No fault divorce – is it all it’s cracked up to be?

/=]-0 ,0= On 11^th March my fellow Partner Denise Laverty wrote about the upcoming changes to the divorce laws in England and Wales which will allow couples to divorce on a “no fault basis.

Denise analysed both the circumstances in which couples in Scotland may be able to use the new system; and what difference that might make to financial provision.

Will a no-fault divorce be missed in Scotland?

In today’s blog I am going to consider a different angle – namely, whether “no fault divorce” is something that we will really be missing out on here in Scotland come 6^th April.

To consider the position fully, it’s necessary to have a look at the history.  From the 1970s through to 2006, there was consistency between Scotland, and England and Wales, as to the basis upon which somebody could justify divorcing their spouse.  The grounds were, broadly:-

• Unreasonable behaviour;
• Adultery;
• Desertion for 2 years or more;
• 2 years’ separation with consent; or
• 5 years’ separation.

As will be seen from the above there were two “no fault” grounds available, but couples had to wait a long time post-separation to make use of them.

However, on 4^th May 2006 things changed for separated couples in Scotland. The timeframes for the “no fault” basis for divorce changed to 2 years’ separation; or 1 year’s separation with consent (as well as desertion being dropped as a basis for divorce).

But, a year is still a very long time isn’t it?  In short, not necessarily. This comes back to one of the points which Denise wrote about. In England and Wales, a divorce can be a standalone action with a couple getting divorced, and coming back to the court at a later stage to sort out the finances if they were incapable of being agreed.  By contrast, in Scotland, once a couple is divorced the court is no longer able to make orders (except in very exceptional circumstances) in relation to financial provision. This means that the finances either need to be resolved before a divorce action is raised; or if the finances cannot be resolved by Agreement then they must be resolved at the same time as Decree of Divorce being granted.

Certainly, there is the odd case where we see an extremely quick resolution by way of negotiated settlement. However, for the vast majority of couples, by the time they have each taken a breath to come to terms with the separation; engaged lawyers; vouching has been exchanged; and negotiation has taken place then more often than not the couple will be months down the line from separation before a financial settlement is reached and reflected in a binding Minute of Agreement.

It is usually then a fairly short hop, skip and a jump to the one year mark when the divorce can proceed on a “no fault” basis founded on one year’s separation with consent. The reality in professional practice therefore is that for the vast majority of couples in Scotland having to wait a year as opposed to being able to divorce on a “no fault” basis will be largely inconsequential. This is obviously very different to the position in England prior to 6^th April this year, where the minimum “no fault” period was 2 years.

However, where I see that the absence of a non-time based “no fault” could make a difference is the cases that cannot resolve by negotiation. As mentioned above, in Scotland either finances require to be resolved before a standalone divorce action is raised; or if financial orders are to be sought they must be sought in the context of a divorce action.

It does mean that in the very few cases where litigation over the finances becomes required, a spouse wanting to seek financial orders can either wait until the two year period from separation is up (because when raising divorce proceedings one cannot assume the other party will consent!) or has to found on either adultery (no easy task) or unreasonable behaviour.

Invariably, this can lead to statements requiring to be made about the other party’s behaviour in circumstances where for example, the parties are actually getting along fine but simply cannot find a way through to resolving the financial matters between them and two years is too long to wait.  Undeniably this can increase unpleasantness and tension unnecessarily, and I think this is where Scottish couples would see the real benefit of a “no fault” system.

If you would like further information regarding the topics discussed in this blog, please contact:

Sally Nash by email: snash@gilsongray.co.uk or by phone: 07487 802 488 / 0131 285 4793

Philippa Cunniff by email: pcunniff@gilsongray.co.uk or by phone: 07487 800 526  / 0131 285 4792

You can also visit our Family Law Team page by clicking here. 

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.