No-fault divorce – how does it compare to the system in Scotland?

7 April 2022

The long awaited “no-fault divorce” has finally become a reality in England and Wales following the Divorce, Dissolution and Separation Act (2020) coming in to force on 6 April. This brings with it significant changes to the way in which married couples separate in this jurisdiction, all with the aim of reducing the opportunity for conflict.

Whilst there has been a high level of media coverage on this reform of the law, separating couples may be unaware that these changes relate only to those divorcing in England and Wales, and not to those divorcing in Scotland. In this blog I will consider the key differences between the current Scottish and English systems, and discuss whether there might be any benefit to further reforming the system in Scotland.

The introduction of No-Fault Divorce in England and Wales


My colleagues, Rachel Freeman and Cate Maguire, have written about the recent changes to divorce law in England and Wales, which took effect on 6 April 2022, and which will allow couples to divorce without placing blame on their spouse. 

What is the position in Scotland and how does it compare to the new law in England and Wales?


It is important to first consider the history of divorce law in both Scotland and in England and Wales. Prior to law reform in Scotland in 2006, the systems for divorce in these two jurisdictions were consistent. The sole ground for divorce in both jurisdictions was the “irretrievable breakdown” of the marriage, which had to be proved by one of the following five facts:

  • Adultery of the other spouse
  • Unreasonable behaviour of the other spouse
  • Desertion for 2 years or longer
  • 2 years separation with the consent of the other spouse
  • 5 years separation without the need for consent of the other spouse.

In 2006, Scotland amended these five facts to remove desertion completely and to reduce the periods of separation to 1 year (with consent) and 2 years (without consent). There was no such reform in England and Wales, and the law remained the same until the introduction of no-fault divorce this week. There are no further reforms to the Scottish system currently in the pipeline.

The key differences between the two current systems can be broadly summarised as follows:

The law in England from 6 April 2022 The law in Scotland since 2006
The sole ground for divorce is the “irretrievable breakdown” of the marriage. The sole ground for divorce is the “irretrievable breakdown” of the marriage.
No proof of fault is required, only a statement filed with the application for divorce stating that the marriage has broken down irretrievably.
Proof of irretrievable breakdown is required. This must be either
  1. adultery of the other spouse
  2. unreasonable behaviour of the other spouse
  3. 2 years separation without the consent of the other spouse
  4. 1 year separation with the consent of the other spouse.
There is no ability to contest the ground of divorce. In the absence of any other reason as to why the divorce should not be granted (such as lack of jurisdiction or invalidity of the marriage) the divorce will proceed once the mandatory time for reflection (a minimum period of 6 months) has elapsed. The divorce can be contested by the other party to the marriage by, for example, denying the alleged adultery or unreasonable behaviour took place, or disputing the date of separation.
The divorce application may be made by one spouse or both spouses jointly. The divorce application may be made by only one spouse.
Divorce and financial proceedings are very separate processes, save that the court cannot make a binding financial order until after the conditional order for divorce has been granted (this will take place at least 20 weeks from when divorce proceedings are initiated). A divorce can therefore be a standalone action, with the financial issues being dealt with many years after the divorce has been finalised. Divorce and financial proceedings are linked. Once divorce has been granted in Scotland the court can no longer make any financial orders in respect of that couple (save in very exceptional circumstances). The finances must therefore be resolved before the divorce has been finalised.

Would Scotland benefit from further reform?


Because in Scotland a couple must deal with all issues relating to their finances before the divorce is granted, couples north of the border are often in less of a rush to get the decree of divorce itself. Instead, couples usually take some time to process their separation and then spend time negotiating and agreeing the financial settlement. By the time the one year from separation mark arrives, many couples will have negotiated the finances and will therefore be in a position to proceed with their divorce on the basis of one year’s separation with consent. It is therefore fairly rare for a couple to divorce citing a “fault based” reason in Scotland, because there is usually simply no need to.

There are however cases in Scotland where one party to the marriage does not consent to the divorce, and therefore the only option for the party seeking divorce is to either cite unreasonable behaviour or adultery in order to proceed immediately, or wait until two years has elapsed to proceed without consent. Also, where a couple is unable to reach agreement in relation to the finances then litigation may be unavoidable. In Scotland, any financial orders must be sought as part of the divorce proceedings and so a spouse wanting to seek financial orders must either wait until the required period of separation has elapsed or cite adultery or unreasonable behaviour, thus increasing tensions further.

Therefore, whilst the fault based reasons for divorce are used far less frequently in Scotland today than they were in England and Wales prior to the introduction of no-fault divorce, there would certainly be a benefit to the introduction of a truly “no-fault” procedure for divorce in Scotland, similar to that which has been introduced in England and Wales.

FURTHER INFORMATION

If you have any questions about the issues raised in this or other blogs in this series, please contact a member of our family and divorce team

 

ABOUT THE AUTHOR

Rachel Cooper is an Associate in the Family Team. She is qualified to practise law in England and Wales and in Scotland and has experience in dealing with all aspects of private family law work in these jurisdictions.

 

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