Divorce proceedings may take longer in Scotland but fairness and protection prioritised - Zaynab Al Nasser
The change was widely celebrated at the time as a move away from encouraging separating couples to point the finger of blame at each other, and this naturally gave rise to questions about why the Scottish system does not give couples the same option. In truth, the two systems are not hugely different…
In Scotland, a divorce can be granted where a marriage has broken down irretrievably, which can be shown by one of four grounds: adultery; unreasonable behaviour; having lived apart for more than one year with the consent of the other spouse; or having lived apart for more than two years (without the requirement for consent).
The two separation-based grounds are essentially seen as “no-fault” grounds, because there is no requirement to apportion any blame for the break-up of the marriage. Although these grounds still require one party to make the application, there is no need to explain the reason for the breakdown – the fact of having lived apart itself is sufficient to justify the divorce. In fact, until April, the situation in Scotland was considered to be more progressive than in England where the minimum periods of separation were two and five years.
By comparison with the new English system of joint application, one year may now sound like an unnecessarily long time to have to wait before an application can be made. In fact, a closer look at the two processes reveals that, once all is said and done, the timescales are not very far apart.
In Scotland, a court will not grant decree of divorce until it is satisfied that all child-related and financial matters have been resolved (whether by agreement or by court order). This is significant because it is not generally possible to revisit the finances once divorce has been granted. Since it can easily take up to 12 months for an agreement to be reached (and longer if the case is being litigated) it is likely that by the time the court is being asked to rule on the divorce, this can be granted almost immediately.
In England, a joint application is made and two weeks later the court officially starts the process. From this point the separating couple must wait for a 20 week “reflection period” to pass before applying for the first part of the divorce order. Once a judge has confirmed that they are satisfied the couple are entitled to a divorce, the couple must then wait a further six weeks before applying for the final divorce order. At the quickest, realistically, the process will take a minimum of just over six months.
While that sounds like an attractively quick timescale, it does not account for time spent negotiating childcare arrangements or a financial settlement, which is ordinarily dealt with between the two stages of the divorce. Divorced couples in England are not automatically protected from further financial claims against each other as they are in Scotland, so it is arguably even more important to ensure that everything has been resolved before applying for the final order.
The temptation to simply rush the divorce through, for the sake of speed, may expose either or both parties to the risk of a future claim. Family court statistics recently published by the UK government show that a jump in joint applications in England is coinciding with a drastic fall in financial order applications, which suggests that couples are taking advantage of the new process without understanding the full consequences of divorcing hastily and without financial orders in place.
While, on the face of it, the Scottish system appears to take longer, it is a system where fairness and protection from future claims is prioritised over speed. There is almost no risk of a divorced person being faced with a financial claim by their ex-spouse, thanks to the checks that are built into the procedure. In England, on the other hand, the recent government statistics are indicative of the unexpected and no doubt unintended consequences of the new joint application system, with the real-life consequences for those divorced couples still to be seen…
Zaynab Al Nasser is an Associate with Turcan Connell
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