Improving Scottish Family law

2. Divorce Law Reform
2.1. The Scottish Law Commission Report on Reform of the Ground of Divorce
2.1.1. The Scottish Law Commission (SLC) Report on Reform of the Ground for Divorce (1989) recommended that the present grounds for divorce should in essence remain but the periods of separation should be altered to one year with the consent of both parties and two years without that consent. There had been proposals to implement this recommendation in what became the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 but these were not followed through.
2.1.2. Since then, Parliament has passed the Family Law Act 1996 which will make radical changes in the grounds for divorce in England and Wales. The system introduced by the Act will make the English grounds and procedure for divorce significantly different from the approach of the Scottish legislation. But the approach to divorce in Scotland may also be developing in its own way.
2.1.3. The Divorce (Scotland) Act 1976 remains the basis of our divorce law. Under this Act the sole ground of divorce became the irretrievable breakdown of marriage, but this has to be established by proving one of 5 specified facts: adultery unreasonable behaviour desertion 2 years separation with consent 5 years separation without consent.
These may still be referred to, loosely, as the grounds of divorce.
2.1.4. The most frequently used ground is 2 years separation with consent and this is particularly so for couples with no children; but for couples with children unreasonable behaviour is the most frequently used (see Fig 1 and Annex B). While the overall numbers of divorces involving children have fallen in the past few years, there has been little corresponding reduction in those based on behavioural grounds.
The size of each pie is proportional to the number of divorces
2.1.5. Couples with children are involved in almost 39% of divorce actions. Of those with no children, well over 50% use the simplified divorce procedure with separation grounds.3 But with those with children, almost 70% are based on accusations of unreasonable behaviour or adultery.
2.1.6. The Children (Scotland) Act 1995 - in line with its intention to seek to change the adversarial culture surrounding divorce as far as children are concerned - has established the principle of minimum intervention by the court. The onus is now firmly on the divorcing parents to make their own arrangements for the care of their children after a divorce, and it is clear that that care should be shared by both parents. In the vast majority of cases arrangements for the future are settled outwith the court, for example through Minutes of Agreement. The court may, however, make an order if necessary in the best interests of the child. At any stage of the court proceedings the court may refer the couple to mediation. Any reform of the law relating to divorce should recognise this trend away from acrimony and towards mutual agreement.
2.2 SLC Recommendations
2.2.1. The SLC Report on Reform of the Ground for Divorce recommended reducing the periods of separation from two years to one year (with consent) and five years to two years (without consent). It was hoped that shortening the periods of separation needed to establish breakdown of marriage would mean that fewer couples would use the grounds of adultery or intolerable behaviour, with all the attendant acrimony, simply to get a speedy divorce. It was not proposed, however, to do away with these grounds. Where it is really intolerable for someone to remain in a marriage, a divorce should be available as quickly as possible. With this reduction in the period of separation, desertion as a separate ground for divorce becomes unnecessary, and the SLC recommended its abolition.
2.2.2. The SLC considered but did not recommend for Scotland a period of notice as the sole ground of divorce. This would be conceptually similar to the system to be introduced in England and Wales by the Family Law Act 1996. The SLC commented that this is an area where legal and procedural differences in the two countries could well be important. However it may be that further consideration of this topic is desirable in the light of the changes in England and Wales.
2.3 Reforms in England and Wales
2.3.1. In outline, the divorce procedure introduced by the 1996 Act is as follows. Someone seeking a divorce in England and Wales will first have to attend an information meeting where the consequences as well as the procedures of divorce will be explained, but where marriage support will also be offered. If the person wishes to proceed, he or she must wait 3 months before making a statement of marital breakdown. There will then be a minimum 9 month period of reflection and consideration. During this period there will be the opportunity for marriage counselling as well as mediation - the couple will be encouraged to make their own arrangements for their life apart, and an initial mediation meeting will be compulsory for those on legal aid. At the end of this period, an application may be made to the court for a divorce, which will only be granted if it is satisfied that suitable arrangements have been made for the couple's life apart and for the welfare of any children involved.
