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Scottish Law Commission:
Report on Reform of the Ground for Divorce

Part II Reasons

Why reform?

2.1 In the light of our consultation we are satisfied that the main criticism of the present law is that the separation periods are too long. This in turn leads to an excessive use of the behaviour ground, with the undesirable consequences noted below. There are other criticisms of the present law, but these are less important.⁶

2.2 The extent of use of the different grounds⁷ for divorce is shown by the following table.

Divorces Granted in Scotland by Grounds⁸

It is clear that many divorce actions are still based on the behaviour of the defender. In many cases the behaviour of the defender will be the real cause of the breakdown of the marriage and will be felt by the pursuer to justify an immediate action for divorce. There is reason to believe, however, that many actions are raised on the ground of behaviour simply because of the length of the separation periods.⁹ The pursuer would prefer not to make allegations against his or her spouse but is advised that unless behaviour is used there will be a delay of at least two years from the date of separation and that even then the defender may make difficulties over giving consent. The result is an action on the ground of behaviour in circumstances where the defender's behaviour would not be founded on if a separation ground provided an equally acceptable remedy.

2.3 In the discussion paper we suggested that the unnecessary use of the behaviour ground was undesirable.¹⁰

"There may, in some cases, be an unnecessary dredging up of incidents which would be best forgotten, an unnecessary emphasis on blame and recrimination and an unnecessary increase in bitterness and hostility.... Even if the pursuer's case is justified it may not help the relationship between the parties to have it set out in detail. If the pursuer's case is exaggerated, or unfairly one-sided, or not entirely true, the position is worse. The defender may resent the allegations made against him or her but may well be advised that there is no point in defending. To a feeling of bitterness may be added a feeling of injustice. Of course, if the defender decides to defend or to raise a cross action for divorce on the basis of the pursuer's behaviour (which nowadays is unusual) the scene is set for an unsavoury, destructive and costly process of mutual recrimination."

We were careful to point out that this criticism was likely to apply in only some cases and that, quite apart from cases where the atrocious behaviour of the defender was the real cause of breakdown and bitterness, there were likely to be cases where the defender was unconcerned about allegations made against him or her (even if incidents were exaggerated or taken out of context) being content to regard them as part of the paperwork necessary for a quick divorce. Nonetheless we thought that some defenders were likely to feel understandable resentment at the allegations made against them,¹¹ and that, quite apart from the defender's attitude, it was not very constructive or civilised for the pursuer in a divorce case to be asked by his or her solicitor to recount the worst things the other spouse had done in the marriage to see if a behaviour case existed. We suggested that a good divorce law would try to minimise aggression in the interests of the parties and, very importantly, their children. Later in the paper, we referred to the increased awareness, since 1976, of the benefits of conciliation in divorce¹² and quoted the view of a leading exponent of conciliation that:

"A legal process which facilitates agreement can help couples to re-organise their lives and relationships in a humane and civilised way, whereas a process which concentrates on establishing which spouse is the guilty party increases antagonism and discourages constructive solutions." ¹³

2.4 The length of the separation periods required by the present law means not only that there is unnecessary use of the behaviour ground but also that there may be a considerable delay in regulating the property consequences of a marriage breakdown. This is particularly obvious if there is substantial property involved, if the defender refuses consent to a divorce, and if intolerable behaviour or adultery cannot be proved. One woman who wrote to us said that she had been ill-treated by her husband for years but could not use his behaviour as a ground for divorce because she had no witnesses.¹⁴ He owned substantial property (all in his name) to which she had contributed by hard unpaid work.

"He won't consent after two years so that means 5 more years to wait. How long then before a settlement? I left home as I stood with no money.... I've been in Women's Aid Refuges, etc.... Push with all your might to change the Divorce laws. I'm an honest to goodness woman and its shocking being treated so unfairly. I'll be fifty in six years' time. Will I get a mortgage then I wonder!"

2.5 The purpose of the separation periods in the present law is to provide a reasonably reliable indication that the marriage has in fact irretrievably broken down. It seems to us that the present periods of two or five years are much longer than is necessary for that purpose.

