country in which the divorce was obtained. If either party was habitually resident in the UK throughout the year before such a divorce was obtained, it will not be recognised.

Recognition of foreign divorces can be refused if one party was not given sufficient notice or was denied an opportunity to take part in the proceedings, or otherwise on public policy grounds.

There are no procedural requirements ‒ although parties may seek a declarator of recognition of a foreign divorce if there is doubt as to the recognition of the relevant foreign divorce in Scotland.

There are limited grounds under which an application can be made for financial provision following a foreign divorce, with the jurisdictional test requiring a connection of the parties to Scotland – eg, habitual residence or domicile. Essentially, the court will apply Scots law and seek to place the parties in the financial position that they would have been in had the divorce proceeded in Scotland.

Service requirements in financial proceedings are the same as for divorce proceedings, as is the process and timeline for financial proceedings.

Court’s Approach

The parties are subject to the provisions of the Family Law (Scotland) Act 1985 (the “1985 Act”), which includes a defined concept of matrimonial property providing for fair sharing on divorce – ie, it has no propriety consequences during the marriage. Parties may enter into a nuptial agreement to modify the effect of the 1985 Act.

The 1985 Act provides a framework for financial provision on divorce. The overriding principle is to ensure fair sharing of the matrimonial property, which is broadly defined as the net value of all assets acquired by the parties during the marriage, which are still held at the date of separation, except assets acquired by way of gift or inheritance from a third party.

The fair-sharing principle applies unless there are circumstances justifying a different outcome, such as where the source of the funds used to acquire a matrimonial asset did not derive from the income or efforts of the parties during the marriage.

Fair account should be taken of any economic advantage derived by one party from contributions of the other, and of any economic disadvantage suffered by either party in the interests of the other party or the family. The economic burden of caring for children under the age of 16 should be shared fairly between the parties.

Where one party has been substantially dependent on the financial support of the other, they should be awarded such provision as is reasonable to enable them to adjust to the loss of support over a period not exceeding three years. A party who is likely to suffer serious financial hardship as a result of the divorce should be awarded such provision as is reasonable to relieve them of hardship over a reasonable period.

Regulation or Reallocation of Assets or Resources on Divorce

The main financial orders courts will make are:

• payment of a capital sum;
• transfer of property;
• payment of a periodical allowance (maintenance post-divorce);
• a pension-sharing order; and
• incidental orders such as the sale of a property.

When making such orders, courts will consider the factors set out in “Court’s Approach”.

Identification of Assets

There is a duty of full disclosure on the parties, and the court can enforce disclosure in the event of non-compliance by a variety of means, including against third parties

Property Regimes

Property regimes do exist in Scotland. See the discussion in “Court’s Approach”.

Trusts

The courts in Scotland recognise trusts. Property held in trust is owned by the trustees and will generally be excluded from the value of the matrimonial property where one party is the settlor or beneficiary. Arguments can nonetheless be advanced that an interest in a trust is matrimonial property and/or is available as a resource. Transfers into trust can be set aside where they have been made for the purpose of defeating the other party’s claim. There is no concept of the constructive or resulting trust in Scots law as is known in some common law countries.

There is a strong emphasis on achieving a financial clean break. Awards of periodical allowance (post-divorce support) are the exception rather than the norm, and they will only be awarded if a capital sum or property transfer would be inappropriate or insufficient. In all but the most extreme circumstances, orders for periodical allowance are limited to a maximum period of three years from divorce.

Spouses owe an obligation of maintenance (known as aliment) to each other while they are married. The amount is determined by reference to the needs and resources of each party. The obligation subsists only until divorce is granted.

Interim Maintenance

Following the breakdown of a marriage, a party can apply for interim maintenance pending the final outcome.

Ongoing Maintenance

See the foregoing paragraphs regarding ongoing maintenance.

Marital (nuptial) agreements have long been considered to be enforceable in Scotland. A court will only interfere with a validly executed agreement if, at the time the agreement was entered into, the circumstances were such that it was not fair and reasonable. There is neither need for specific provision to be made for either spouse, nor for the terms of the agreement to bear any reference to the orders a court would usually make upon separation.