2.4 Options for reform
2.4.1. One option for reform in Scotland might be to wait and see how the new system in England and Wales beds down, and then to devise a system for Scotland based on similar, but not necessarily identical, principles. An opposing view might be that the Scottish system is developing satisfactorily, and should not be tinkered with. The third option is to implement the SLC recommendations as soon as possible.
2.4.2. The aim of any reform of divorce law must surely be to enable couples whose marriages cannot be saved to part on fair terms with the least possible acrimony. The law must not in any way encourage break up or divorce. This aim would be consistent with the principles listed in the Foreword to this paper. It could be suggested that divorce in Scotland is moving towards a less adversarial atmosphere anyway, with the use of the simplified procedure and Minutes of Agreement, a trend towards mediation, and the emphasis on shared parenting following the Children (Scotland) Act. The question would then be whether any reform is necessary or whether the limited reform recommended by the SLC would be an improvement. The critical question here is whether the present separation periods are, as the SLC claim, too long and whether this leads to unnecessary use of behavioural grounds.
2.4.3. One view is that reform of divorce law is required to re-inforce the non-adversarial message in the Children (Scotland) Act and that allowing development of the existing provision would take too long and would lead to unnecessary suffering and hardship in the interim. The continuing use of behavioural grounds is also a cause for concern which suggests reform is necessary.
2.4.4. The use of the behaviour ground increases the likelihood of acrimony. It may interfere with continued parenting after divorce. It does not allow time for parents to consider the position of the family nor, if divorce is the only way forward, does it assist in the making of inclusive arrangements for their children. It also does not provide time for the possibility of reconciliation.
2.4.5. Reducing the period which couples have to wait to qualify for divorce could provide a more attractive solution to those who would otherwise look at obtaining a quick divorce on the behaviour ground. It might allow couples some (but not excessive) time to explore reconciliation or to settle future arrangements for themselves and their children.
2.4.6. The alternative to minor reform of the current grounds, if it is not thought that the present system is capable of development, is to explore a completely new system, as was done for England and Wales.
Question 1. Views are sought on these three options:
Option a: not to proceed with any reform of the grounds of divorce at present in Scotland;
Option b: to implement the recommendation of the SLC to keep essentially the present ground of divorce but reduce the separation periods to 1 year with consent and 2 years without;
Option c: to devise for Scotland more radical reform on the lines of that to be introduced in England and Wales.
2.5 Procedures before divorce can be awarded
2.5.1. Section 9(3) of the Family Law Act 1996 provided that in a divorce action in England and Wales, where a couple were married according to certain religious usages, the court may, on application of either party, require a declaration that they have taken such steps as are required to dissolve the marriage in accordance with those usages. The intention is to protect, for example, a Jewish wife who wishes her marriage to be dissolved according to Jewish usages as well as the civil procedure. In Jewish law, a woman whose husband refuses to grant her a religious divorce is "chained" and is not free to marry under Jewish law. It has been suggested that a similar provision should apply in Scotland, and views are sought as to the appropriateness of such a provision.
2.5.2. Section 12 of the Children (Scotland) Act 1995 provides for a court to consider whether to make an order relating to any children of the family under sections 11 or 54 before granting a divorce. There is, however, no obligation on the parties to provide to the court any information about the arrangements for the children. The SLC recommendation on which this is based was that the previous obligation on the court to be satisfied as to the arrangements for the children was too onerous. It may be however that if no information is placed before the court as to the arrangements for the children, the court will not be in a position to consider under section 12 whether or not to make any order. It might be useful to provide that where there are children involved in a divorce, information about the proposed arrangements for the children should be made available for the court to consider before granting the divorce.
Question 2: Views are sought on the proposals to amend the procedures before divorce is granted to take account of certain religious marriages, and the provision to the court of information about the arrangements for the children.
2.6. Summary of questions on divorce law reform
Question 1. Views are sought on these three options:
Option a: Should the Government not proceed with any reform of the grounds of divorce at present in Scotland?
Option b: Should the Government implement the recommendation of the SLC to keep essentially the present ground of divorce but reduce the separation periods to 1 year with consent and 2 years without?
Option c: Should the Government devise for Scotland more radical reform on the lines of that to be introduced in England and Wales?
Question 2: Views are sought on the proposals to amend the procedures before divorce is granted to take account of certain religious marriages, and on the provision to the court of information about the arrangements for the children.