2.6 It appears from our consultation and public opinion survey that shorter separation periods would now be generally acceptable. Many consultees favoured much more radical reform such as divorce on the sole ground of a short period of separation or notice. Many consultees (including most legal consultees) even when opposed to more radical reform favoured a shortening of the separation periods. The respondents in the public opinion survey were not asked what would be appropriate separation periods if adultery and behaviour were to be retained as grounds for divorce but they were asked what would be an appropriate period if a period of separation were to be the sole ground for divorce. The options presented were 3 months, 6 months, 9 months, 1 year, 2 years, more than 2 years and "Don't know". Respondents had already been shown a card which pointed out that an argument for a long period of separation was that it would not make divorce seem too quick and easy and that arguments against a long period of separation (as the sole ground for divorce) were that it could force people to raise extra legal proceedings to make temporary arrangements about custody or finance during the period of separation, could delay the final settlement of finance and property and might be difficult for people who wanted to remarry. The breakdown of responses was as follows¹⁵

2.7 We accept, of course, that the arguments for a very short period are much stronger if there are no fault grounds to provide an immediate remedy. Nevertheless we think that these figures suggest that there would be public support for a shortening of the present separation periods. There is, to put it at its lowest, no overwhelming objection to the idea that someone might be divorced, or might obtain a divorce, after, say, a period of separation of one or two years.

2.8 The answer to the question "Why reform?" is, in short, that the separation periods in the present law are too long. Their length encourages an over-use of the behaviour ground, which is undesirable for the reasons given above, and may cause hardship in some cases by delaying the regulation of the economic aspects of the marriage breakdown. The periods are longer than is necessary to establish irretrievable breakdown. Our consultation and research suggest that a shortening of the periods would be widely supported.

Why reform now?

2.9 In our discussion paper we set out not only criticisms of the present law but also arguments for retaining it. We pointed out that the present law was considered satisfactory by Parliament in 1976 and that, arguably, not much had changed. We noted that in recent years there had been a number of important changes in relation to divorce procedure and the financial consequences of divorce and that the courts, officials and the legal profession were still in the process of adapting to these changes. We asked whether it was sensible to change divorce law again so soon. This question was asked in all seriousness. We thought that a general view might be that, while the present law on the ground for divorce could be criticised, there was no need for reform at the present time. The first question in the discussion paper was therefore:

"Is it worth proceeding further with consideration of possible reform of the ground for divorce at this time?"

The responses to this question indicate that there is strong support for proceeding further with consideration of reform at the present time. We were particularly interested to note the support for early reform from the Law Society of Scotland and other legal bodies and groups,¹⁶ from the judges who commented, from the Convention of Scottish Local Authorities (commenting from a social work point of view), from the Scottish Marriage Guidance Council and from the Director of the Scottish Association of Family Conciliation Services. Most of these comments were from people with direct personal experience of dealing with divorce and its effects. We were also particularly interested to note the support for reform expressed by a number of organisations representing women's interests,¹⁷ and by organisations with a special interest in the problems of divorced people.¹⁸ The responses from those churches which commented were more varied. All were opposed to the more radical options for reform mentioned in the discussion paper but not all excluded the possibility of minor modifications to the present grounds.¹⁹ Two were strongly opposed to any liberalisation of the grounds for divorce and believed the present grounds were too wide.²⁰ The responses from individual commentators were also varied. Some favoured early reform of a radical nature. Others favoured more limited reform. Others opposed any liberalisation of the present law. A petition signed by 76 signatories disapproved of the more radical options mentioned in the discussion paper.²¹

2.10 The results of the public opinion survey were interesting. Respondents were presented with a brief written statement of the present law and of some criticisms of it. ²² They were then asked

"In your opinion, should there be any change in the law on the ground for divorce?"

At this stage they had not been given any options for reform. 40% thought there should be no change. 39% thought there should be and the rest were undecided. Among those with personal experience of divorce 56% favoured a change in the law.²³ Later in the interview, after respondents had been asked for their views on two options for reform (divorce on the sole ground of a period of separation: divorce on the sole ground of a period of notice) they were asked a "summing up" question as to their preference between various options. 34% favoured a period of separation, 14% favoured a period of notice, 15% favoured either of these but had no preference for one or the other, 5% supported some other reform, 21% thought there should be no change in the present law, and 11% were undecided.²⁴ Of those with personal experience of divorce only 11% thought there should be no change in the law.²⁵ We were anxious to give respondents the type of information they would have received on reading our discussion paper, so that we could compare the results of the survey of a representative sample of the adult population with the responses from the self-selected respondents to the discussion paper. This is why respondents were given the information set out in the report of the survey.²⁶ The fact that this information was given must, of course, be taken fully into account in assessing the results but we nonetheless think it is significant that, after being presented with certain criticisms of the present law and certain options for reform, 68% of the respondents favoured a change.²⁷ Of those with personal experience of divorce 81% favoured a change.²⁸

2.11 To sum up, we thought at the time of our discussion paper that there might well be a general view that the present law on the ground for divorce was open to criticism but that the time was not yet ripe for reform. There turned out to be much more support for early reform than we had anticipated. In the light of the responses received on consultation and the results of the public opinion survey we conclude that there is substantial support for early reform of the ground for divorce, particularly from those who have personal or professional experience of the working of the present law.