The opportunity to take legal advice, the extent of disclosure, and the time afforded to the parties to consider the implications of the agreement are all factors in determining the enforceability of nuptial agreements. The position should be the same in the case of a foreign nuptial agreement being relied on in a Scottish court.

Key Case Law

Key case law includes:

• C v M 2021 SLT (Sh Ct) 319;
• Bradley v Bradley 2018 SC (SAC) 7; and
• Gillon v Gillon (no3) 1995 SLT 678.

Division of Assets for Unmarried Couples

The Family Law (Scotland) Act 2006 (the “2006 Act”) gives rights to unmarried couples to bring claims against each other within one year of separation. Compensatory payments can be sought from a former partner for contributions made during the relationship, whether financial or otherwise. The applicant must show that they have suffered economic disadvantage in the interests of the other party or of a child of the relationship, or that the other party has derived economic advantage from contributions made by the applicant.

The court may award a capital sum, which may be payable in instalments, or such interim order as it sees fit. Many orders available on divorce are not available to former cohabitants – for example, property transfer orders or pension shares.

Acquisition of Rights

Cohabitants do not per se acquire any rights by virtue of length of cohabitation, children, etc, but these would be factors relevant to decision.

Enforcement of Compliance

A registered minute of agreement between the parties is directly enforceable and has the same status as a court order. All means of diligence are available – for example, arrestment and inhibition, and ultimately sequestration (bankruptcy).

International Enforcement

International enforcement of a financial order is permitted in Scotland.

Media and Press Reporting

Scottish courts have a long tradition of open justice and, other than in specific and limited circumstances, the media will be allowed to attend and report on court proceedings.

In general terms, where legal proceedings in Scotland are heard in public, they are capable of being reported, provided such publication is contemporaneous and in good faith, failing which they are liable to be treated as being in contempt of court (Contempt of Court Act 1981). The court may, however, determine that it would be appropriate to postpone or restrict such publication, and there are specific statutory exclusions relating to family law and child cases.

Undefended and simplified divorce actions do not call in open court. The consequence is that such cases cannot be reported until decree of divorce has been granted, at which time the media would have access to the names of the parties and the date on which they were divorced.

The Judicial Proceedings (Regulation of Reports) Act 1926 provides that, in the case of actions of divorce or dissolution, the media may only publish:

• the names, addresses and occupations of the parties and witnesses;
• a concise statement of the orders sought and the defences;
• details of any legal issues arising and the view taken by the court; and
• the final judgment and any observations made by the judge.

Where proceedings involve a child aged 16 or under, the court may, in terms of Section 46 of the Children and Young Persons (Scotland) Act 1937, make an order that the child or children must not be capable of being identified by any newspaper report. This would normally mean that any subsequent judgment will be anonymised.

No such order is required in respect of a child concerned in exclusion order proceedings by virtue of Section 44 of the Children Scotland Act 1995. Likewise, Section 182 of the Children’s Hearings (Scotland) Act 2011 makes provision for a child involved in a children’s hearing or other proceedings under the Act. In both cases, the relevant sections simply provide that any publication that could identify such a child is prohibited.

Similarly, adoption and permanence proceedings are heard and determined in private in accordance with Section 109 of the Adoption and Children (Scotland) Act 2007, unless the court decides otherwise. Again, where a judgment is produced, this will ordinarily be anonymised so that the parties, and the child(ren), cannot be identified.

Unless specifically excluded by statute, members of the media may be permitted to attend proceedings that are closed to the public (Sloan v B 1991 SC 412). They may utilise live text-based communications while within a courtroom, but they are nevertheless expected to adhere to the reporting restrictions noted above. Photography is not permitted within court buildings without prior judicial approval and similarly electronic devices may not be used with the exception of solicitors, who may use them for the purposes of proceedings only.

Where the relevant reporting restrictions do not automatically apply by operation of statute (as set out earlier), parties may prevail upon the court’s general discretion in terms of the Contempt of Court Act 1981 – Section 11 of which empowers the court to prohibit publication of a name or a matter in connection with the proceedings. Any such order must, however, be sent to any interested person, which will include the press, and must be published on the Scottish Courts and Tribunals website. This may have the unintended consequence of drawing their attention to an action that might have otherwise proceeded unnoticed.

