‘No Fault Divorce’ – what’s the position in Scotland?

You can’t help to have noticed the high profile court case involving Hollywood stars Johnny Depp and Amber Heard. For some, it will be captivating. For others, it may seem voyeuristic to have what seems such a toxic relationship breakdown, be played out in public.

Unfortunately, divorce and separations are part of our lives, but very rarely do they make the front pages.

In April, divorce laws in England & Wales saw a significant change with the introduction of “no fault divorces”. This removed a requirement of blame for the breakdown of marriage. It enables a person to apply for divorce after 20 weeks from the start of proceedings. Most divorce applications in England & Wales have tended to be based on unreasonable behaviour. The main reason for this is due to the much longer time scales applicable; there a person needed to wait two years from separation with consent from the other person, or five years if consent is not forthcoming. The hope in changing the law south of the border is that it will make the divorce process less acrimonious, remove the blame game and reduce parental conflict.

Divorce law in Scotland in comparison to England & Wales is notably different.

How do I divorce in Scotland?

You must be able to demonstrate that the marriage has broken down irretrievably with no prospect of reconciliation, or that there has been an interim gender recognition certificate issued to one of the parties. Irretrievable breakdown can be evidenced by one of the following; (1) adultery; (2) unreasonable behaviour; (3) where there has been a continuous period of non-cohabitation between the parties for more than one year, with the consent of the other person; and (4) where there has been a continuous period of non-cohabitation for more than two years, no consent is then required.

So, in order to obtain a ‘no fault divorce’ in Scotland, options (3) and (4) are applicable. However, that still involves waiting for one or two years from separation.

A divorce on the grounds of unreasonable behaviour or adultery can be used, without any timescale from the date of separation. However, this does involve evidencing the behaviour or adultery. So, this does run the risk of further polarising couples going through what is already an extremely difficult process.

Making a divorce application

A divorce can be applied for under two procedures, depending on the circumstances: (1) The Simplified Divorce Procedure and (2) The Ordinary Divorce Procedure. A Simplified Divorce is only available where there are no children of the relationship under 16, the finances have been agreed and the couple has been separated for one year with consent, or alternatively for two years. The Ordinary Divorce procedure applies to all other divorces, in particular where there are children of the marriage under 16, or where financial matters have not been agreed.

Resolving finances and care arrangements for children

The law in Scotland is very different to England & Wales when it comes to resolving the financial aspects of separation and divorce. In England & Wales, it is possible to obtain a divorce, and then still continue to negotiate the financial aspects of a separation. In Scotland, the law aims to achieve a clean break on divorce, and financial matters should be resolved in advance of divorce.

In Scotland, it is of significant importance that spouses have fully addressed their finances and determined what may be a fair division of matrimonial property before a divorce is granted. It is not possible to seek a ‘second bite at the cherry’ once divorced. The care arrangements for children should be addressed before divorce too. However, childcare arrangements can be revisited in the future if the need arises. In the event that the couples are unable to agree financial matters or the care arrangements for their children, a Court can determine matters if required. The Court is always a last resort due to the potential cost and stress involved. There are several alternative forms of dispute resolution, which can be attempted before applying to Court, such as negotiation, Family Mediation or Collaboration. In some cases, where for example there is abuse or an urgent need to obtain court orders, those would not be appropriate.

It is always advisable to obtain specialist legal advice on separation. Your lawyer can help you to select the best way forward in your particular circumstances.