No fault divorce

There has been much in the news about the change in the law governing Divorce in England to a ‘no fault’ based approach. The change to the law has come about after much campaigning, and has been hailed as the biggest shake-up of Divorce law (in England) for 50 years.

Part of the reform sees the time for which parties must be separated before either can apply for a divorce without an allegation of ‘fault’ reduced from five (without consent of the other party) and two years (with consent of the other party), to two (without consent of the other party) and one year (with consent of the other party). In Scotland, that reform was introduced in 2006.

Against that background, I thought it would be helpful to set out the current grounds for Divorce in Scotland. The spouse applying for the Divorce requires to show that the marriage has broken down irretrievably based on one of four grounds. These are as follows:

  1. One years’ separation, with the other spouse consenting;

  2. Two years’ separation, without requiring the consent of the other spouse;

  3. Adultery;

  4. Unreasonable behaviour.

For the purposes of 1 and 2, it is recognised that some couples require to remain living together for practical reasons following their separation. As long as they were not living together as ‘man and wife’ (or wife and wife/husband and husband in same-sex marriages), that time can still be counted as part of the one or two years of separation. Things like continuing to share a bed, go on holidays together and combine resources might be relevant in showing whether you were considered to be living together as ‘man and wife’, as well as the how third parties view the relationship e.g. family, friends, neighbours. If this is relevant to your circumstances, tailored advice will be provided as required.

For the purposes of 3, adultery is committed when a married person has voluntary sexual intercourse with a person who is not their spouse. It can only be committed between two people of the opposite sex. The court will need evidence of the adultery, which may involve engaging the services of a Private Investigator.

For the purposes of 4, the test is whether, since the date of the marriage, the other spouse has at any time behaved in such a way that the person making the application for Divorce cannot reasonably be expected to live with them. It can include mental or physical cruelty, including violence or abuse, and less obvious things like controlling behaviour.

Getting good advice is essential. The Drummond Miller family law team is extremely experienced in dealing with all aspects of family law including Divorce, separation and child-related matters. If you would like any further information or advice, please get in touch with our experienced solicitors in Edinburgh, Dalkeith, Musselburgh or Bathgate.