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Scottish Law Commission:
Report on Reform of the Ground for Divorce
Part IV
Other matters
4.1 In this part of the report we discuss various matters
other than the ground for divorce itself which were brought to our attention
by consultees.
Children
4.2 Many consultees were concerned about the serious effects
of marriage breakdown on children of the marriage. We share this concern. It
is important to keep in mind, however, that it is the marriage breakdown, and
not the legal divorce, which is important in this connection. Where a marriage
has broken down, and the parties have been separated for one or two years, delaying
a legal divorce for a further period will not help the children. We do not,
therefore, believe that the recommendation in this report would have adverse
effects on children. Indeed one of the main reasons for trying to reduce unnecessary
use of the behaviour ground is to try to minimise unnecessary hostility in the
interests of the children of the marriage.
Ailment and financial provision
4.3 The obligation of aliment between spouses ceases on divorce.
It follows that an earlier divorce means an earlier cessation of aliment for
a spouse who is in receipt of aliment. However, a claim for financial provision
on divorce can be made and the law on financial provision on divorce is designed
to enable a suitable award to be made whenever this is justifiable and the resources
of the other spouse permit.42 In some cases
the award must take the form of a fixed sum (which might have to be payable
by instalments out of income) rather than an indefinite and variable periodical
allowance, but that seems irrelevant. Although one or two consultees expressed
concern that a shortening of the 5-year separation period to two years would
reduce the time during which a dependent spouse could receive aliment as a spouse
(as opposed to financial provision on divorce) we do not think that it would
be right to keep a dead marriage in existence for this purpose. In some cases
the shortening of the separation periods would be positively advantageous from
the point of view of financial provision on divorce in that it would allow an
earlier settling up of the parties' affairs. It is worth noting, in particular,
that under the Family Law (Scotland) Act 1985 the value of the matrimonial property
which is subject to the norm of equal division on divorce is normally ascertained
as at the date of the final separation of the parties.43
A delay of five years in the actual making of an order for financial
provision on divorce may merely lead to avoidable difficulties.
Occupancy rights in the matrimonial home
4.4 Although a spouse's statutory occupancy rights in the matrimonial
home under the Matrimonial Homes (Family Protection)(Scotland) Act 1981 cease
on divorce,44 the court on granting divorce
has power to make an order giving that spouse occupancy rights after the divorce.45
Occupancy rights under such an order do not give rise to the conveyancing
problems caused by section 6 of the 1981 Act (which protects occupancy rights
against "dealings" by the entitled spouse) because this section does not apply
to them. The court also has power to transfer a tenancy from one spouse to the
other46 and, on divorce, to make an order
for the transfer of an owner-occupied home from one spouse to the other.47
In short the court dealing with a divorce has adequate powers to deal
with the occupancy, tenancy or ownership of the matrimonial home after divorce.
In some cases the award of a capital sum on divorce enables alternative accommodation
to be obtained. In many cases involving owner-occupied matrimonial homes the
home is in the spouses' joint names, so that statutory occupancy rights do not
arise. For all these reasons we do not think that the shortening of the separation
periods need give rise to problems in relation to occupancy rights. In some
cases it will be beneficial. Statutory occupancy rights were never intended
to enable a separated husband or wife to occupy the other spouse's house rent
free for an indefinite period after separation and there will be some cases
where the shortening of the separation periods will enable an unsatisfactory
position to be resolved earlier than it could otherwise have been.
Matrimonial interdicts
4.5 A court granting a matrimonial interdict48
must in certain circumstances attach a power of arrest to the interdict.49
This enables a police constable to arrest without warrant the person
interdicted if the constable has reasonable cause for suspecting that person
of being in breach of the interdict.50 The
power of arrest ceases, however, to have effect on the termination of the marriage.
Moreover, a power of arrest cannot be attached to an interdict granted against
a former spouse prohibiting conduct in relation to the other former spouse or
the former matrimonial home. Such an interdict would not be within the definition
of a matrimonial interdict.
4.6 In their comments on the discussion paper
Scottish Women's Aid supported, subject to important reservations, the idea
of removing so far as possible the friction and adversarial nature of divorce
proceedings. They accepted the need to keep the time span of separation grounds
short. However, they added this qualification.
