Divorce in Scots Law: Available Since the Reformation

Each major claim carries one of three labels. established means supported by primary records, official bodies or several independent reliable sources. shared means the core fact is sound but sources disagree on details, dates or interpretation. traditional means widely repeated but not traceable to a primary or independent source.

The historical study of Scottish divorce owes much to the work of Leah Leneman, who analysed the records of the Commissary Court. Numbers of divorces in early centuries were small by modern standards.

The Reformation

established Before 1560, the Catholic Church in Scotland, as elsewhere, regarded marriage as a sacrament that could not be dissolved. A marriage could be annulled if it had never been valid, or the couple could be separated, but neither could remarry while the other lived. The Protestant Reformers took a different view, and from 1560 the courts began to grant divorce for adultery, allowing the innocent party to marry again. From 1563 these cases were heard by the Commissary Court in Edinburgh.

Desertion

established An Act of the Scottish Parliament in 1573 added desertion as a ground, where one spouse had deserted the other "obstinately" for four years or more. The procedure was complicated, but it gave a remedy to those abandoned by their partners.

Equal grounds

established Unusually for Europe, Scottish wives could divorce their husbands on the same grounds as husbands could divorce their wives. The historian Leah Leneman's study of court records showed that many people of ordinary means, including servants and tradesmen, sought divorce, and that women made up a large share of those who did.

England by comparison

established In England, the church courts could grant only separation or annulment. A full divorce allowing remarriage required a private Act of Parliament, which was expensive and almost always obtained by men. Only after the Matrimonial Causes Act 1857 could divorce be obtained through the courts, and wives had to prove adultery plus another fault until 1923.

Modern divorce

established In 1830 divorce cases were transferred to the Court of Session. The Divorce (Scotland) Act 1938 added grounds including cruelty. The Divorce (Scotland) Act 1976 made the irretrievable breakdown of a marriage the single ground, proved by adultery, unreasonable behaviour, desertion, or periods of separation (two years with consent, five without). The Family Law (Scotland) Act 2006 reduced these to one and two years and removed desertion. Sheriff courts gained jurisdiction in 1984, and a simplified procedure allows undefended divorces without lawyers in straightforward cases.

• Scots could divorce for adultery from 1560.
• Desertion became a ground in 1573.
• Scottish wives could divorce husbands on equal grounds.
• In England, divorce usually needed an Act of Parliament until 1857.
• Today, separation of one year with consent is enough for divorce.

• Myth: divorce was a privilege of the rich across Britain. In England it usually needed a private Act of Parliament until 1857 and was almost always obtained by men. In Scotland the courts granted it from 1560, and Leah Leneman's study of the records shows that servants and tradesmen sought it, with women making up a large share.
• Myth: divorce was common in early modern Scotland. It was open to husbands and wives on the same grounds, but numbers in the early centuries were small by modern standards.