History
of divorce in Scotland
The Middle Ages
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.
The NAS has a few of
the officials' records for Dunblane, 1551-5, Stirling, 1548-52 and the court of
the Official Principal of St Andrews, 1541-53 (CH5/1-5). The decisions of the
latter were published as 'Liber Officialis Sancti Andree' (Abbotsford Club, 1845).
The
Reformation to 1830
After 1560 the Court of Session, and then from 1563
the Commissary Court of Edinburgh, exercised jurisdiction in consistorial cases,
i.e. 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 of 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.
1830
to the present day
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 of 1861 and the Divorce (Scotland) Act of
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 of 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.
Finding records of divorce
The records of most
divorces in Scotland are listed or indexed in some way and are relatively accessible.
Remember that in Scotland a married woman traditionally retained her maiden name,
so in the indexes and records she may be designated as 'Mary Smith, wife of John
Jamieson', or 'Mrs Mary Smith or Jamieson'. The following information is a summary
guide to records in the NAS and elsewhere. Further information on how to search
records in the NAS can be found in Tracing
Your Scottish Ancestors.
1563-1800
A list
of divorce and other cases can be found in The Commissariot of Edinburgh - Consistorial
Processes and Decreets, 1658-1800, ed. Francis J Grant (Scottish Record Society,
1909). It is indexed only by pursuer. The references and dates of cases refer
to the relevant volume of decreets, i.e. judicial decisions (CC8/5), and/or the
case papers (CC8/6). A few case papers from 1580 and 1624 are unindexed (CC8/6/1).
1801-1830/5
The
index to persons (CC8/6/176) and the fuller case lists (CC8/20/6) allow a search
for a case in the decreets (CC8/5) and processes (CC8/6).
1830/5-1984
From 1935 to 1984, individual divorce cases are listed in our electronic catalogue and can be found by searching for either party involved in the action. From 1830/5 to 1934, the printed general minute books of the court (CS17/1) lead to card indexes and bound indexes to the cases. Case papers can be either 'extracted' or 'unextracted' processes. For extracted processes the judge's verdict can be found in the Register of Acts and Decreets (CS45), using the last date for a case in the minute book. Note that if children are involved in a divorce, the case papers are normally transferred to the NAS only when the youngest has attained the age of 16, so you may have to search through the indexes on this basis. Sometimes the letter 'R' is used alongside entries to show that case papers were 'Retained', while in others the eventual year of transmission is shown in round brackets. Many of the cases involving children are extracted processes.
1984 to
the present day
From 1 February 1984 the General Register Office for Scotland has kept a Register of Divorces. The Register is indexed alphabetically and you can obtain a copy of an entry, known as an extract. From this date, the vast majority of divorce cases have been heard in sheriff courts rather than the Court of Session. Sheriff Court records are not transferred to the NAS until they are at least 25 years old, so we would recommend that you contact us in advance of any visit to check whether we hold the case papers or whether they are still held by the sheriff clerk. If a divorce was heard in the Court of Session, the papers remain with the Court for up to six years after the conclusion of the case (or longer for those involving children, as noted above), before being sent to the NAS. Those transmitted to the NAS are listed in our electronic catalogue and can be found by searching for either party involved in the action.
Finding
records of separation and other casesBefore cruelty became a ground for divorce
in 1938, judicial separation was one of the main legal remedies. Separation has
continued to be resorted to by those with religious objections to divorce. Separation
cases before 1907 can be found in the same way as divorce cases in the records
of the Court of Session (CS). After 1907 the sheriff courts heard separation cases,
and the records may be found among the civil court processes and the registers
of extract decrees (SC), which are generally unindexed. Since the nineteenth century
other legal proceedings, such as actions for aliment (the support or maintenance
of the spouse and or children), were heard in sheriff courts, since these actions
concern debt, not personal status. From 1907 the sheriff courts also heard cases
of separation and aliment, adherence and aliment, and custody of children.
Special
points to bear in mindThe NAS staff will only search for a case for which
the year, the name of the pursuer, and preferably also of the defender, are provided.
We will not make speculative searches of the indexes on the basis of vague information.
If you only know the name of the defender, remember that as some indexes
only list pursuers, you will need to make a speculative search in person or by
proxy.
The NAS can copy divorce records, if their condition allows, but cannot
produce 'certified' extracts. This can only be done by the court.
Further
readingC J Guthrie, 'The History of Divorce in Scotland', Scottish Historical
Review, VIII (1911)Ronald D Ireland, 'Husband and Wife: Divorce, Nullity of
Marriage and Separation', An Introduction to Scottish Legal History (Stair Society,
1958) Leah Leneman, 'Disregarding the Matrimonial Vows: Divorce in Eighteenth
and Early Nineteenth Century Scotland', Journal of Social History, 30, no.2 (1996) Leah
Leneman, Alienated Affections: The Scottish Experience of Divorce and Separation,
1684-1830 (Edinburgh, 1998) F P Walton (ed.), Lord Hermand's Consistorial
Decisions, 1684-1777 (Stair Society, 1940) |
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