Introduction
12.1 Judicial separation is a remedy for marital breakdown which terminates the spouses' obligation of adherence (i. e. their obligation to live together) and ordains the defender to live apart, but which does not terminate the marriage. It is an older remedy than divorce and was well developed in the canon law before the Reformation. For centuries the only grounds were cruelty and adultery but in 1976 the grounds were changed to (a) adultery (b) intolerable behaviour (c) desertion followed by two years' separation (d) two years' separation plus the defender's consent to decree and (e) five years' separation. 1
12.2 The usefulness of judicial separation in Scotland has varied over the years. Before 1938
there was no divorce for cruelty or intolerable behaviour and a decree for permanent aliment could only be obtained along with a decree for separation or adherence. A decree of separation and aliment was therefore an important remedy for abused wives. Before the introduction of legal aid in 1950 another attraction of separation was that it was a more readily accessible remedy for many people. It was available in the sheriff courts, whereas divorce was only available, at greater cost in the Court of Session.
12.3 Before the Married Women's Property (Scotland) Acts of 1881 and 1920 a separation decree had important effects in relation to obligations and property. Property acquired by a wife after she had obtained a decree of separation was excluded from her husband's jus mariti and jus administrationis and, on her death intestate, passed to her heirs as if her husband was dead. 2 A judicially separated wife could enter into obligations, sue and be sued, as if she were unmarried. 3 These consequences, apart from the provision on intestate succession, ceased to be of importance with the disappearance of the old law on matrimonial property and the incapacity of married women. 4 The provision on succession is now anomalous. It applies only to a separation decree obtained by a wife, only if the wife dies intestate, and only to property acquired after the decree. In our report on Succession we have recommended its repeal. 5 At one time some local authorities used to require a married person applying for a tenancy of a local authority house on the ground of marital breakdown to obtain a divorce or judicial separation before they would make an allocation or put the applicant on a waiting list. 6 Where there was an objection to divorce this practice could push people into raising court proceedings for a judicial separation which they did not want and did not otherwise need. However, the Housing (Scotland) Act 1987 now provides that
"In the allocation of local authority housing a local authority ...
shall not impose a requirement ...
that a divorce or judicial separation be obtained,". 7
12.4 The legal reasons for separation actions have now disappeared. Divorce is as readily available as separation, in the same courts and on the same grounds. It is a more effective remedy than judicial separation in relation to property and succession. Those who do not wish to seek a divorce, or who do not wish to do so yet, can obtain all the remedies they need without seeking a judicial separation. It is not now necessary to seek a separation decree in order to obtain aliment. An action for aliment can be raised on its own. 8 It is not now necessary to seek a judicial separation in order to obtain a local authority house. 9 It never has been necessary to raise a separation action in order to obtain custody of, and aliment for, a child. Separate proceedings for custody and aliment can be raised. A separation decree is not a good remedy for a spouse who is the victim of domestic violence. It does not say that either spouse is to leave the home. It is concerned with personal relations, not occupancy rights. Exclusion orders and matrimonial interdicts under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 are more appropriate and effective remedies. The fact that a separation decree cancels the obligation of adherence between the spouses is of no practical importance. A spouse does not need a separation decree from a court in order to separate. A court will not order him or her to return. 10 If there is reasonable cause for separating, he or she cannot be divorced for desertion. 11 A spouse does not need a court decree to prove, for income tax or other purposes, that he or she is living apart. A separation decree is not conclusive proof in any event, as the parties may have resumed cohabitation notwithstanding the decree. A spouse who wishes to keep open the right to aliment, or the chance of a widow's pension, or a prospect of reconciliation, may not want a divorce but does not need a judicial separation either. Indeed from the point of view of reconciliation, raising a separation action on, say, the ground of intolerable behaviour is inadvisable. Raking over the spouse's past conduct, having him or her judicially found to be at fault, 'and having him or her ordained to live apart, is hardly the best way of promoting a reconciliation. Legally, judicial separation has become an unnecessary remedy.
