Does Scots law help or hinder divorce?

University of Glasgow lecturers Rosemary Elliot and Nughmana Mirza explore divorce and separation in Scotland today, with a focus on the challenges faced by Muslim women.

It is almost 50 years since the Divorce (Scotland) Act 1976 liberalised Scots divorce law in line with changes in England. The long-standing concept of matrimonial offence was replaced by that of irretrievable breakdown as the sole ground for divorce, including non-cohabitation as a way in which such breakdown could be proven. These changes were the culmination of more than two decades of inquiry, debate and campaigning.

The reform of the law was intended to end the hardships faced by people who were married in name only, particularly in cases where separated parties had formed new relationships and could not re-marry. Scots divorce law reform was followed in 1984 by the decentralisation of the jurisdiction for divorce from the Court of Session in Edinburgh to local sheriff courts. This was intended to make divorce more accessible and cheaper.

We know from the last census that around one in every four people who are no longer living with their spouse in Scotland are not divorced. This raises questions about the role of divorce in modern society, why people are not ending their marriages formally, despite being separated, and how much, if at all, this matters.

Regulating divorce

It is arguably the case that, as the grounds for divorce have been extended, the outcomes of the end of marriage have been increasingly regulated. Parties with children are required to have child arrangements agreed or ordered prior to divorce, a principle that has been in place in varying ways since 1958.

Financial provisions may also need to be agreed or ordered, dependent on circumstances, with the legal framework for this dating from 1985. Thus, for many couples, divorce can only be achieved after engaging in a legal process to resolve these issues, whether that is through a form of alternative dispute resolution or litigation.

There is no centrally held data, as far as we are aware, that helps us understand how these different legal aspects intersect, how long divorce takes, on average, or how much it costs. This is before we consider cultural and religious aspects, which may shape attitudes to and experiences of separation and divorce.

Real-life experiences

We conducted a pilot project which explored eight Muslim South Asian women’s experiences of separation and divorce in Scotland through interviews. This demographic focus emerged from our recruitment process, but we were also interested to understand the relationship between Scottish civil law and Islamic law in cases of divorce.

Much of the existing literature about Islamic divorce in Britain focuses on England and Wales and relates to the unequal position of women who have had a Nikah-only marriage, which is not registered.

Given that civil and religious marriage may be combined in one ceremony in Scotland, we were interested to know more about Muslim women’s experiences of divorce in Scotland. This matters because civil registration of marriage is highlighted in the literature as a means of ensuring Muslim women have a way of seeking a fair economic outcome should their marriage come to an end.

Several common themes emerged in our pilot study which spoke to some of the problems and inequalities that participants faced, despite all having a marriage registered in law. All the participants had been given or sought a religious divorce prior to the civil divorce process and four were stuck at some stage in the latter, in some cases for many years and/or within a context of domestic abuse.

We found that the women we interviewed had to engage in two divorce processes – religious and civil – where the withholding of divorce, financial exhaustion and the need to formally agree child arrangements exacerbated existing forms of coercive control.

Inequality and disempowerment

Participants shared that the religious divorce was done with a lack of consultation and support, within a context of community stigma towards being divorced. We found that the religious divorce process could be used to perpetuate coercive control and abuse, by inducing a state of uncertainty and limbo for women, as the process is unregulated and largely private.

Our interviews were carried out prior to the creation of a Sharia Council in Scotland, and in the cases where women themselves had sought divorce from abusive husbands, they had to travel to England for this. It remains to be seen how the advent of a Sharia Council in Scotland changes the experiences of religious divorce for Muslim women.

In terms of the civil process, participants faced issues with both the simplified and ordinary procedures. One such issue was (ex-)husbands refusing to engage with the procedure, whether simplified or ordinary, despite having initiated and concluded the religious divorce. This had considerable implications when it came to financial and childcare arrangements, meaning that divorce could not be concluded, but lack of engagement also delayed those using the simplified procedure and left women with the costs, in time and money, of resolving or attempting to resolve matters.

Here too the process could be actively weaponised as a means of control to hold women in marriages they wished to leave. But even where abuse was not overt, lack of engagement and stalled procedures caused financial and psychological distress. In some cases, women simply gave up their financial claims to progress the divorce and/or avoid conflict and escalating legal fees. Two participants had commenced litigation but discontinued this due to factors such as cost and the other party repeatedly failing to appear at court. Such was some participants’ dissatisfaction with the civil divorce process that they said they would only have a Nikah in future and not a civil marriage.

Investigating broader perspectives

We have now extended our research to explore legal, policy and practice perspectives on divorce and the related legal issues, with a particular focus on how the different elements relating to finance and child arrangements intersect (or not); the influence, if any, of religious and cultural aspects; and how domestic abuse is understood and/or responded to. We are interested in change over time and the role of case law.

The women who responded to our call for interviews in the pilot research had mostly experienced long and protracted divorces, even though this was not one of our recruitment criteria. Therefore, we are also interested to understand the extent to which participants’ experiences are representative within civil and religious contexts as well as why and when processes run more smoothly.

Given that marriage is said to offer legal protections in case of separation and divorce, this research matters to understand why people are not getting divorced, even though they no longer live together. The research also matters to better understand the ways in which financial and childcare issues intersect in the civil process, the role of religion and, potentially, the rise in cohabitation rather than marriage. 

If you are interested in learning more about this project and would consider being interviewed as part of the research, please contact Dr Rosemary Elliot (rosemary.elliot@glasgow.ac.uk) or Dr Nughmana Mirza (Nughmana.Mirza@glasgow.ac.uk).

The research is funded by the School of Social and Political Sciences, University of Glasgow, and ethical approval has been gained from the College of Social Sciences Ethics Committee.

Dr Rosemary Elliot is a senior lecturer in Economic and Social History in the School of Social and Political Sciences, University of Glasgow. She is currently working on the history of divorce in Scotland and its diaspora from 1830. She has published on divorce and child welfare in postwar Britain Suffer the Children? Divorce and Child Welfare in Postwar Britain - Rosemary Elliot, 2021

Dr Nughmana Mirza is a lecturer in Social Research Methods and Sociology in the School of Social and Political Sciences, University of Glasgow. Her most recent work focused on South Asian Muslim women’s experiences of domestic abuse and justice in Scotland: https://www.sccjr.ac.uk/publication/diversifying-justice-report-2025/