Will the impact of the new “no-fault” legislation to reform divorce law in England and Wales encourage Scotland to make a change?

Under new legislation, couples in England and Wales can now apply for “no fault divorces” under new government proposals. This will come into effect shortly.

Parties looking to divorce will simply need to write a formal statement stating that their marriage has broken down irretrievably either jointly (or one party can apply). This will abolish the requirement of proof and a minimum period of separation or consent by the other party. It will also remove the ability for one party to contest the divorce, which can delay proceedings. However, this does not apply to financial and child matters.

A 6 month minimum time period will be imposed from the date the application is made to the date the divorce is granted in order to allow an opportunity for the parties to consider reconciliation.

In Scotland, we have 4 grounds of divorce based on the irretrievable breakdown of the marriage by reason of:

• Since the date of the marriage, one of the parties has committed adultery;
• Since the date of the marriage, one of the parties has at any time behaved in such a way that the other party should not reasonably be expected to live with them;
• No cohabitation between the parties at any time during a continuous period of year after the date of the marriage and both parties consent to divorce;
• No cohabitation between the parties at any time during a continuous period of two years after the date of the marriage. Consent is not required on this ground of divorce.

If we adopt a similar system as the English courts are about to, then perhaps in this jurisdiction it will serve to ease tension and have less impact on the parties’ children. At the time of writing this article, the Scottish Government have no plans to change their position but perhaps the Scottish Law Commission in their review will look at the English system and invite consultation from family lawyers and beyond.

If you considering a divorce or separation and require expert help on the available options to you, please contact our experienced team on 0131 622 8477.