History of Divorce in Scotland
History of Divorce in Scotland
This history of divorce in Scotland covers:
Matrimonial cases at this period were dealt with by the bishops' courts, presided over by judges known as 'officials' or 'commissaries', with an ultimate right of appeal to the Pope. However, before the Scottish Reformation in 1560, divorce in its modern sense was virtually unknown. When marriages broke down, the remedies were either annulment or separation:
annulment meant that the marriage was invalid (usually because of an existing spouse or because the parties were too closely related)
separation meant that the parties were not required to live together and behave like husband and wife; in the eyes of the law, however, these people were still technically married.
We hold a few of the officials' records for Dunblane, 1551-55, Stirling, 1548-52 and the court of the Official Principal of St Andrews, 1541-53 (our reference CH5/1-5). The decisions of the latter were published as 'Liber Officialis Sancti Andree' (Abbotsford Club, 1845).
After 1560 the Court of Session, and then from 1563 the Commissary Court of Edinburgh, exercised jurisdiction in consistorial cases, that is, actions between husband and wife. Divorce was allowed in Scotland on the grounds of adultery from 1560 and on the grounds of desertion from 1573. In 1600 Parliament tried to outlaw the marriage of adulterers who subsequently married their lover, but the Act was easily evaded. Divorce on the grounds of cruelty was much more controversial, and separation was the usual remedy until the Divorce (Scotland) Act 1938. During this period Scottish matrimonial law took on a life of its own and much of the former church or canon law died away. Nevertheless, the effort and expense it took to obtain a divorce, combined with the prevalence of various types of irregular marriage, which ranged in type from the reasonably respectable to the downright dubious, acted together as a strong brake on the numbers of people seeking a formal dissolution of their marriage through the courts.
The Court of Session replaced Edinburgh Commissary Court in 1830 as the court with exclusive jurisdiction in cases of marriage, divorce and bastardy. In practice the Commissary Court continued to hear cases until 1835. Some of the less satisfactory procedures associated with divorce were abolished by the Conjugal Rights (Scotland) Act 1861 and the Divorce (Scotland) Act 1938.
During the twentieth century the grounds for divorce widened beyond desertion and adultery to include anti-social behaviour, cruelty and non-cohabitation. The Divorce (Scotland) Act 1976, which included the provision for divorce by mutual consent, is the current basis for divorce actions in Scotland. An important change took place in 1984, when sheriff courts were allowed to hear divorce cases. Almost all of the 12,000 or so cases of divorce each year in Scotland are now heard locally rather than in Edinburgh. At the same time, a less elaborate form of divorce known as 'simplified procedure' was introduced for actions that were undefended in the Court of Session.
Guthrie, C J, 'The history of divorce in Scotland' (Scottish Historical Review, VIII, 1911)
Ireland, Ronald D, 'Husband and wife: divorce, nullity of marriage and separation' in 'An introduction to Scottish legal history' (Stair Society, 1958)
Leneman, Leah, 'Disregarding the matrimonial vows: divorce in eighteenth and early nineteenth century Scotland' (Journal of Social History, volume 30, number 2, 1996)
Leneman, Leah, 'Alienated affections: the Scottish experience of divorce and separation, 1684-1830' (Edinburgh, 1998)
Walton, F P (editor), 'Lord Hermand's consistorial decisions, 1684-1777' (Stair Society, 1940)