When parents separate, divorce, or seek to annul a marriage or civil partnership, the court must consider both the legal termination of the relationship and the welfare of any children under 16. Section 12 of the Children (Scotland) Act 1995 sets out restrictions to ensure children’s interests are properly protected before a decree of divorce, separation or annulment is granted. Hence in an Unopposed Ordinary Cause Divorce the applicant is required to provide two Affidavits (from himself/herself and a third party) to show the children of the marriage will be looked after and that the divorce will not have a negative impact on the children.

The Court’s Duty in Divorce or Separation Cases

Whenever divorce, separation, or annulment is before the court, the Sheriff must consider:

  • What arrangements have already been made for a child’s upbringing, and
  • What proposals are being put forward for a child’s future care.

The court must then decide whether it needs to use its powers under Section 11 of the 1995 Act (residence orders, contact orders, specific issue orders, etc.), or under Section 62 of the Children’s Hearings (Scotland) Act 2011, before finalising the divorce or separation (read more about Section 11).

When Can the Court Delay Divorce?

The law recognises that children’s welfare comes first. A decree of divorce or separation may be postponed where:

  1. The court thinks it may need to make an order about the child under Section 11, for example, residence/contact etc may be required.
  2. The court is not yet in a position to make that order (perhaps more evidence is needed).
  3. There are exceptional circumstances making it better for the child if the divorce is not granted until those arrangements are resolved.

This means that, in rare but important cases, the court will delay finalising the divorce until it is satisfied the child’s welfare has been fully considered.

Who Counts as a “Child of the Family”?

For the purposes of Section 12, a child of the family includes:

  • A child born to both parties, and
  • A child treated by both parties as part of the family (such as a step-child).

It does not cover children placed with the parties as foster parents.

Why This Section Matters

Section 12 ensures that children are not overlooked during the legal process of divorce or separation. It stops situations where parents could end their marriage quickly without making sure children are properly cared for. Although postponement of divorce under this section is relatively uncommon in practice, the provision exists to emphasise that children’s welfare is paramount in family law.

Key Takeaway

If you are going through a divorce or separation in Scotland and have children under 16, the court will always consider the welfare of the children before granting the decree. This is dealt with by way of Affidavits from the applicant and a third party (not the ex wife or husband). In certain cases, the divorce may be delayed until the court is satisfied that suitable arrangements for the child are in place.

How XK Solicitors Can Help

At XK Family Law Solicitors Aberdeen, we regularly advise on:

  • Divorce and separation cases where children are involved. See our fixed fees.
  • Residence, contact and specific issue orders under Section 11.
  • Negotiating child-centred arrangements to avoid unnecessary delays in divorce proceedings.

If you are separating and have children under 16, contact us today for clear advice tailored to your family’s needs.

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Our articles are not legal advice. We accept no responsibility for use of this information.