12.5 Separation actions are now comparatively infrequent. The numbers appear to be declining steadily. In the 5 year period from 1985 to 1989 the numbers of actions of separation and aliment raised in Scotland were as follows: 12
|
1985 |
234 |
|
1986 |
215 |
|
1987 |
174 |
|
1988 |
15.8 |
|
1989 |
116 |
There are no statistics, on the number of separation actions which do not include a crave for aliment but it is estimated that the above figures represent about half of all separation actions raised. 13 The number of separation decrees granted is considerably less than the number of actions raised. Many actions do not proceed to decree. 14 Some may be converted into actions for divorce. 15 In some cases the parties may become reconciled. In some cases the client may be satisfied with interim measures obtained to deal with such practical problems as aliment and personal protection and may no longer feel the need to pursue the crave for judicial separation. 16
12.6 There are pronounced geographical variations in the use of judicial separation. In most parts of Scotland it is extremely rare. In the five-year period from 1985 to 1989 inclusive there were no separation actions at all in 8 sheriff courts and not more than one a year on average in another 21 sheriff courts . 17 Most separation actions are raised in the sheriffdoms of North Strathclyde, South Strathclyde and Glasgow. 18
"Indeed, over half the actions raised in 1989 were raised in just 5 sheriff courts within these sheriffdoms, and a similar pattern can be identified in previous years. " 19
12.7 Most separation actions are raised by women, and most are on the ground of intolerable behaviour. 20 Most include craves for aliment, custody or remedies under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. 21 It is estimated that approximately half of the pursuers are legally aided. 22 In most cases the pursuer has dependent children. 23
12.8 The question for consideration is whether there is a place for the remedy of judicial
separation in a new family law code. Legally, as we have -seen, it is no . w an unnecessary remedy. A spouse who does not wish to seek a divorce can separate and can obtain protection, aliment and any necessary orders relating to children without seeking a decree of separation. Unnecessary remedies are undesirable. They add to the complexity of the law and make it less efficient. Moreover, the remedy of judicial separation may be considered undesirable in itself, in that it creates a legally sanctioned divergence between the social position and the legal position. The parties are legally ordained to live apart but remain legally married. This has been the subject of adverse comment for over a hundred years. 24 In practice, too, almost all actions for separation are fault-based. Unnecessary allegations of fault by one spouse against the other in court proceedings are undesirable, particularly in those cases where children are involved. They are not likely to promote a conciliatory approach in relation to the fulfilling of parental responsibilities after the marriage breakdown. Judicial separation has been abolished in Sweden, 25 Australia 26 and Jamaica. 27
12.9 In the past the main argument for retaining judicial separation has been that it provides a
remedy for people who object to divorce on religious grounds. 28 However, the legal changes which we have mentioned already have destroyed the argument that judicial separation is necessary as an alternative remedy. A person who wishes, whether for religious reasons or other reasons, to remain married but to live apart from his or her spouse can just separate. He or she does not need permission from a court to do so. Aliment, orders relating to children, exclusion orders or interdicts can be sought, if necessary, without also seeking a judicial separation.
12. 10 There is something absurd about the existing grounds for judicial separation, in that
three of them (desertion, and the two separation grounds) require the parties to have been already separated for at least two years. 29 To ask a court, in such circumstances, to permit the pursuer to live apart and to ordain the defender to live apart seems patently unnecessary. It is not surprising that these three grounds appear to be little used in practice. 30
12.11 In the discussion paper we provisionally proposed that judicial separation should be abolished. A majority of those who commented on the issue agreed with this proposal. The minority who favoured retention did so primarily on the ground that it was a useful remedy for those who objected to divorce on personal or religious grounds. However, none of the consultees explained where its usefulness lay. A person who feels that he or she must live apart from his or her spouse but who objects to divorce can simply separate without a court decree and, if necessary. seek appropriate remedies such as awards of aliment or custody or interdict or exclusion orders. A court decree ordaining one spouse to live apart from the other is in itself antithetical to the marriage bond and is unlikely to promote reconciliation. It could hardly be claimed that a fault-based action, in which one spouse sets out all the worst aspects of the other's behaviour during the marriage, is useful from the point of view of the children of the marriage.
