Streamlining divorce?

Justice Munby, the most senior family law judge in England and Wales, has today released his most recent views on practical aspects of family law within the English and Welsh court system.

His statement addresses a number of issues, but of particular interest is his call that in order to make the court system more efficient, there should be a greater separation between resolving financial aspects of family cases and the actual divorce/dissolution itself. It could be suggested however that what makes the process more efficient in Scotland (at least in the eyes of this dual qualified lawyer) is that in this jurisdiction these two aspects are inextricably linked.

In Scotland, as soon as a couple are divorced, then the Scottish court no longer has jurisdiction (except in very limited circumstances) to make any orders in relation to financial provision. As a result, in the vast majority of cases the parties will negotiate a financial resolution first, and incorporate the deal into a binding contract which, when registered in the Books of Council and Session, will have the force of a court order. The divorce is a final formality. Where there are children under 16,  getting divorced is slightly more protracted as the court needs to be reassured that the care arrangements for any children are satisfactory. Where there are no children under 16, parties can use a simplified “tick the box” procedure which is quick, efficient and cost-effective. The burden on the courts in respect of either type of undefended action is relatively minimal.

In the rare cases where parties cannot agree finances, then an action for divorce or dissolution will be raised in which the financial claims will also be made. The court’s focus is resolving the finances – the divorce is granted effectively as a side bar when the court makes it’s financial orders.

In short therefore, either a couple will divorce on an undefended basis without having troubled the court at all about financial provision (unlike in England and Wales, the Scottish court makes no enquiry into financial provision if the parties have agreed it) or the Scottish court will deal with the actual divorce as a relatively minor part of a court action which is mainly about financial provision – the key point being that in those cases, it is all one action.

There are some other advantages that the Scottish system has which assists with the perception of efficiency comparative to our Southern neighbours. Firstly, there is much less room for discretion in respect of financial provision than in England and Wales, and that adds to why fewer cases need judicial intervention.

The basis for divorce in the two jurisdictions also differs. There is a commonality in terms of it being possible for divorce to be based on unreasonable behaviour or adultery, but the big difference comes in the “no fault” arena. In Scotland, divorce can be founded on one year’s separation if the other party consents; or two years separation where no consent is then necessary. The equivalent time periods in England and Wales are 2 years and 5 years, which makes the use of unreasonable behaviour and adultery much more common and must in turn add to the administrative load.

Family law in the two jurisdictions is so different – both substantively and procedurally – that a procedural system in England and Wales more akin to our own seems unlikely. Indeed, on the basis of Justice Munby’s comments, it looks like we might be moving further apart. That is not to say however that the Scottish system is perfect – far from it. The other theme of Justice Munby’s thoughts was the importance of introducing an online system for divorce, and I am sure that this would be something (provided it worked of course!) which would be welcomed in this jurisdiction too. Only time will tell how the proposed changes to the family court system in England and Wales will impact on efficiencies south of the border, but it’s certainly something which Scottish family lawyers will watch with interest.

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

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