England’s now got a ‘no fault’ divorce, but the law’s still different in Scotland - Savita Sharma & Nikki Hunter

Divorce can be said to be a bereavement where the parties involved are very often highly emotional. Laying blame is often the default whereas in reality, more often than not, it takes two to bring a marriage to its end. In England and Wales 'no-fault' divorce will come into effect on 6 April 2022.

Savita Sharma is a Consultant, Morton Fraser.
Savita Sharma is a Consultant, Morton Fraser.

This is the biggest reform to Divorce Law in England in 50 years and heralds a new era where couples will be able to get divorced without attributing fault.

Removing the fault-based element of divorce is a positive change where couples are able to apply either solely or jointly for divorce, on an amicable basis, allowing their best efforts to be focused on the more important aspects of a divorce such as children or finances. It provides the ability to apply for a divorce without having to establish that the other party is at fault. Instead, they only have to provide a statement to the effect that there is irretrievable breakdown of marriage along with their divorce application.

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How does this differ from the law of divorce in Scotland?

Nikki Hunter is an Associate, Morton Fraser.

In Scotland the ground of divorce is the same as in England which is "irretrievable breakdown of a marriage". This must be established by evidencing (i.e., proving) one of the following: -

(a) the other party has committed adultery;

(b) the other party has behaved in such a way where the party (who wishes the divorce) cannot reasonably be expected to cohabit with that party;

(c) the parties have not cohabitated for one year and the other party consents; or

(d) the parties have not cohabitated for two years (consent is not required for this ground).

Notwithstanding the fact the irretrievable breakdown of the marriage has to be proven with corroborating evidence (unlike the new law in England), relying on either of the non-cohabitation grounds is often referred to as a "no-fault divorce" in Scotland. A party who disputes any of the four grounds can defend the application for divorce There is a common misconception in Scotland that if the irretrievable breakdown of a marriage can be established by evidencing "fault" (i.e., adultery or unreasonable behaviour) the suffering party will be rewarded financially. This is not the case. Except in very limited circumstances, a party's conduct is just a means to justifying divorce.

The introduction of "no-fault" divorce in England goes well beyond the Scottish system. This means, in Scotland, if you are unable to satisfy a court that whatever ground you are relying upon has been established, your divorce will be refused. This is in contrast to England now where a declaration of irretrievable breakdown of a marriage is sufficient and as such it cannot be opposed (i.e., defended) or requires consent from the other party.

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There are other differences between the two divorce systems. For example, in England, divorce and finances proceedings are separate, (although they are normally addressed concurrently) whereas in Scotland they are connected. Therefore, becoming divorced in England does not preclude either party from seeking financial provision from the other after the divorce has been granted (until such time as all financial claims are dismissed). However, in Scotland, once a divorce or dissolution has been granted, that brings the parties right to seek an order for financial provision from the other to an end, save for in very limited circumstances.

These differences are only the tip of the iceberg in relation to the Scottish divorce system and the English divorce system. Whilst in some cases, people are limited to which court they are entitled to raise proceedings, in other cases they may have the option of raising in Scotland or England. Raising proceedings in Scotland may yield a significantly different outcome in respect of how the matrimonial assets are shared than if proceedings were to be raised in England (and vice versa) given the emphasis set out in the respective legislation. It can often be the difference between a good outcome or a better outcome. It is very important that parties seek expert legal advice as soon divorce proceedings are contemplated, or divorce papers received.

Irrespective of whether parties divorce under the new law in England and Wales or in Scotland, the overwhelming consensus seems to be that allowing couples to end their marriages with more dignity and less conflict can only be seen as a positive change which will help the way couples approach divorce and other related matters.

Savita Sharma is a Consultant and Nikki Hunter is an Associate, Morton Fraser.

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