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Introduction
13. 1 In our report on Reform of the Ground for Divorce we recommended that the ground for divorce should continue to be the irretrievable breakdown of the marriage but that the periods of separation which can be used to establish breakdown should be reduced from 2 years to 1 year (where the defender consents to the divorce) and from 5 years to 2 years (where the defender does not consent) . As a consequence, divorce for desertion followed by 2 years separation would no longer be necessary. If this recommendation is implemented the ground for divorce would be the irretrievable breakdown of the marriage and this could be established by proving
(a) adultery
(b) intolerable behaviour
(c) separation for one year plus the other party's consent to divorce or
(d) separation for two years.
The main reason for our recommendation was to enable spouses, whose marriages had broken down irretrievably, to use the non-fault separation grounds in a higher proportion of cases, rather than the more hostile and aggressive fault grounds of adultery or intolerable behaviour. It is a serious criticism of the existing law that it encourages people who do not want to wait five years for a divorce to make exaggerated or unfounded allegations of intolerable behaviour against their spouses. We mention the ground for divorce only by way of background. Our concern in this part of this report is only with bars to divorce and, in particular, with lenocinium, collusion and grave financial hardship. The questions with which we are concerned are (a) whether the term "lenocinium" should be replaced, in any new legislation, by a more informative expression, without altering the substance of the law, (b) whether collusion has any role to play, as an independent bar to divorce, in the new divorce law and (c) whether the power to refuse certain divorces on the ground of grave financial hardship should continue to be available.
13.2 Section 1(3) of the Divorce (Scotland) Act 1976 provides that
"The irretrievable breakdown of a marriage shall not be taken to be established in an action for divorce by reason of [adultery] if the adultery ... has been connived at. in such a way as to raise the defence of lenocinium. "
This is not particularly helpful to a lay person reading the Act. The policy, however, is clear and understandable. A pursuer should not be able to divorce his or her spouse for adultery if the pursuer has actively promoted the adultery in question. For example, a husband who has encouraged his wife to prostitute herself should not be able to found on the adultery in question in order to obtain a divorce. 1
13.3 Cases on lenocinium have been very rare but they establish that there must be active promotion of, and not merely passive acquiescence in, the adultery. 2 A spouse is not, for example, barred by lenocinium merely because he or she does not attempt to dissuade the other from. committing adultery, 3 or merely because, suspecting adultery, he or she has the other spouse watched by detectives in order to obtain evidence. 4 The cases also establish that the pursuer's words or conduct must have been the immediate cause of the adultery before there will be lenocinium. 5
13.4 We think that the policy of the present law is correct. So long as adultery is used as an indicator of marriage breakdown it must, we think, be right to say that it is not a good indicator of breakdown if it has been actively promoted or encouraged by the spouse founding on it. On the other hand it remains a good indicator of marriage breakdown notwithstanding that the pursuer has merely acquiesced in something he or she had no power to prevent. Our concern is not with the policy but with the terminology. We would be reluctant to see the uninformative word "lenocinium" appear in a new family law code. We suggested in the discussion paper 6 that the reference to lenocinium should be replaced by a reference in plain English to adultery which had been actively promoted or encouraged by the pursuer. This was supported by almost all who commented on it. We therefore recommend that
67. The reference in section 1(3) of the Divorce (Scotland) Act 1976 to adultery which "has been connived at in such a way as to raise the defence of lenocinium" should be replaced by a reference to adultery which has been actively promoted or encouraged by the pursuer.
(Draft Bill, clause 30(1).)
13.5 Section 9 of the Divorce (Scotland) Act 1976 abolished the oath of calumny in divorce actions (and other consistorial actions) but provided that
"nothing in this section shall affect any rule of law relating to collusion".
The oath of calumny was an oath by the pursuer to the effect that there was no agreement between the parties to put forward a false case or hold back a good defence. Collusion was sometimes defined by reference to the oath of calumny, 7 which is no doubt why the saving provision in section 9 was thought necessary. The existing law is that collusion remains a bar to divorce. Notwithstanding the abolition of the oath of calumny, collusion is still defined as an agreement to permit a false case to be substantiated or to keep back a good defence. 8 The question is whether it has any independent function as a bar to divorce, given that if the court discovers that there is a false case or a good defence divorce will be refused anyway whether or not the parties have colluded.
13.6 A typical case of collusion would be one where both parties want -a divorce but do not want to wait for two years in order to obtain one. They, therefore, agree to concoct a false case of adultery. The husband pretends to commit adultery with a woman hired for the purpose and the parties arrange for witnesses to be able to speak to the events observed by them. If the absence of true grounds for divorce does not come to light before decree then, whether or not collusion remains part of the law, the divorce will be granted. If it comes to the court's knowledge before decree of divorce then, whether or not collusion forms part of the law, no divorce will be granted. Any liability to sanctions for contempt of court, perjury or subornation of perjury arises from the facts, regardless of whether or not collusion forms part of the law. Collusion as a bar to divorce has no independent function. We can think of no case where, if collusion were abolished. a judge would say "Collusion has been abolished. Therefore I must grant this divorce even although the parties have clearly combined to present a false case to the court.".
