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Scottish Law Commission:
Report on Reform of the Ground for Divorce
Part I Recommendation
1.1 The Divorce (Scotland) Act 1976 provides that the only
ground for divorce is that the marriage has broken down irretrievably. Irretrievable
breakdown can be established only by proving (a) adultery (b) intolerable behaviour
(c) desertion followed by separation for two years (d) separation for two years
plus the other party's consent to divorce or (e) separation for five years.1
For the reasons given later in this report, we recommend that:
The ground for divorce in Scotland should continue to be
the irretrievable breakdown of the marriage. It should be possible to establish
irretrievable breakdown only 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 draft Bill appended to this report would, if enacted, give
effect to this recommendation.
1.2 It will be seen that our main recommendation is that
the periods of separation referred to in the Divorce (Scotland) Act 1976 should
be reduced to one year and two years respectively. The disappearance of divorce
for desertion is consequential on this.2
1.3 The recommendation which we now make is less radical
than the main options for reform on which we sought views in the discussion
paper on the ground for divorce published in May 1988.3
The purpose of a discussion paper is to elicit comments and it is clear from
the comments which we received4 and from
the results of a public opinion survey which we commissioned5
that more radical reform, while it would be strongly supported by
many, would be equally strongly opposed by many others. No reform of the divorce
law will please everyone. We received, for example, comments suggesting, at
one extreme, divorce on demand in a registrar's office and, at the other extreme,
a return to the pre-1938 position where the only grounds for divorce were adultery
and desertion and where not even extreme cruelty was a ground for divorce. We
believe that the modest reform which we recommend in this report will go a long
way to meet the main criticism of the present law and will meet with general
support from a broad middle band of responsible opinion.
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