Family Lawyer Lesley Gordon discusses no-fault divorce, comparing the English and Scottish divorce systems in light of the UK Government’s open consultation on Reforms of the Legal Requirements for divorce.
Three months after the now infamous Tini Owens lost her Supreme Court challenge the UK Government finally announced an open consultation on Reforms of the Legal Requirements for divorce. The aim is to consider whether a ‘no-fault’ divorce system should be introduced in England and Wales.
Do we already have a ‘no-fault’ divorce system in Scotland? To a degree, we do in that since 2006 you could apply for a divorce in Scotland if you have been separated for one year (if both agree to the divorce) or 2 years where the other person does not consent to the divorce. The period of separation is the fact relied upon and no one needs to apportion blame or make any reference to the ‘unreasonable’ behaviour of the other. If one accepts that this constitutes a ‘no-fault’ divorce then England also already has a ‘no-fault divorce system’, so why the need for any reform?
The answer lies partly in the difference in the amount of time that you have to be separated in England – 2 years if both agree and 5 years if the other person does not consent to the divorce – and partly in the difference as to how and when divorce can be granted.
In England, it is the norm to apply for divorce as the first step in the process and the legislation allows for a divorce to be granted even where there has been no agreement or court orders determining how the matrimonial assets are to be divided. Such orders can be applied for after divorce. Under the current regime unless you are prepared to wait until you have been separated for at least 2 years in order to obtain your divorce you have to state that your spouse has committed adultery or behaved so unreasonably that you cannot be expected to live them with then i.e you have to apportion blame. In 2017 in England unreasonable behaviour was the most common reason for opposite-sex couples divorcing with 52% of wives and 37% of husbands petitioning on these grounds. It was also the most common reason for same-sex couples divorcing, accounting for 83% of divorces among women and 73% among men.
The statistics speak for themselves
In Scotland, such orders cannot be made by a court once divorce has been granted. It is the norm to try to reach an agreement on how the matrimonial assets are to be divided. If an agreement is reached then this is recorded in a contractually binding document called a ‘Minute of Agreement’ and once signed divorce can then be applied for. Negotiating and finalising such an agreement takes time, especially where the finances are complex and expert reports are needed or pension valuations take time to be produced. For most couples by the time they sign the Minute of Agreement they are close to, if not already past, the 12 month period after separation and in the majority of cases will agree to a divorce on the ‘no fault’ basis. In 2012-2013 only 7% of divorces in Scotland were based on unreasonable behaviour. If an agreement is not reached then divorce together with financial orders can be applied for.
The call for reform in England existed long before anyone had heard of Tini Owens. The statistics speak for themselves. Where such a high percentage of divorces rely on a fault-based basis how conducive is this to the separating couple being able to minimize the acrimony between them and consequently the impact this will inevitably have upon their children? As a collaborative lawyer and a family mediator, there is a definite advantage when helping couples reach an agreement on finances and the arrangements for their children when there is no underlying fault-based divorce action proceeding in the background.
The proposed reforms in England, however, go one stage further…
The proposed reforms in England, however, go one stage further and would completely the remove the current five facts and replace them with a system whereby one or both parties simply give notice to the court that the marriage has broken down irretrievably. They will not need to state any facts and there will be no opportunity to contest the divorce. The divorce would be granted in two stages, the first stage: a provisional divorce and the second stage: the final divorce. The proposals recommend a period of 6 months between stage 1 and 2.
Rather than look to the Scottish system of divorce the UK Government have looked further afield to other jurisdictions where similar divorce systems exist. Unlike the system we currently have, if the proposed reforms are enacted, it will create a truly no-fault divorce system and some will say the tables have been turned in that the English divorce system will then better serve the needs of a modern and family-friendly society.
Surely this is now the time to consider whether the Scottish divorce system should also be reviewed?