Divorce in Scotland With a Child Under Sixteen
A child of the family under sixteen changes the divorce, but not in the way most people fear. It does not make the divorce contentious, it does not put your arrangements in front of a sheriff to be second-guessed, and in the ordinary run of things it does not add months. What it does is close off the cheap postal route and require the court to turn its mind to the child before granting decree.
This page sets out what actually happens, what the court has to do, what it costs and the one recent change that most published guidance in Scotland has not caught up with.
The Simplified Procedure Is Closed to You
The simplified, do-it-yourself divorce is only available where there is no child of the marriage under the age of sixteen. If there is, it does not matter how amicable you are or how settled the arrangements: the application cannot be made that way, and it will be returned if you try.
Your divorce has to proceed as an ordinary action. That means an initial writ rather than a form, and in practice it means a solicitor. Where the divorce is not defended and the arrangements for the child are agreed, it remains straightforward paperwork rather than a fight.
| No child under sixteen | Child under sixteen | |
|---|---|---|
| Procedure | Simplified, if nothing financial is outstanding | Ordinary action, always |
| How it starts | A prescribed form, posted to court | An initial writ, drafted and lodged |
| Court fee | £156 | £191, plus £82 when affidavits are lodged |
| Our fixed fee | £550 all in | £1,550 all in where undefended |
| Typical timescale | Eight to twelve weeks | Three to four months |
What the Court Has to Do About the Child
This is the part worth understanding, because it is the reason for the rule.
Section 12 of the Children (Scotland) Act 1995 provides that where a child of the family has not reached the age of sixteen, the court must consider, in the light of the information before it about the arrangements which have been made or are proposed for the child’s upbringing, whether to exercise its powers under section 11.
In the great majority of undefended divorces the court considers the arrangements, is satisfied, makes no order and grants decree. That is the normal outcome and it is what happens when parents have sorted things out between themselves.
There is a power to hold the divorce up. Section 12 also provides that where the court is not in a position to decide whether to exercise those powers without further consideration, and there are exceptional circumstances making it desirable in the child’s interests to do so, it must postpone its decision on granting decree until it is in that position. It is rarely used, but it exists, and it is the answer to the question of what happens when the arrangements plainly do not work.
What Orders the Court Can Make
Section 11(2) of the 1995 Act lists them. The two that matter in most divorces are a residence order, regulating with whom a child under sixteen is to live, and a contact order, regulating contact between the child and a person with whom the child is not living. The court can also make a specific issue order to settle a particular question, an interdict, an order about parental responsibilities and rights, and orders appointing or removing a guardian.
Two principles govern all of it. Under section 11ZA the court must regard the welfare of the child as its paramount consideration, and it must not make an order at all unless it considers that making it would be better for the child than making none. That second principle is why agreed arrangements usually result in no order being made. Nothing is being withheld from you; the law prefers parents to arrangements imposed by a court.
The Child’s Views: the Age of Twelve Rule Has Gone
If you have read anywhere that a child has to be twelve before the court will listen to them, that is out of date, and a great deal of Scottish guidance still says it.
Section 11(10) of the Children (Scotland) Act 1995 used to presume that a child of twelve or over was of sufficient age and maturity to form a view. Section 1 of the Children (Scotland) Act 2020 repealed the old provisions and replaced them, and it came into force on 21st September 2025 under SSI 2025/157.
The position now, under the new section 11ZB, is materially different in three ways.
There is no age threshold at all. The child is to be presumed capable of forming a view unless the contrary is shown. The presumption runs in the child’s favour whatever their age, and it is for anyone saying otherwise to displace it.
The court must give the child an opportunity to express a view. It is a duty, not a discretion to be exercised if somebody asks.
It must be done in a way that suits the child. The child is to be given the opportunity in the manner the child prefers, or in a manner otherwise suitable to the child. That is a real change from a form sent out to be filled in.
The court then has regard to any views expressed, taking account of the child’s age and maturity. So age has not become irrelevant; it has moved from a gate at the door to a matter of weight once the child has been heard.
In an undefended divorce with agreed arrangements this rarely becomes an issue. Where arrangements are disputed, it matters a great deal, and it matters most for younger children who would previously have been assumed to have nothing to say.
Child Maintenance Is Not Usually a Court Matter
People often assume the divorce settles the money for the children. Ordinarily it does not. Child maintenance in Scotland is generally dealt with by the Child Maintenance Service rather than by the sheriff, and the court’s jurisdiction to make an award of aliment for a child is limited where the Service has jurisdiction.