13.7 Collusion has been abolished as a bar to divorce in English law. The Divorce Reform Act 1969 provided that
"nothing ... in any rule of law shall be taken as empowering or requiring the court to dismiss such a petition [i.e. for divorce or judicial separation] ... on the ground of collusion between the parties in connection with the presentation or prosecution of the petition" 9
13.8 Most consultees who commented on this issue agreed that collusion served no useful independent function. We think that it should be abolished. However, to avoid any misunderstanding about the effect of abolition it would be as well to make it clear in the legislation that, regardless of collusion, a court should not grant a decree of divorce if satisfied that the pursuer has put forward a false case or the defender has withheld a good defence. We recommend that
68.(a) It should be expressly provided that the court in an action for divorce should not grant decree of divorce if satisfied that (whether or not as a result of collusion) the pursuer has put forward a false case or the defender has withheld a good defence.
(b) Collusion as a separate bar to divorce should be abolished.
(Draft Bill, clause 30.)
13.9 Section 1(5) of the Divorce (Scotland) Act 1976 provides that
"Notwithstanding that irretrievable breakdown of a marriage has been established in an action for divorce by reason of [5 years' separation], the court shall not be bound to grant decree in that action if in the opinion of the court the grant of decree would result in grave financial hardship to the defender. For the purposes of this subsection, hardship shall include the loss of the chance of acquiring any benefit.
This provision is inconsistent with the philosophy of the Act, in that it envisages a marriage which has irretrievably broken down being kept in existence for purely financial reasons. It was enacted before the reform of the law on financial provision on divorce by the Family Law (Scotland) Act 1985 and does not fit well with that law. The 1985 Act is designed to enable the court to make whatever financial provision on divorce is (a) justified by the principles in the Act and (b) reasonable having regard to the resources of the parties. 10 The principles in the 1985 Act include the principle that
"a party who at the time of the divorce seems likely to suffer serious financial hardship as a result of the divorce should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period." 11
The logical, but perhaps surprising, result is that the power to refuse a divorce under section 1(5) of the 1976 Act is in reality a power to refuse a divorce on the grounds of hardship which it is reasonable or justifiable that the defender should be expected to suffer. This seems unnecessary and undesirable. The approach of the law should be to enable such financial provision as is justifiable and reasonable to be ordered on divorce, but not to give one party a bargaining counter to seek more by threatening to found on section 1(5).
13. 10 There have been very few reported cases on section 1(5). In Boyd v Boyd 12 it was held that there was no financial hardship where the periodical allowance awarded to the defender on divorce exceeded the aliment she was receiving before divorce. In Nolan v Nolan 13 it was held that the contingent loss of a widow's pension rights (under an occupational pension scheme and the state scheme) coupled with the loss of the contingent right to claim legal rights out of any lump sum received by the husband's estate from his occupational pension fund amounted to grave financial hardship. Divorce was refused, even although the parties had been separated for more than 5 years, and the action was continued to enable the husband to produce better proposals for compensating the wife for these losses. This case was decided in 1979. It illustrates the inconsistency between section 1(5) of the 1976 Act and the new law on financial provision on divorce introduced in 1985. Under the 1985 law the purpose of financial provision on divorce is not to place the spouses in the position in which they would have been had the marriage continued. That used to be the objective in England, and it is that objective which seems to be reflected in the decision in Nolan v Nolan. However, it has now been abandoned in England as unrealistic and undesirable. 14 It has never been part of the statute law in Scotland. The approach of the 1985 Act to occupational pension rights is to regard the accrued rights as a form of savings. The proportion applicable to the years between the date of the marriage and the final separation is regarded as matrimonial property and, as such, is subject to the norm of equal division. 15 If section 1(5) were to be applied now as it was in Nolan the husband would, in effect-, be asked to make financial provision on a basis which has now been firmly abandoned and which is inconsistent with the principles of the 1985 Act.
13.11 Almost all of those who commented on this issue agreed with our provisional proposal that section.1(5) of the Divorce (Scotland) Act 1976 should be repealed. One consultee suggested, however, that the position of elderly spouses in relation to state pensions should be considered, not with a view to refusing a divorce but with a view to ensuring that pension rights were not lost as a result. This is not a question for us to determine. However, we note that it is already the case that a woman who is divorced after she has attained pensionable age and has become entitled to a retirement pension by virtue of her husband's contributions does not lose that right merely because of the divorce: it continues throughout her life. 16 We also note that a person divorced before he or she attained pensionable age can already use the contributions record of his or her former spouse to help him or her to qualify for a retirement pension. 17
13.12 We recommend that
69. Section 1(5) of the Divorce (Scotland) Act 1976 should be repealed.
(Draft Bill, clause 30(3).)
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