Mon 01 Mar 2021

Shifting the blame

Over the last year, there has been much in the media about what has been termed "no fault" divorce.  Couples might not realise that these new changes only apply to divorces in England and Wales, rather than in Scotland.  Despite that, there is arguably a better overall prospect of an amicable separation under the Scottish legal system.  

"No fault" in England

The Divorce, Dissolution and Separation Act 2020 is now passed, and seems likely to come into force in autumn 2021.  Until then, the current English law is that there is only one ground for divorce - irretrievable breakdown of the marriage - but there are five different ways in which that can be proven.  Three of these are "fault-based" grounds, being: adultery of the other spouse; "unreasonable behaviour" of the other spouse; and desertion.  The remaining two grounds are non-fault based, being separation for a period of two years if the couple both consent to the divorce; or separation for five years if there is no consent.

The new law will change all of this.  Once in force, one or both of the spouses will be able to apply for divorce, simply by sending a statement to the court noting that the marriage has irretrievably broken down.  No reason need be given for this.  A minimum of 6 months after that statement is with the court, divorce will be granted - although this might be delayed if the financial matters are not yet resolved between the spouses. 

No change in Scotland

Divorce procedure in Scotland will remain quite different, having been updated back in 2006.  In Scotland, the ground of divorce remains irretrievable breakdown of the marriage, with four ways of proving that: adultery of the other spouse; unreasonable behaviour; one year's separation if both spouses consent; or two years' separation if there is no consent.  None of this has any bearing on how the finances are divided - other than in exceptional cases, the reason for the breakdown of the marriage, and whose fault that might be, is not relevant to how the assets are split. 

There are other major differences between the Scottish and English systems, which impact on how couples go about getting a divorce.  In Scotland, all disputes relating to money and children must be dealt with first, before the couple can get divorced.  Because of this, in most cases, there is no rush to lodge divorce proceedings - instead, the couple will focus on negotiating how finances and childcare arrangements will be sorted.  Once financial matters are agreed, these can be recorded in a written agreement between the couple.  If registered, this is binding and enforceable in the same way as a court order.  What most separating couples are concerned about (and argue about) are the important issues - the money and the children.  Once these are resolved, then (unless one ex wishes to remarry) there is usually no rush to get the decree of divorce itself.  That can instead be applied for using either the one or two year separation grounds. 

The usual order of dealing with things is quite different in English cases.  One reason for this is that a binding agreement about dividing the finances can only be made by the court in England, and only once "decree nisi" (the first stage of the divorce process) has been reached.  Because of this, divorce proceedings are often issued much early in the separation process in English cases - which means that the majority of English divorce cases currently rely on either adultery or unreasonable behaviour, being 60% in 2015.  In Scotland, this proportion was only 6%. 

The rules for Scottish financial provision on divorce are also clearer and more predictable, compared to the very discretionary rules in England, which tends to encourage Scottish couples to negotiate rather than litigate. 

Accordingly, the pressure to move to "no fault" divorce in England just isn't something that affects most separating Scottish couples.  And although English fault-based grounds will soon go, English discretionary rules about the financial split, and the rush to court, will remain the same.  For couples who have links on both sides of the border, perhaps more change is needed in England, rather than Scotland. 

First published in The Scotsman 

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