Where a judge exercises their discretion to impose reporting restrictions, they must first make an interim order that specifies why they are making the order. They must thereafter allow any interested person the opportunity to make representations before making a final determination on the matter. Once an order has been made, it remains open to any person aggrieved by such an order to apply for its revocation or variation.

There is also scope for the relaxation of reporting restrictions in relation to children’s hearings and other proceedings under the Children’s Hearings (Scotland) Act 2011, where to do so would be in the interests of justice.

Anonymising Proceedings

See the discussion in the preceding paragraphs.

Mechanisms Outside the Court Process

There is a strong and established culture of extrajudicial negotiations being used to achieve settlement between parties, with the court action then being limited to that of a change of status alone and all financial matters dealt with contractually in advance.

Mediation, arbitration and collaborative law are all available.

Mandated ADR Methods

There is scope for the court to order parties to attend mediation – it is rarely used, less so successfully, and there is no penalty for non-compliance.

Status of Agreement Reached via Non-Court Process

If in the form of a registered minute of agreement, an agreement reached via a non-court process has the force and effect of court orders and can be enforced as such.

Jurisdictional Grounds

In actions relating to children (including parental responsibility, residence and contact actions), jurisdiction is established through the child’s habitual residence in Scotland or, in the case of an emergency, through their presence in Scotland. If an action is raised in the sheriff court as opposed to the Court of Session, then the child must be habitually resident within the geographical boundary of the sheriffdom.

Domicile, Residence and Nationality

As in “Jurisdictional Grounds”, jurisdiction in actions relating only to children is primarily based on the habitual residence of the child.

Should issues of parental responsibility arise in the context of other legal proceedings such as a divorce, the court seized for the divorce is also able to make orders in relation to children and their care even though they are not resident in Scotland.

In cases where a litigation has concluded and final orders are granted in relation to parental responsibility, should a party seek to revisit or vary the orders granted, they must do so with an application to the court which granted the final orders.

Application to Court

Either parent can apply to the court for a residence order, regulating the arrangements for where and with whom a child should live, or for a contact order, regulating the arrangements for maintaining personal relations and direct contact with a child.

Before the court will grant an order, the sheriff or judge needs to be satisfied that:

• firstly, the proposed order is in the best interests of the child; and
• secondly, it would be better for the order to be made than no order at all.

Beyond that, the sheriff or judge must take into consideration the views of any child, provided that the child is capable of expressing a view.

Legal Approach to Custody and Parental Responsibility

In Scotland, mothers have automatic parental rights and responsibilities (PRRs) regardless of their marital status. If the father was married to the mother at the time of the child’s birth, he too has automatic PRRs. Unmarried fathers obtain PRRs if they are registered as the father on the child’s birth certificate or obtain an order via the court. 

Under the Children (Scotland) Act 1995, parental responsibilities include the responsibility to safeguard and promote their child’s health, development and welfare and the responsibility to provide guidance and direction. A parent is also responsible for maintaining contact with their child. Parental rights mirror the responsibilities, and their function is to enable parents to fulfil their parental responsibilities. A child is defined as a person under the age of 18, but most PRRs only apply to a child who is under the age of 16, except the responsibility to provide guidance. Most court orders cease to apply when a child turns 16.

In Scotland, there is no concept of custody and access, but rather residence and contact. There are no presumptions in relation to an equal division of time between separated parents but the generally held view in Scotland is that a child should enjoy a meaningful relationship with both parents. Accordingly, it is common for a child to reside with one parent and have contact with the other.

A parent may not remove a child from the UK without the consent of the other parent or a court order allowing the child to be removed.

Restrictions on the Court

The court can make any order as it sees fit, including residence, contact and orders granting or restricting PRRs, so long as the order is in the best interests of the child and it would be better for the child to make the order than make no order. Specific-issue orders can regulate aspects of a child’s life including schooling and medical treatment.

Child Maintenance

Child maintenance is a sum of money paid to the parent with whom the child resides (whether by agreement or by court order) by the other parent regardless of whether the parents are married.

