Formation and breakdown of marital relationships: An immigration and family law perspective

This is the second part of our three-part blog series exploring the unique dynamics of relationships, involving a foreign-national partner, particularly where children and assets are involved. 

In the first blog, we examined the formation of relationships – marriage, civil partnerships, visas, pre-nups, and the acquisition of assets. In this blog, we turn to separation and divorce in Scotland, and how these processes interact with immigration considerations.

Divorce in Scotland

In Scotland, divorce (or dissolution, in the case of civil partnerships) is the legal process that formally ends a couple’s relationship as spouses or civil partners.

A couple can divorce in Scotland when either:

1. One party is domiciled in Scotland, or
2. At least one spouse has been habitually resident in Scotland for one year before raising the divorce action.

Grounds for divorce

There are two grounds for divorce in Scotland: 

1. Irretrievable breakdown of the marriage, which is the most common ground for divorce.

This can be established through one of the following:

• One year of separation with the other spouse’s consent
• Two years of separation without the other spouse’s consent
• Unreasonable behaviour, to the extent that the other party cannot be expected to continue living with that person
• Adultery

2. Interim gender recognition certificate

This other ground of divorce is where either party to the marriage has been issued an interim gender recognition certificate. Where this is relied upon, the application for divorce or dissolution must be made within six months of the certificate being issued.

Date of separation

The first step in the divorce process is identifying the date of separation – the point at which the couple stop living together as spouses and regard the relationship as irretrievably broken. 

This does not necessarily mean that physical separation is required. Many couples remain under the same roof to help facilitate childcare arrangements or where it is not feasible for one of them to move out pending a financial settlement. 

In most circumstances, the date of separation will be agreed, or may be obvious. However, where the date of separation is disputed, factors that will be considered include:

• Sleeping in separate rooms
• Separately managing household tasks
• Cessation of sexual relations
• Presenting socially and to their family as separated
• Any written communication evidencing the breakdown

The date of separation is important for the following key reasons:

1. It starts the clock for the one- or two-year separation period needed for the time-based grounds of divorce;
2. Fixes the date at which the accumulation of matrimonial property stops accruing; and
3. Sets the date at which the matrimonial property is valued.

Separation agreements

Once the matrimonial property has been identified and valued, discussions can take place about how it is to be divided. In Scotland, each party should receive a “fair share” of the matrimonial property, the starting point being an equal share. However, arguments for unequal division can be made during the prenuptial or postnuptial agreements. 

When agreement is reached, solicitors should prepare a minute of agreement – a binding contract setting out the terms of the settlement which are to be implemented. This agreement should also discharge certain rights that remain by virtue of being spouses until divorce has formally been granted by the court. The agreement can be lodged in the Books of Council and Session, giving it the same enforceability as a court order where there are payment obligations within the agreement.

Some couples choose not to register the agreement for privacy reasons, but it should still include a clause allowing future registration if enforcement becomes necessary.

Immigration relevance

A separation agreement can be crucial for migrants on partner visas. For example, where a migrant and their British partner have a child, the agreement can evidence:

• the date of separation
• care and residence arrangements

This can support an application to switch to the parent of a British child visa route.

Court orders for financial provision

Where parties cannot reach agreement in respect of the division of their finances, the court can be asked to make financial orders as part of the divorce action. The court can order:

1. Payment of a capital sum
2. Transfer of property
3. Sale of a property
4. Pension sharing
5. Ongoing maintenance payments for up to three years post-divorce

The court must prioritise fairness, and given its wide discretion to achieve this, couples are usually advised that litigation should be a last resort.

Granting of divorce

Once a ground for divorce is established, and the financial and childcare matters are resolved (either by agreement or by order of court), the court can then formally grant the divorce or dissolution.  

Where the court is not being asked to make financial or childcare orders, the divorce action generally proceeds under one of the time-based grounds and proceeds undefended without any need for anyone to physically go to court. If there are no children under 16, the simplified (“DIY”) procedure may be used. These routes to divorce are more cost-effective and time-efficient, generally being concluded within 8-12 weeks. 

Immigration implications

The date of divorce confirms that a partner visa is no longer viable. Migrants must notify the Home Office of this change and should consider alternative visa options before doing so.

Once notified, the Home Office may curtail the existing visa, usually giving 60 days’ notice.

Next in the series

In our final blog, we will cover child-related matters following separation, including residence, contact, and financial maintenance. We will also examine the immigration implications for a migrant partner and how divorce may affect their ability to remain in the UK.

If you would like advice on any aspect of your immigration or family journey – whether you are already married or planning to be – please contact Amna Ashraf or David Coutts, who will be happy to guide you through the process and ensure you are fully prepared.

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