12.12 Two consultees suggested increasing the legal effects of a separation decree. One suggested that a spouse should be able to seek the same orders for financial provision on a judicial separation as on divorce. We do not think this would be appropriate. It would enable a spouse to seek financial benefit both on the basis that the marriage had ended and on the basis that it continued. For example, a spouse could seek a share in the value of the other spouse's accrued pension rights on the footing that the marriage was over while still expecting to benefit under the same pension scheme as a widow or widower on the footing that the marriage continued. This would be quite unacceptable. Another consultee suggested that the effects of judicial separation on succession should be extended. It is clear that the present law, which covers only separation decrees obtained by wives, and applies only where the wife dies intestate and only to property acquired after the decree, is unsatisfactory. 31 However, to extend the effects of separation decrees would lead to new anomalies. Would it be right, for example, to distinguish between separation decrees and separation agreements? What about those who had been separated for years without a decree or an agreement? What about those who had raised a divorce action but not yet obtained decree? Why distinguish between succession rights and other rights dependent on marriage, such as rights under certain pension schemes or insurance policies or trusts? Clearly a separation decree on non-fault grounds would have to affect both spouses equally. There would be no justification for preserving the pursuer's succession and other rights but terminating the defender's. Probably the same rule would have to be applied to all separation decrees. To distinguish between fault and non-fault grounds in this respect would be undesirable.It would provide an incentive to. establish fault, which is contrary to current policies on marriage breakdown. Yet a separation decree might be even less attractive to a pursuer than it is already if it cut off the pursuer's succession rights as well as the defender's.
12.13 No new arguments were put forward by the minority of consultees who favoured retention of judicial separation. At most, there was a view that some people seem to want to use the remedy and that therefore they should be allowed to continue to do so. This is not a good argument for retaining a remedy which is in fact unnecessary. Legal proceedings are expensive. Legal craves which, in practice, are based almost entirely on allegations of fault on the part of the other spouse are likely to increase bitterness within an already divided family. Unnecessary and potentially embittering remedies should not be provided. Our inclination, therefore, having taken the results of consultation into account, was to confirm our provisional view that judicial separation should be abolished. However, we were concerned that we might have overlooked some strong practical reason for-the fact that some separation actions are still raised, albeit in diminishing numbers. We therefore asked the Central Research Unit of the Scottish Office to carry out some empirical research into the characteristics of separation actions and the views of solicitors with experience of them. This research was carried out in the summer of 1991. The results are set out in a published Central Research Unit Paper. 32 We summarise the main findings in the following paragraphs.
12.14 The researcher interviewed a dozen solicitors who had all used separation actions and who all practised in one of the few high-use areas in Scotland. The solicitors identified various situations where a divorce might not be wanted even although the marriage had apparently broken down. The client might have religious objections to divorce; the client might want to keep open the possibility of a reconciliation; the client might want to preserve for as long as possible 33 the right to aliment and a widow's pension; the client might want to prevent for as long as possible 34 any remarriage by the other spouse; it might be advantageous for a client who owned the matrimonial home or other property not to activate the powers which a court has on divorce in relation to capital sums and property transfers; it might be advantageous to preserve the power of arrest attached to a matrimonial interdict ; 35 the client might have been divorced already and might not want "the stigma. of a second divorce". All of these are reasons for not pursuing a divorce action and for letting the other spouse seek a divorce if he or she wishes to and has grounds. They are not reasons for seeking a court decree of judicial separation. Most of the interviewed solicitors routinely dealt with the legal problems arising on marriage breakdown, where a divorce was not wanted, by raising proceedings for the appropriate remedies (exclusion orders, interdicts, aliment, custody and so on) independently of a separation action. They made comments such as the following. 36
"It was the coming of the Matrimonial Homes Act which killed separation as a regularly used tool, in that now with a range of other remedies available people can judicially enforce a state of separation without pursuing a separation action as well."
"The reason for people taking action, apart from to end the marriage, is, to regulate financial matters and my view is that this can be done through individual actions ...You do not need a crave for separation."
"You can now get measures which serve a person's needs more readily (than a judicial separation)."
"There are no legal reasons (for a judicial separation).... If it's a case of not wanting divorce but wanting to seek other orders you just raise ordinary aliment actions etc. There is not really any legal need to tag on a crave for separation unless the client really wants it-there is no point in having to put together a case of unreasonable behaviour."
Three of the solicitors in the sample, however, while acknowledging that it was possible to seek appropriate remedies without also seeking a separation decree, regarded this practice as "untidy" or "incomplete". 37 They thought a separation decree was more "presentable" and that people liked "having ancillary craves tagged on to a 'status' action". 38 These solicitors positively favoured including a crave for separation. Even solicitors who themselves saw no legal need for a decree of separation would seek such a remedy if the client really wanted it. It seemed, however, that clients were often confused about this. 39
"Clients are often confused-they think they need a judicial separation in order to get a divorce on the grounds of separation. They do not appreciate that it is a court action like a divorce." "There is a great misconception that you need a judicial separation before you can do anything."