Why the particular reform recommended?

2.12 A reduction of the periods of separation to one year (with the defender's consent to divorce) or two years (even without such consent) would meet the criticism that the periods of separation required by the present law are too long but would not alter the fundamental nature and structure of the present divorce law, would not make things more difficult for the victims of serious matrimonial offences, and would not, we believe, go beyond what is acceptable to a broad spectrum of responsible opinion. It should channel many actions from the behaviour ground to the less recriminatory separation grounds.

2.13 The periods chosen are, of course, arbitrary within a certain range. Various suggestions were made to us. The Law Society of Scotland suggested 6 months with consent and 2 years without consent. The Scottish Law Agents' Society suggested 1 year with consent and 3 years without consent. The Society of Solicitors in the Supreme Courts of Scotland suggested 1 year with consent and 2 years without consent. Some members of the Council of the Society of Writers to Her Majesty's Signet favoured 6 months with consent and 2 years without consent: others favoured 1 year with consent and 2 years without consent. Various other consultees suggested either 6 months with consent and 2 years without consent, or 1 year with consent and 2 years without consent. The public opinion survey showed that, in relation to separation as the sole ground for divorce, 51% of respondents favoured 1 year or less and 70% favoured 2 years or less. Some consultees expressed the view that a period of about a year was necessary for separated spouses to adjust to the new situation. The advantage of a period of 6 months, in cases where the defender consents, is that this would enable more cases to proceed on the separation ground rather than on the behaviour ground. If the parties have been separated for 6 months and if they are agreed that there should be a divorce then it seems reasonably safe to assume that the marriage has irretrievably broken down. We can, therefore, see considerable attractions in the Law Society's proposal. Nonetheless, in the light of the comments received by us, we believe that a period of 1 year with consent would be likely to command wider public support and approval at the present time. There is clearly a fairly widespread concern that to allow divorce after a period of separation of less than a year would alter the public perception of marriage as a serious long-term commitment. This concern may or may not be justified but it undoubtedly exists and has to be taken into account.

2.14 A few consultees suggested that the period of separation required should be the same (say, 1 year) whether or not the defender consented to divorce.²⁹ The Royal Commission on Legal Services in Scotland suggested in 1980 that the two separation grounds should be replaced by one, so as to eliminate "the opportunity for what amounts to 'blackmail' in the present arrangements".³⁰ We ourselves referred in the discussion paper to the distortion of bargaining power caused by the requirement of consent for the use of the shorter separation period. We thought this might be a possible criticism of the present law.³¹ Few consultees, however, seemed to regard this as a serious criticism. One view expressed was that it was perfectly legitimate for a spouse who had not contributed to the marriage breakdown in any significant way and who did not wish a divorce to be able to negotiate his or her consent in exchange for some financial advantage. The bargaining power of the spouse who is asked to consent would, in any event, be reduced considerably if he or she could delay a divorce for only one year. It is, of course, arguable that if a couple have been separated for a year then it is reasonable to conclude that the marriage has irretrievably broken down, whether or not the other party consents. We can see force in that argument. There is also, however, some force in the argument that if separation for 2 years is required before it can safely be assumed that a marriage has irretrievably broken down where one party refuses to consent to divorce, then a shorter period may suffice where both parties agree to a divorce. This is the justification for the short period of 6 months suggested by a number of consultees for the case where the defender consents. Although there is clearly a case for having only one separation period, as suggested by the Royal Commission on Legal Services, our consultation suggests that the retention of two periods is likely to be more generally acceptable at the present time.