"Our support for reform of divorce law which has the effect
of shortening the period of separation required would be solely conditional
on protective remedies being available for abused women after divorce. This
would include the extension of powers of arrest, granted under the Matrimonial
Homes (Family Protection) (Scot-land) Act 1981, beyond the divorce, and also
the possibility of having such powers of arrest attached to any interdict granted
under the Act after divorce. Without these extensions women in abusive marriages
might have no option but to stay married to violent men in order to retain the
limited protection offered by the police and criminal justice system. In addition
we would be concerned that violent men would be able to obviate protective measures
which had been granted against them by applying for divorce."
This is an important point. The arguments, however, are not
entirely one way. It is clear, for example, that a divorced spouse has the same
protection against assault or breach of the peace as any other citizen and we
find it difficult to believe that someone who had been separated for one or
two years would choose not to seek a divorce, which he or she wanted for other
reasons, solely in order to retain the benefit of a matrimonial interdict with
power to arrest. We are not convinced that this question is very closely linked
to a shortening of the separation grounds, at least in the context of the modest
reform which we are now recommending. People who are violent and abusive to
their spouses will very often be divorced for behaviour and we are proposing
no change in that respect. In our view the questions of the duration of a power
of arrest attached to a matrimonial interdict and of attaching a power of arrest
to an interdict against a former spouse are questions which arise independently
of reform of the ground for divorce. Any examination of those questions should
not delay implementation of the recommendation in this report. So far as duration
is concerned, one possibility might be to provide that a power of arrest should
not terminate on divorce but should cease to have effect, unless previously
recalled, on the expiry of a specified time (say, five years) from the date
when it was granted. This would have the added advantage of enabling the police
records of matrimonial interdicts with powers of arrest to be cleared of interdicts
which were no longer alive. Clearly, however, these questions relating to powers
of arrest are important questions on which differing views might well be held.
One question of principle which would have to be addressed is, for example,
the justification for attaching a power of arrest to an interdict relating to
conduct between former spouses but not to interdicts relating to conduct between
other people. In the absence of consultation it would be inappropriate for us
to make any recommendations on these matters in this report.
Conciliation
4.7 A number of consultees stressed the advantages of conciliation
in divorce and the need for a properly funded and comprehensive conciliation
service. A few advocated mandatory referral to conciliation in certain circumstances.
While we can see the great advantages of conciliation and share the view that
it should be available to all those who seek help in resolving the difficulties
associated with marriage breakdown, particularly difficulties relating to children,
we are aware that there are differing views as to the appropriateness and practicability
of mandatory conciliation.51 This
is not something on which we would wish to make recommendations without the
benefit of full consultation.
Judicial separation
4.8 The scheme of the Divorce (Scotland) Act 1976 is that the
grounds for judicial separation should be the same as for divorce with the omission
of the reference to irretrievable breakdown of the marriage. This is achieved
by providing that section 1 of the Act (on the ground for divorce) is to apply
to an action for separation with any necessary modifications. It follows that
an amendment of section 1 of the Act would automatically affect the grounds
for separation as well as the grounds for divorce. This seems to us to be appropriate.
United Kingdom context
4.9 We have kept in contact with the Law Commission for
England and Wales on this subject. They published an extensive discussion paper
in 198852 but it will be a little while
before they are able to report, principally because the field work on a public
opinion survey which they had commissioned took place only in December 1988.
In these circumstances we have had to decide whether to hold up our report.
As the results of our consultation and research seemed to us to point clearly
in the direction of the recommendation made in this report and as, whatever
happens in England and Wales, we could not ignore the weight of Scottish opinion,
we have concluded that there would be no advantage in holding up our report.
Indeed its early publication may be of value to those who are considering related
areas of law and procedure.
4.10 Although one or two consultees stressed the desirability
of having the law on the ground for divorce the same in Scotland and England,
we do not believe that this is of great importance, provided that the availability
of divorce is broadly equal in the two countries. There have been periods in
the past when the divorce laws in the two countries were very different and
even today there are minor differences of law and quite significant differences
in procedure. We do not believe that this gives rise to any difficulty. The
question of jurisdiction in divorce is regulated by the Domicile and Matrimonial
Proceedings Act 1973, which provides that one of the parties must be domiciled
in Scotland on the date when the action is begun or must have been habitually
resident in Scotland for a year immediately prior to that date.53
A divorce granted by a court in one part of the United Kingdom is fully recognised
throughout the United Kingdom.54
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