Better prospect of amicable separation with Scottish system - Lucia Clark

Over the last year, there has been much written about what has been termed "no fault" divorce. Couples might not realise new changes only apply to divorces in England and Wales, not Scotland. Despite that, there is arguably a better overall prospect of an amicable separation under the Scottish legal system.

Lucia Clark is a Partner, Morton Fraser

"No fault" in England

The Divorce, Dissolution and Separation Act 2020 is passed, and seems likely to come into force in autumn 2021. Until then, English law says the only ground for divorce is irretrievable breakdown of the marriage, but there are five different ways that can be proven. Three are "fault-based" grounds: adultery of the other spouse; "unreasonable behaviour"; and desertion. The remaining two grounds are non-fault based: separation for two years if the couple both consent to the divorce, or five years if there is no consent.

The new law changes this. Once in force, one or both of the spouses will be able to apply for divorce, simply by sending a statement to the court noting the marriage has irretrievably broken down. No reason need be given. A minimum of six months after that statement is with the court, divorce will be granted, although this might be delayed if financial matters are not resolved.

No change in Scotland

Divorce procedure in Scotland, updated in 2006, will remain quite different. The ground of divorce remains irretrievable breakdown of the marriage, with four ways of proving that: adultery; unreasonable behaviour; one year's separation if both spouses consent; or two years' separation without consent. None of this has any bearing on how the finances are divided. Apart from exceptional cases, the reason for the marriage breakdown, and whose fault that might be, is not relevant to how assets are split.

Other major differences between the systems affect how couples approach divorce. In Scotland, all disputes relating to money and children must be dealt with first, before a couple can get divorced. This means, in most cases, no rush to lodge divorce proceedings. Instead, the couple focus on negotiating how finances and childcare arrangements will be sorted. Once financial matters are agreed, these can be recorded in a written agreement. If registered, this is binding and enforceable in the same way as a court order. Most separating couples are concerned about (and argue about) money and children. Once these are resolved, unless one ex wishes to remarry, there is usually no rush to get the decree of divorce itself. That can instead be applied for using either the one or two-year separation grounds.

In England, a binding agreement about dividing finances can only be made by the court and only once "decree nisi" (stage one of a divorce process) has been reached. Because of this, divorce proceedings are often issued much earlier in the separation process, which means the majority of English divorce cases rely on either adultery or unreasonable behaviour (60% in 2015). In Scotland, this proportion was only 6%.

The rules for Scottish financial provision on divorce are also clearer and more predictable, compared to very discretionary rules in England. This tends to encourage Scottish couples to negotiate rather than litigate.

Although the move to "no fault" divorce in England will see fault-based grounds go, discretionary rules about the financial split, and the rush to court, will remain. For couples with links both sides of the border, perhaps more change is needed in England, not Scotland.

Lucia Clark is a Partner, Morton Fraser