No fault divorce

Over the last few weeks there have been calls from many fronts for an introduction of “no-fault” divorce law in England and Wales, and this has included the Times newspaper spear-heading a campaign (backed by prominent legal figures) for an overhaul of certain aspects of English and Welsh family law, including the process for obtaining a divorce in that jurisdiction.

The argument highlights one of the many differences between Scots and English Law when it comes to divorce.  Like England and Wales, irretrievable breakdown of the marriage in Scotland can be established by adultery or unreasonable behaviour.  A significant difference however arises when parties wish to divorce on amicable grounds based purely on the length of time they have been separated.

In Scotland, if the other party consents to decree of divorce being granted, the parties only require to have been separated for one year to satisfy the requirements for divorce, or two years’ separation if the other party does not consent. In England and Wales, even if the other party consents, the parties require to have been separated for two years to establish grounds for divorce.  If the other party does not consent, the parties require to have been separated for five years before a basis for divorce has been established.

Understandably, even where a separation has been amicable, parties may not wish to stay married after separation for a minimum of two years so that the divorce can be on “amicable” grounds.  As a result, it is not uncommon in England that, in order to expedite the divorce, it will be agreed that one party will claim unreasonable behaviour or adultery.  In doing so however, that party will in the court documentation need to detail and direct criticisms at the other party.  While the “accused” party may well be prepared to go along with this for the purposes of expediting divorce, and indeed is often asked to approve the terms of the Court documents before they are filed, there can be no question that this process can increase acrimony in situations which are already tense, or create acrimony where there was very little before.

The Nuffield Foundation recently released a report which examined couples using unreasonable behaviour and adultery as a fall back in this way and concluded that its effect was causing couples to go through a “painful, and sometimes destructive, legal ritual”.  The report by the Nuffield Foundation found that in 2015, 60% of English and Welsh divorces were granted on the basis of adultery or unreasonable behaviour.

The basis for divorce in Scotland has not always been so different.  The Scottish position mirrored the position in England until 4 May 2006, when it was changed by the Family Law (Scotland) Act 2006.  As alluded to above, it is also not the case that “fault” based divorces are not part of Scots Law.  However, in this jurisdiction 6% of divorces in 2015 were on the basis of adultery or unreasonable behaviour which is in stark contrast to the figures noted above for England and Wales.

Whilst evidently there are still a small number of cases where divorce actions are raised on the basis of unreasonable behaviour or adultery in Scotland, from experience that usually happens only where a divorce action needs to be raised urgently to resolve financial matters and the time based grounds are unavailable.  In the vast majority of Scottish cases therefore, a financial settlement will be reached and couples will then progress to divorce based on one of the “no-fault” time based grounds.

Interestingly, in the report referred to above, the Nuffield Foundation was not suggesting that England and Wales should mirror the Scottish example, undoubtedly because our system is not “fault free”.  However, the statistics and personal experience do, in my view, speak for themselves that where it is practical and appropriate for clients to use the “no-fault” grounds, most will and this in turn is better for the relationship between the parties, and perhaps even more crucially, for any children of the marriage. It is certainly to be hoped therefore that the momentum for change in England and Wales bears fruit.

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For More Information Contact:
Sally Nash
Mobile: 07487 802 488
Direct Dial: 0141 285 4793
Email: snash@gilsongray.co.uk

Philippa Cunniff
Mobile: 07487 800 526
Direct Dial: 0131 285 4792
Email: pcunniff@gilsongray.co.uk

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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.