Child maintenance can be agreed via a private arrangement between parents or, where all parties reside within the UK, administered through the Child Maintenance Service (CMS), which is a government scheme. If parents use the CMS to calculate an appropriate amount of maintenance, then a statutory formula is applied. This is calculated as a percentage of the “non-resident” parent’s (the parent with whom the child lives less frequently) gross weekly income, minus any pension contributions. An adjustment is made to take account of the number of nights that the child lives with the non-resident parent each week. When childcare is shared exactly equally between parents, no child maintenance is payable.

In Scotland, the CMS has exclusive jurisdiction for assessing and enforcing payment of child maintenance where both parents and the child live in the UK, and the child is under the age of 16 or 19 if they remain in full-time, non-advanced education. If parties cannot agree an appropriate amount of child maintenance, then, in most situations, the only remedy is to apply to the CMS for an assessment. The CMS has wide-ranging powers to investigate the non-resident parent’s income.

Parents have the ability to agree an amount of child maintenance between them and for that amount to be recorded in a contract to be enforced as required. After one year from signing such a contract, either party can apply to the CMS for an assessment that would override the amount agreed in the contract.

Where all parties are in the UK, the CMS has exclusive jurisdiction to determine child maintenance. There are, however, limited situations where a court can make an order, as follows.

• The court can make a top-up order when the CMS maintenance calculation demonstrates that the paying parent’s gross income exceeds GBP3,000 per week from all sources.
• The court may make an order where the CMS does not have jurisdiction because one or more parties reside outside of the UK.
• From the age of 16 to 25, a child can bring a claim for maintenance in the court against one or both of their parents directly, provided they are undergoing full-time, advanced education, such as studying at university.
• The court can make a freestanding or top-up order when the child has expenses attributable to a disability. This is determined on a case-by-case basis and takes into account expenses such as the costs of a carer or the cost of an adapted home.
• An order can be sought from the court to cover educational costs, such as private school fees.

When making any of the above-mentioned orders, the court will consider the needs of the resident parent, the resources of the non-resident parent, and generally all circumstances of the case.

Children can make a claim against their parents if they have reached sufficient age and maturity, which is deemed to be 12. Young adults up to the age of 25 may make a claim against their parents, provided they are undergoing trading or education. The courts will make an award based on needs, resources, and all circumstances of the case.

Courts’ Power in Cases of Disagreement

In circumstances where parents disagree about a particular issue in relation to the upbringing of their child, either parent can apply to the court for a specific issue order under Section 11(2) of the Children’s (Scotland) Act 1995 to determine the matter in dispute. By way of example, if parents disagree about what school a child should attend, the court has the power to make an order in respect of the child’s schooling. As with all child-related matters that come before the court, the welfare of the child is the paramount consideration for the sheriff or judge.

Parental Alienation

Parental alienation is not a term that is defined in Scottish family law, but practitioners are increasingly seeing the issue raised in high-conflict parenting disputes. It is commonly used to describe a situation where a child rejects their parent, often displaying extreme negativity towards them, which is allegedly the result of psychological manipulation by the other parent. Often the child or the aligned parent will offer a variety of reasons to justify the child not wanting to have contact with their other parent, such as domestic abuse concerns.

When making an order in respect of a child, the sheriff or judge’s paramount consideration is the welfare of the child. In addition, the sheriff or judge must consider a range of factors, known as the welfare checklist, before making an order. The factors include ascertaining the wishes and feelings of the child concerned as well as the need to protect the child from abuse.

The decision about whether or not a child has been alienated is a question of fact for the sheriff or judge to determine at a proof. Often in cases where parental alienation is alleged, the sheriff or judge will appoint an independent expert, such as a child psychologist, to investigate and report to the court the underlying issue for the child and for the parents, and possibly make recommendations for contact. Although an independent expert’s report is not determinative, it is often of assistance to the sheriff or judge in understanding the reasons for the child’s rejection and reaching a decision on what is in the best interests of the child.