2.15 In the discussion paper we said that one possible criticism of the present law was that it was misleading. It pretended that there was one ground for divorce-irretrievable breakdown-whereas in reality there are five. We observed, however, that this criticism could be met by the argument that it did not matter if the law was misleading in this respect. It was just a matter of words which did not affect what actually happened. Of those consultees who commented on this point few seemed to be concerned about it. Indeed some thought that there were advantages in the irretrievable breakdown formula and were anxious to retain it. Thus, the Church of Scotland's Board of Social Responsibility considered that "the conception of irretrievable breakdown as the sole ground for dissolving a marriage captures conceptually something which is central to most people's view of marriage, and which is of value, that is that marriage of its essence involves a kind of permanence and/or unconditional commitment such that marriage is to be persisted in unless it has irretrievably broken down

We agree that there is value in the idea of irretrievable breakdown as the sole ground for divorce. We would add that the use of this concept provides an underlying principle which makes clear the purpose of the specific "facts" of adultery, intolerable behaviour and separation. Adultery and intolerable behaviour are mentioned in the legislation, not to enable one party's faults to be publicly established or exposed, but simply because, when coupled with an application for a divorce, they provide a reasonably reliable indication that the marriage has irretrievably broken down. Periods of separation are mentioned, not to make divorce difficult, but simply because, when coupled with an application for a divorce, they also provide a reasonably reliable indication that the marriage has irretrievably broken down. It would be possible to retain the idea of irretrievable breakdown as the underlying policy of the law while not mentioning it in the legislation. This would avoid the rather odd effect of saying in the Act that "The sole ground for divorce is X. X is established if, and only if, the pursuer proves A, B, C or D". It seems preferable, however, to retain a statement of the underlying principle in the Act so that there can be no argument about it and it is not forgotten, even if this does produce a rather odd verbal formula. It is for these reasons that we recommend the retention of the irretrievable breakdown formula in the law on the ground for divorce.

2.16 We are recommending the deletion of desertion followed by separation for two years as a ground for divorce. There is no place for it if a divorce can be obtained in any event after a separation for two years. One consultee suggested that desertion by itself (without any subsequent period of separation) should be a ground for divorce. This would, we think, give rise to very difficult questions as to whether a separation was desertion by one party or the other or was by mutual consent. It would also be open to abuse. It would be very easy to stage a collusive case of desertion. Above all, desertion which was not followed by an adequate period of separation would not, in our view, provide a reasonably reliable indication that a marriage had broken down irretrievably. Those who leave home in situations of stress or conflict often return. We do not therefore think that there is any justification for retaining desertion as a ground for divorce, even with a shorter period of separation or none at all. The statistics quoted above show that the use of desertion as a ground has declined dramatically since the introduction of the separation grounds.³² It has always been a difficult ground legally, largely because the attitudes and intentions of both parties are relevant, and its removal now, in the context of a reduction in the length of the separation periods, would simplify the law without causing any hardship or difficulty.

2.17 A few consultees suggested minor changes in the behaviour, adultery or separation grounds. It was suggested, for example, that the behaviour ground should be described as "inharmonious" or "unacceptable" behaviour, that adultery should not be mentioned separately, but should just be regarded as one type of behaviour justifying a divorce, and that separation should be defined so as to exclude separation under one roof and separation for some reason other than the breakdown of the marriage. We think that each of these suggestions could prove controversial and that the last could give rise to as many difficulties as it would solve. So far as we are aware the existing concepts of adultery, behaviour and separation³³ have worked reasonably well since the 1976 Act and we do not recommend any change in them at this time.

2.18 In the discussion paper we suggested that a possible criticism of the present law was that it might actually encourage a married couple to separate, or remain apart, in order to obtain or retain grounds for divorce. This did not seem to be regarded by our consultees as a serious criticism. We also suggested in the discussion paper that the co-existence of the separation grounds and the fault grounds provided an incentive to commit perjury in order to obtain an earlier divorce. Again this did not seem to be regarded as a serious criticism. One comment was that it was not a valid criticism of the law that some people abused it. A third possible criticism of the present law mentioned in the discussion paper was that the law on the grounds for divorce was more complicated and technical than it might be. A single ground for divorce based on, say, separation or a period of notice would remove some legal problems. Again this did not seem to be regarded as a serious criticism by our consultees. The recommendation made in this report would not meet the minor criticisms mentioned in this paragraph so well as the more radical options put forward for consideration in the discussion paper. The criticisms, however, were not thought to be very weighty and our recommendation would help to reduce still further such weight as they may have. Thus there would be less of a disincentive to resume cohabitation for a few months³⁴ if a new ground for divorce could be established after a period of one year's separation (plus consent) instead of two as at present. There would be less of a temptation to present a false case based on behaviour or adultery if a divorce could be obtained after separation for one year (plus consent) instead of two. And the removal of the desertion ground would simplify the law to some extent.

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