Sally Nash contrasts divorce regimes north and south of the border.
The Nuffield Foundation recently released a report which examined couples using unreasonable behaviour and adultery as a fall back in this way and concluded that its effect was causing couples to go through a “painful, and sometimes destructive, legal ritual”. The report by the Nuffield Foundation found that in 2015, 60 per cent of English and Welsh divorces were granted on the basis of adultery or unreasonable behaviour.
The basis for divorce in Scotland has not always been so different. The Scottish position mirrored the position in England until 4 May 2006, when it was changed by the Family Law (Scotland) Act 2006. As alluded to above, it is also not the case that “fault” based divorces are not part of Scots law. However, in this jurisdiction six per cent of divorces in 2015 were on the basis of adultery or unreasonable behaviour which is in stark contrast to the figures noted above for England and Wales.
Whilst evidently there are still a small number of cases where divorce actions are raised on the basis of unreasonable behaviour or adultery in Scotland, from experience that usually happens only where a divorce action needs to be raised urgently to resolve financial matters and the time based grounds are unavailable. In the vast majority of Scottish cases therefore, a financial settlement will be reached and couples will then progress to divorce based on one of the “no-fault” time based grounds.
Interestingly, in the report referred to above, the Nuffield Foundation was not suggesting that England and Wales should mirror the Scottish example, undoubtedly because our system is not “fault free”. However, the statistics and personal experience do, in my view, speak for themselves that where it is practical and appropriate for clients to use the “no-fault” grounds, most will and this in turn is better for the relationship between the parties, and perhaps even more crucially, for any children of the marriage. It is certainly to be hoped therefore that the momentum for change in England and Wales bears fruit.
- Sally Nash is a senior associate at Gilson Gray.