Children’s Evidence

Children can give evidence in court ‒ although it is uncommon in family law cases, as children should be shielded from their parents’ dispute as far as possible. If a child is called as a witness and they are under the age of 16, they would be classed as a vulnerable witness and special measures can be used to help the child give evidence. This includes taking of evidence remotely or by a live link, use of a screen, or assistance from a supporter in court. 

Mechanisms Outside the Court Process

ADR refers to several different methods used to resolve disputes other than applying to court. The following are the most commonly used types.

Mediation

This is a popular method used by many separated parties to resolve both the financial aspects and childcare disputes arising from their separation. It is a voluntary process whereby an independent third-party mediator channels a discussion between the parties, which can be extremely useful in helping them to understand the other’s perspectives. If parties reach agreement at mediation, they would be encouraged to instruct their own solicitors to prepare a minute of agreement on their behalf, reflecting the terms agreed.

Arbitration

This is a voluntary process where both parties have legal representation, but they appoint a private judge, known as an arbitrator, who is a specialist-trained family lawyer affiliated with the Family Law Arbitration Group Scotland (FLAGS), to adjudicate upon their case. Both parties will put their arguments to the arbitrator, who will make a decision that is legally binding on both parties.

Collaborative law

This is a process whereby both parties appoint a solicitor who is collaboratively trained. The parties and their respective solicitors have a series of non-adversarial, roundtable meetings to discuss settlement. At the outset of the case, all parties contract to resolve all issues without resorting to court, so as to ensure all are fully engaged with the process.

ADR Methods Mandated by Court

Parties cannot be compelled to engage in ADR prior to raising a court action. However, in court actions involving a child, a sheriff or judge may, at any stage, refer the action to mediation ‒ although compliance is not compulsory.

Status of Agreement Reached via a Non-Court Process

If agreement is reached at mediation or using the collaborative process, the parties will be encouraged to instruct their solicitor to embody the terms of settlement into a minute of agreement, which is a legally binding contact that, once registered, has the effect of a court order. In arbitration, any decision of the arbitrator is legally binding on the parties.

Requirements Imposed by Statute

ADR is a voluntary process in Scotland. Parties cannot be compelled to engage in it.

Media and Press Reporting

The principle of open justice is enshrined in Scots law and, other than in specific and limited circumstances, the media will be allowed to attend and report on cases. That said, the general principle can be departed from where an order restricting reporting is made, which is particularly common in child law cases.

Where proceedings involve a child, it is open to solicitors to move the court in terms of Section 46(1) of the Children and Young Persons (Scotland) Act 1937 to make an order that the child or children must not be capable of being identified in newspaper reports.

As per financial proceedings (see 2.8 Media Access and Transparency), no such order is required in respect of a child concerned in exclusion order proceedings by virtue of Section 44 of the Children Scotland Act 1995. Likewise, Section 182 of the Children’s Hearings (Scotland) Act 2011 makes provision for a child involved in a children’s hearing or other proceedings under the Act. In both cases, the relevant sections simply provide that any publication that could identify such a child is prohibited.

Similarly, adoption and permanence proceedings are heard and determined in private in accordance with Section 109 of the Adoption and Children (Scotland) Act 2007, unless the court decides otherwise.

Where the relevant reporting restrictions do not automatically apply by operation of statute (as set out earlier), parties may prevail upon the court’s general discretion in terms of the Contempt of Court Act 1981 – Section 11 of which empowers the court to prohibit publication of a name or a matter in connection with the proceedings. Any such order must, however, be sent to any interested person, which will include the press, and must be published on the Scottish Courts and Tribunals website. This may have the unintended consequence of drawing their attention to an action that might have otherwise proceeded unnoticed.

Anonymising the Child

Prior to the publication of a judicial opinion, there exists the opportunity for a sheriff or judge to anonymise an opinion – for example, by using initials instead of a person’s name. This commonly happens in family law judgments, particularly in cases involving a child.

The effect of such a step is not the same as an order restricting reporting. The media will still be able to report the proceedings (unless the media is prohibited because an order in terms of Section 46(1) of the Children and Young Persons (Scotland) Act 1937 has been granted). However, it does allow for other personal information to be excluded from the opinion where it is not, in the eyes of the judicial office holder, relevant to the decision or necessary for the purposes of pronouncing judgment.