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Friday 22 May 2015

Divorce and separation records

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.

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).

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).

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 cases

Before 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 mind

The 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 reading

C 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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