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The differences between divorce law in Scotland and England

There has been some discussion recently following the Supreme Court’s decision in July 2018 to refuse an application by a wife to divorce her husband after 40 years of marriage until they have been separated for a full five years, despite her complaint that the marriage was loveless and had long ago broken down. This case considered English Family Law and is useful to highlight the differences between the system down South and ours in Scotland.

There are two grounds for divorce in Scotland:

  1. that the marriage has broken down irretrievably; or
  1. in certain circumstances, where an interim Gender Recognition Certificate has been issued to either party after the date of the marriage.

Concentrating on the first ground, the irretrievable breakdown of a marriage can be established in one of four ways:

  1. if the party defending the action of divorce has committed adultery;
  1. unreasonable behaviour on the part of the Defender;
  • if the parties have not lived together for a continuous period of at least one year prior to the divorce action being raised AND both parties consent to the divorce; or
  1. if the parties have not lived together for a continuous period of at least two years prior to the divorce action being raised, even if the Defender does not consent to the divorce.

By far the most common grounds used are (iii) and (iv) above. It is almost always easier to prove that the parties have not cohabited for a certain period than it is to prove that one party has committed adultery or has acted in a sufficiently unreasonable manner. Proceeding on the grounds of adultery or unreasonable behaviour also requires “airing your dirty laundry in public” which can be embarrassing for both sides.

Further, if there are no children of the relationship aged under 16, the Simplified Divorce Procedure can be used where the grounds for divorce are one or two years’ non-cohabitation. The Simplified Divorce Procedure is far quicker and cheaper than the Ordinary Procedure, which would be required where the divorce is based on the grounds of adultery or unreasonable behaviour.

One year or two years can seem a long time to wait, particularly if someone has found out that their partner has been misbehaving. However, the majority of issues that arise from separation, such as contact with children or financial arrangements, can often be dealt with before divorce. It is very common for a Minute of Agreement (commonly referred to as a “Separation Agreement”) to be signed which will regulate all matters, leaving the divorce procedure, after the year or two years have passed, as little more than a formality.

The McKinstry Company Family Law team can help with both the Minute of Agreement and divorce proceedings. A final word of advice is this: if “Googling” divorce you should bear in mind the significant differences between Scots law and the law in England and Wales and don’t be put off by the numerous news reports of the recent Supreme Court judgment in which divorce was refused.

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