Some clients wanted to have fault officially recognised and recorded. 40
"People want to identify the question of fault. It allows them to get on record the allegations of conduct.
"It's an option for a person who does not want divorce but wants a declaration from the court that the marriage
has broken down and that their spouse is wrong."
Some clients wished simply to
"make a statement about the breakdown of their marriage 41 "
or to
"get formal recognition of the breakdown of their marriage". 42
12.15 Two solicitors saw a use for a separation decree in cases where the criteria for an exclusion order would not be met-for example, where the conduct complained of was adultery. Even if an application, for an exclusion order failed the client had the "comfort of a decree which ordered the other spouse to live apart. 43
"In some cases you may not have enough for an exclusion order. So applying for a judicial separation as well means that you have something if you do not get the exclusion order-it acts as a safeguard."
This raises an interesting question as to the interaction between a separation decree and occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The starting point is that before 1981 a separation decree had no effect on property rights. It affected the personal relations between the spouses, by cancelling the obligation of adherence, but not their rights as owners or tenants. Two examples may be Considered:
2. The wife was sole owner or tenant of the home. The husband committed adultery. - She, before 1981;obtained a separation decree on the ground of the adultery. This made no difference to the parties' rights in the home. The wife could put the husband out. However, she could have done this anyway, even without the separation decree, by virtue of her position as owner or tenant. 44
In short, before 1981 the owner or tenant could stay in the house no matter who obtained the separation decree. In practice, the other spouse would probably have left, or been ordered out of, the home long before the separation decree was obtained. Before 1981 a separation decree was a consistorial remedy, which cancelled the obligation of adherence but had nothing to do with the occupation of any particular matrimonial home. It would not be specifically enforced by imprisonment for contempt of court, or by physical force by officers of court. 45 It was not a sort of common law exclusion order. 46
12.16 It would be very surprising if the 1981 Act had converted a separation decree into an effective substitute for an exclusion order. However, let us see how the two cases mentioned above would be affected by the 1981 Act. In the first case the wife, who is sole owner or tenant of the home, commits adultery. Her husband obtains a separation decree. The only difference which the 1981 Act makes is that he has occupancy rights. That, however, still does not entitle him to put his wife out of her own home without an exclusion order. If he wants to live apart it is still up to him to leave the home.
12.17 In the second case the wife is the owner or tenant of the home and the husband commits adultery. The wife obtains a separation decree. Before 1981 this made no difference to occupancy rights. The wife could put the husband out before the decree, and after the decree. Under the 1981 Act, the husband has occupancy rights. The wife could not put him out before the separation decree, unless she had grounds for an exclusion order. Does the separation decree change the position? We think not. It has no effect on the husband's occupancy rights. He still has, by statute,
"a right to continue to occupy the matrimonial home." 47
A separation decree would not oblige the defender to leave a house which he had a right to occupy. The 1981 Act has not changed the nature of a separation decree. It is still a consistorial remedy, operating only on the obligation of adherence, and not a remedy operating on a person's rights in relation to a particular house. A.separation decree still has no role to play as a sort of common law exclusion order for those situations where grounds for an exclusion order under the 1981 Act are not available. It is a false "comfort-a useless "safeguard".
12.18 The majority of the solicitors interviewed could envisage no legal problems if judicial separation was abolished. Some, however, thought that judicial separation was the right remedy in some situations and that it should remain as an option that they were able to offer to clients.
12.19 The results of the empirical research did not reveal any strong practical reason for seeking judicial separation where a divorce is not wanted, rather than seeking other remedies such as an award of aliment, or orders relating to children, or an exclusion order or interdicts. The research also confirmed that judicial separation actions have declined steadily and rapidly in numbers in recent years. In some sheriff courts they are virtually unknown. In most parts of Scotland they are now rare. It may be that in time they would wither away of their own accord as more and more people saw' the pointlessness of getting involved unnecessarily in allegations of fault and the futility of seeking a separation decree on the basis of the non-fault separation grounds. However, in relation to a proposed recasting of Scottish family law in a new comprehensive statute or code it is necessary to decide whether to complicate the legislation by including special provisions on a remedy which is unnecessary, obsolescent, and undesirable in that it is likely to hinder, rather than promote, attempts at reconciliation or conciliation. We do not think this would be justifiable. We therefore recommend that
66. Judicial separation should be abolished.
(Draft Bill, clause 29)