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

Part III Rejected options

Introduction

3.1 One option which we have rejected, for the reasons given above, is retention of the present law unaltered. In this part of the report we explain why we are not recommending various other options on which we sought views in the discussion paper.

Period of Separation as Sole ground for divorce

3.2 In the discussion paper we invited views on the possibility of having a period of separation as the sole ground for divorce. This has a number of advantages but we pointed out that, unless the period of separation were short, it would also have disadvantages. There could be a long wait for a divorce even for a spouse who was the victim of extreme cruelty, or a spouse whose husband or wife was openly living in adultery. There could be a duplication of proceedings in some cases because, instead of proceeding straight to a divorce for adultery or behaviour, it would be necessary to obtain orders relating to custody or aliment or the occupancy of the matrimonial home to regulate the position during the period of separation. There could also be difficulties for some spouses in finding separate accommodation for a lengthy period prior to a divorce. The weight of these objections would be less if the period of separation were, say, three months but it is clear from our consultation and survey that such a short period would be unacceptable. There would be objections to the idea of a spouse who had committed no matrimonial offence being divorced against his or her will after such a short period. Although a period of separation as the sole ground for divorce attracted considerable support from the respondents to the public opinion survey, and indeed emerged as the preferred solution in the answers to the last question asked,³⁵ it attracted little support and a good deal of opposition from those who responded to the discussion paper. There was a widely held view that, while the unnecessary use of the behaviour or adultery grounds was to be deplored, there were cases where the use of these grounds was not only unobjectionable but also necessary if the interests of the pursuer were to be properly protected. There were cases where the defender's behaviour had been such that it was unnecessary to wait for one or two years before concluding that the marriage had broken down irretrievably, and where delay in raising a divorce action would mean either delay in regulating questions of accommodation and finance or an undesirable duplication of proceedings. We think that there is a great deal of force in these arguments. We have more doubts about some of the other arguments that were put to us for retention of the fault grounds for divorce-for example, that an innocent spouse should be able to have his or her innocence and the other spouse's guilt publicly affirmed by a court of law-but we need not go into that. We are persuaded that it would be undesirable to have a period of separation of a year or longer as the sole ground for divorce and have therefore rejected this option.

Period of notice as Sole ground for divorce

3.3 Another option on which we invited views in the discussion paper was that the sole ground for divorce should be a period of notice. One spouse would give notice to the other party and to the court of an intention to divorce. After the lapse of a specified period of time, without any need for the parties to have been separated during the time, a divorce could be obtained. Again we pointed out that if the period of time were long there would be grave disadvantages in this option. The arguments on this point are much the same as in the case of a period of separation as the sole ground for divorce except that, as the parties could still live together during the running of the period, there would not be the same problems in relation to obtaining separate accommodation. There might, however, be other problems in such cases. The atmosphere in the household after notice of divorce has been given does not need much imagining. Another difficulty with the period of notice ground is that it could either delay a divorce unnecessarily in a case where the parties had already been separated for some time prior to the giving of notice or else force a spouse into giving precipitate notice in order to keep his or her options open. Separating spouses are often unclear about their position and their intentions.³⁶ They may take a long time to decide on a divorce. A period of notice as the sole ground for divorce does not seem well-adapted to this very common type of situation. It was for these reasons that we thought that a period of notice as the sole ground for divorce would be a realistic option only if the period were short.

3.4 There was a good deal of support on consultation for a period of notice as the sole ground for divorce. The main reasons given for supporting it were that it would take fault out of the grounds for divorce, would help to minimise bitterness and hostility, and would be an honest recognition that if one spouse wants a divorce, and persists in that stance after an adequate period for reflection, then the marriage is effectively over. The period favoured by the respondents to the discussion paper was often 6 months, although a number preferred a year. Nonetheless, although the amount of support was such as to justify our decision to put forward this option for consideration, it fell well short of majority support. Most consultees, and an overwhelming majority of legal consultees, were against this option. The most fundamental objection was that divorce on demand, after a period of notice, would weaken the institution of marriage. This point of view was expressed by many consultees. Whether it is right or wrong as a matter of fact-and many would argue that it is not from a strict law of divorce that the institution of marriage derives its great strength-the point of view is undoubtedly widely held, and very strongly held, and must be taken fully into account in any consideration of reform. The other commonly stated objections to a period of notice as the sole ground for divorce were concerned with the effects, which we have already mentioned, of depriving pursuers of an early remedy by way of divorce in cases of intolerable behaviour, adultery or long-standing separation. In terms of an underlying policy of irretrievable breakdown as the justification for divorce, it could be said that one concern was that a period of notice would not provide a sufficiently weighty indication of irretrievable breakdown,³⁷ and another concern was that a period of notice would be an unnecessary and undesirable impediment in cases where there was already a sufficiently serious indication of irretrievable breakdown. There is no inconsistency between these two concerns: a period of notice could be insufficient in some cases and unnecessary and undesirable in others. Another objection put to us concerned the timing of the notice and the effects of this on some recipients. It was pointed out that a spouse who had just been abandoned for someone else would feel an understandable sense of anger and bitterness if he or she received an immediate notice from the guilty spouse of intention to divorce. We think there is some force in this point and that in this respect a period of notice ground could be more damaging than a separation ground. In the case of a separation ground the basis of the divorce is the neutral fact of separation, rather than, as it were, unilateral repudiation, and the legally effective divorce papers arrive after a year or more of adjustment to the fact of separation and breakdown. This is likely to be much less hurtful than the receipt of an immediate notice of intention to divorce. Yet another objection was that the threat of a notice of intention to divorce would be used by dominant spouses against more vulnerable spouses.

3.5 The period of notice option attracted a good deal of support from the respondents to the public opinion survey, particularly from those with personal experience of divorce.³⁸ So far as the length of the period was concerned the responses were as follows.³⁹

In the responses to the final "summing up" question, however, the period of notice option was less favoured than the period of separation option and attracted only minority support.

3.6 It seems very clear from our consultation and public opinion survey that there would be little support for, and very strong opposition to, a short period of notice (say, 3 or 6 months) as the sole ground of divorce. There would be more support for a period of notice of about a year, but there would be serious objections to this as the sole ground for divorce and very strong opposition from some quarters. Our conclusion is that we cannot recommend a period of notice as the sole ground for divorce in Scotland at the present time.

Other options

3.7 We mentioned various other options in the discussion paper. Some, such as the Canadian solution,⁴⁰ we have already referred to in passing. None received much support on consultation. A few consultees referred to the "process over time" option suggested by the English Law Commission in their discussion paper on the ground for divorce.⁴¹ This is conceptually similar to the period of notice option discussed above, although it is only fair to add that the English Commission envisaged a period of at least nine or twelve months and saw the period not only as a time for reflection but also as a time during which positive steps would be taken to resolve all the practical consequences of the marital breakdown. This is an area where legal and procedural differences in the two countries could well be important. A few consultees suggested options not mentioned in the discussion paper. Some of these suggestion- such as divorce on demand in a registrar's office-would, we think, meet with even stronger opposition at the present time than the options mentioned in the discussion paper. Our recommendation in this report is based very largely on the results of our consultation. Opinions may change over the years in the light of experience. In rejecting other options and suggestions we do not mean to imply that they must be rejected for all time.

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