This January marks the first anniversary of Scotland’s historic first same-sex marriages. The Marriage and Civil Partnership (Scotland) Act 2014 that made these weddings possible showed that family law is beginning to catch up with societal attitudes. However, there is still a lot of work to do.
One change that is currently being considered is the addition of a “blame free” option for divorcing couples. The “no fault” divorce Bill is sponsored by Richard Bacon MP and is due to receive its second reading on 11 March 2016. If enacted, this would allow a marriage or civil partnership to be dissolved if each of the parties have made a separate declaration that the relationship has broken down, and would not require the court to be satisfied of any other facts. There has been widespread support and praise for this proposal.
The most senior family law judge in England and Wales, Sir James Munby, has previously argued that divorce could be simplified to the point where it is handled by a registrar, rather than the courts. Baroness Hale has also voiced her belief that removing the need for couples to give evidence on the other’s unreasonable behaviour or adultery would facilitate a more constructive divorce process.
Resolution, a body of family lawyers dedicated to promoting non-confrontational divorce, have added, “A civilised society deserves a civilised divorce process.”
Getting Divorced in Scotland
To divorce in Scotland, you need to prove that your marriage has suffered an “irretrievable breakdown”. This can be demonstrated by living apart for one year if both partners agree to the divorce, living apart for two years, adultery or unreasonable behaviour. The only “blame free” option available is non-cohabitation. This is, at least, better than the situation in England and Wales where it is necessary for couples to have lived apart for at least two years before they can divorce in a blame-free manner.
What Harm Does Blame Do?
When most couples divorce, they want to do so in as quick, inexpensive and stress-free a manner as possible. Unfortunately, the need to blame one partner can make this very difficult.
The current divorce rules mean that a couple who want a “no fault” divorce in Scotland will need to wait one year to have all of their finances settled.
A couple may decide to speed up the process by using one partner’s unreasonable behaviour or adultery as the basis for the divorce. However, giving evidence about such personal matters can be extremely stressful. The partner who is being blamed may dispute the accusations that are being made and may feel that the other partner is also at fault. This can add further tension to the relationship between the separating couple and can make negotiations on finances and the children’s welfare difficult, or even impossible.
Eliminating blame from divorce could help to facilitate a more constructive and good-natured divorce process.
Molly McGrady is a legal writer based in Scotland writing about topics such as divorcing in Scotland.