Learning Zone - The Court of Session

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Quick facts

As these records can contain sensitive personal information, many are closed to public inspection for 100 years. For access to more recent records please consult the National Records of Scotland.

Within the Court of Session records are a variety of what we could call civil court cases. For example, we find people being pursued for unpaid debts. We also find divorce cases and other matters relating to marriage and separation, as well as cases relating to the guardianship of children.

Please note the Register of Deeds (or Books of Council and Session), although created by the Court of Session, has been kept in separate registers for much of its history and is indexed separately. Please see our Learning Zone page The Register of Deeds for more information.

Adoption records were also dealt with by the Court of Session, but as adoption was not recognised by law until 1930 and subsequent records that were created are closed for 100 years we will not discuss them in this guide and they do not form part of our index.

For criminal court records, please see our High Court guide.

What types of cases will I find in the Court of Session Records?

Many cases relate to financial and business matters, naming a vast number of individuals. There are cases, however, which hold special interest for the genealogist. Cases including divorces and other matters regarding marriage and legitimacy were heard by the Court of Session. Another type of case involved the appointment of tutors. In this sense a tutor was not someone who taught a child mathematics or biology, but rather a legal guardian. If a child’s father died (or indeed both of their parents) they may have needed a guardian to care for them as individuals, and also their assets. As you can probably already imagine, these are wonderful records if you are tracing your Scottish family history.

How can these documents help me trace my Scottish family tree?

It’s always good practice to look at any historical record that mentions your ancestor. Of course, some records are going to be more informative than others and that is also true when it comes to Court of Session records. Some cases are going to be more useful than others. For example, processes relating to a divorce are likely going to give you a lot more information about your family history than a case where a business pursues someone for an unpaid debt. In both, however, you may find useful gems.

In each case, a ‘designation’ for each of the parties concerned and any witnesses called will be given. In Scotland a ‘designation’ is the addition or description of a person. It was necessary to design or identify the parties, in such a way as to distinguish them from all others. This was done by setting down the title of nobility, or the name and surname of the party, with the addition of his or her estate, profession, trade, or place of residence. This is particularly useful in earlier periods. It’s not unusual for the designation to include the father’s name of a young person or a woman’s husband’s name.

To establish the facts of a case, details had to be given and this could mean gathering evidence from witnesses. The witnesses may have been family members, and where relationships are given, this can be crucial in establishing your family tree; especially before 1855 when civil registration of birth, marriage and death began.

Divorce and Separation

Although historically divorce and separation were much easier in Scotland than in England, it was still relatively rare for couples to divorce before the mid-20th century. It wasn’t until 1938 that cruelty became grounds for divorce but a couple could have a judicial separation prior to this. These cases are very useful to family historians as they will give useful genealogical information but also tell us why the marriage was troubled. Records of such separations can also be found in the records of the sheriff courts from 1907 onwards.

There were other reasons for judicial separation. Whatever the reason, the paperwork is very likely to tell you more about your ancestors and provide clues to your family history.

As any court case was expensive, many people separated without doing the paperwork and we may find our ancestors living with their parents without being married. However, in some cases people did get divorced so it is work checking the index. Many divorces from 1830 onwards are included.

Sequestrations

A sequestration is a process of bankruptcy (note that this is different from a sequestration for rent). If a person fell into financial difficulties and could not pay their debts, the creditors could take them to court. This could happen to an heir after they inherited an estate encumbered by debt. Whatever the timing, the records can be very useful to us as family historians but this is particularly the case if our ancestors inherited debts.

Unextracted Processes, Extracted Processes and the Register of Acts and Decreets

If you are familiar with Sheriff Court records, the term ‘Unextracted Processes’ will be known to you. The term ‘process’ refers to the paperwork associated with a court case. If a decree was extracted, i.e. a copy of the decree was created, a copy should also have been recorded in the Registers of Acts and Decrees (although whether this was actually done can vary depending on the time period). Following the extraction of the decree the processes (bundles of paperwork) were generally separated. This means that paperwork relating to cases which were extracted are known as ‘Extracted Processes’ cases where an extract was not created would be known as an ‘Unextracted Processes’.

Other Court of Session material not indexed

Our index builds on the cataloguing work done by the National Records of Scotland. As of September 2023 our index does not include all records catalogued by the National Records of Scotland. If an entry you are looking for is not in our index please search their catalogue.

Not all Court of Session cases have been indexed by us or individually catalogued by the National Records of Scotland. If you have a source pointing to the Court of Session, such as a newspaper entry, please get in touch and we can help you locate the record.

If you do not have a source pointing to the Court of Session but have reason to believe there may be a case or want to make a speculative search we may be able to help you with one of our research packages. In time we aim to index more records.

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