The practical consequence is that the divorce action deals with the arrangements for the child, and the regular financial support for the child is a separate track. There are exceptions, including agreed levels of maintenance recorded in a registered agreement, school fees and expenses arising from a disability. It is worth asking the question early rather than assuming the divorce covers it.
Financial Provision Still Has to Be Dealt With in the Divorce
Separately from the children, the money between the spouses has to be resolved in the divorce action itself. A capital sum cannot ordinarily be claimed once decree has been granted, and property transfer and pension sharing have to be dealt with in the action. Under section 9(1)(c) of the Family Law (Scotland) Act 1985 one of the principles the court applies is that the economic burden of caring for a child under sixteen after divorce should be shared fairly between the parties, so the children do bear on the financial outcome even though maintenance is handled elsewhere. See settling finances before you divorce.
What It Costs and How Long It Takes
An undefended ordinary divorce is £1,550 all in. That includes £273 in court fees and sheriff officer service, and there is nothing further to pay. Three to four months is normal where the action is not opposed and the arrangements for the child are agreed. The whole cost picture is on what a divorce costs in Scotland, and stage by stage timings are on how long a divorce takes.
Where the arrangements for a child are genuinely in dispute, that is no longer fixed-fee work. It becomes a contested action about a section 11 order, it is done by Rooney Family Law and charged for the time it takes, and we will tell you before any of it begins. See when a fixed fee cannot apply.
Frequently Asked Questions
Can I get a simplified divorce in Scotland if I have children?
Not if there is a child of the marriage under sixteen. The simplified procedure is closed in that situation regardless of how amicable the separation is, and the divorce must proceed as an ordinary action. If your children are all sixteen or over, the simplified route is available provided nothing financial remains outstanding.
Will a sheriff decide where my children live?
Usually not. Under section 11ZA of the Children (Scotland) Act 1995 the court must not make an order unless doing so would be better for the child than making no order at all. Where parents have agreed the arrangements, the court ordinarily considers them, makes no order and grants decree.
At what age will the court listen to my child?
There is no longer an age threshold. Section 1 of the Children (Scotland) Act 2020, in force since 21st September 2025, replaced the old rule that presumed a child of twelve or over could form a view. Under the new section 11ZB every child is presumed capable of forming a view unless the contrary is shown, and the court must give the child an opportunity to express views in the manner the child prefers. Age and maturity now go to the weight given to the views rather than to whether the child is heard.
Does having a child under sixteen make the divorce take longer?
It moves you from the simplified route to an ordinary action, so three to four months rather than eight to twelve weeks. It does not add delay beyond that where the action is undefended and the arrangements are agreed. The court can postpone decree where there are exceptional circumstances making that desirable in the child’s interests, but that is uncommon.
Does the divorce sort out child maintenance?
Usually not. Child maintenance is generally a matter for the Child Maintenance Service rather than the sheriff, and the court’s power to award aliment for a child is limited where the Service has jurisdiction. There are exceptions, including maintenance agreed and recorded in a registered agreement, school fees and expenses relating to a disability.
What happens when my child turns sixteen during the divorce?
The requirement bites on a child of the family who has not reached sixteen, so a child reaching sixteen changes the position. Whether it changes your procedure depends on the timing and on what else is outstanding, and it is worth asking rather than assuming.
Do both parents keep parental responsibilities after divorce?
Yes. Divorce does not of itself remove parental responsibilities or parental rights from either parent. They can only be removed by a court order under section 11, and the court will not make one unless it would be better for the child than making none.
How much does a divorce with children cost in Scotland?
An undefended ordinary divorce with us is £1,550 all in, including £273 of court fees and sheriff officer service, with nothing further to pay. If the arrangements for a child are disputed, the case is no longer a fixed-fee matter and is charged for the time it takes.
This page was written and reviewed by Brian Rooney, Managing Partner of Rooney Family Law, accredited by the Law Society of Scotland as a specialist in family law. Statutory references are to the Children (Scotland) Act 1995 as amended, including sections 11ZA and 11ZB inserted by section 1 of the Children (Scotland) Act 2020, which came into force on 21st September 2025 under SSI 2025/157, and to the Family Law (Scotland) Act 1985. Court fees are stated as at 1st April 2026 under the Sheriff Court Fees Order 2026 (SSI 2026/74). This page is general information about Scots law and is not legal advice on your circumstances.
Last reviewed: 8th September 2026.
Speak to Us
If there is a child of the marriage under sixteen and you and your spouse are agreed on the arrangements, this is straightforward work at a fixed price. An undefended ordinary divorce is £1,550 all in, court fees and sheriff officer service included, with nothing further to pay. If you are not certain which route applies to you, five questions will settle it.
