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No Fault Divorce

The possibility of a “divorce” between Scotland and England was discussed for much of 2014. There is therefore some irony that during 2015, the law on divorce could well be unified across the border.

In Scotland both parties to a marriage can agree to this coming to an end without having to say whose fault it was and, and after 12 month has passed, and all financial issues are tied up, this will be granted.

Now the Deputy President of the UK Supreme Court has called for the introduction of similar ‘no fault’ divorces in England and Wales as well.

Baroness Hale claimed the change to the law would make divorce cheaper and help to reduce the bitterness which so often accompanies family break-ups.

Although their legal systems use some of the same terminology, England and Scotland have always had different laws on marriage and currently divorcing couples south of the border must cite give reason before obtain a divorce – adultery; unreasonable behaviour; or desertion or separation for a period of at least two years. Unreasonable behaviour is the most common.

In contrast, in Scotland in 2012, only around seven per cent of divorces relied on accusations of unreasonable behaviour, whereas 25 per cent relied on the “no fault” separation with the c onsent of the other party to the marriage after one year apart. The most common ground was also on a “no fault” basis but after a period of two years apart, which doesn’t require consent.  

Lady Hale, the UK’s most senior female judge, says the law should allow couples intent on going their separate ways to declare their marriage has failed, with no specific reason having to be cited.

In a newspaper interview she said this would make divorce quicker, cheaper and less emotionally fraught. “You would make a declaration that your marriage had irretrievably broken down and if you were still of that view a year later, then you get your divorce. That’s that.”

As in Scotland, she would insist on a minimum one-year period to allow couples time to reconsider, as well as to try and reach agreements on the distribution of property and contact arrangements for any children of the marriage.

Her Ladyship said: “It should reduce cost and it would certainly reduce the need to produce a list of the other person’s failings which you have to do now on the most popular ground, which is the other party’s behaviour. That’s not a constructive way to start.”

*Contact Stephen Smith at ss@theglasgowlawpractice.co.uk