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

Appendix D

Excerpt from a report of a survey by System Three Scotland on Proposed Changes to the Divorce Law dated 13 September 1988.

A. Background

In May 1988, the Scottish Law Commission published a discussion paper (No.76) entitled, "The Ground for Divorce: should the law be changed?". The aim of this discussion paper was to stimulate debate on whether the current divorce law should be changed, and to propose some options for reform. A similar discussion paper is being published by the Law Commission for England and Wales.

To gauge public opinion on this subject, the Scottish Home and Health Department, on behalf of the Scottish Law Commission, appointed System Three Scotland to undertake an opinion survey amongst a representative sample of the Scottish adult population. Questions were inserted on the Scottish Opinion Survey, the monthly omnibus survey undertaken by System Three Scotland, during the period 28 June to 5 July 1988. A sample of 969 adults was interviewed in-home, in 38 sampling points throughout Scotland.

To ensure that there was an adequate base for analysis amongst those respondents with personal experience of divorce, the same questions were repeated in the omnibus survey at the end of July, 21-26 July. However, in this survey, only those respondents with direct experience of divorce were asked all the question-the remainder were "filtered out" after the first 2 questions.

Both data-sets were weighted using the JICNARS National Readership Survey of July 1986- June 1987, to ensure that the sample was representative of the Scottish adult population in terms of age, sex and social class.

A copy of the questionnaire used in the survey is appended.

[Note by Scottish Law Commission. The detailed tabulations appended to System Three Scotland's Report are not reproduced in this Appendix.]

B. Summary of main findings

The following paragraphs highlight the main findings from this analysis of the survey data:

1. The profile of the sample in terms of current marital status was as follows:

In terms of the respondents' experience of divorce, the distribution was as follows:

The sub-sample (n = 190) of those with personal experience of divorce was defined as:

• those respondents who have been through a divorce (n = 154);
• those respondents who are currently getting divorced (n = 38).

More than 1 answer was allowed for this question, consequently, a minority of respondents may have described themselves as belonging to both these categories.

2. 40% of all respondents believed that there should be no change in the law on the ground for divorce; 39% thought that there should be, with over a fifth (22%) claiming to be undecided.

Certain "segments" of the population were more likely to believe that the present law should be changed, including:

It should be noted that this question was asked after the respondent had been provided with some information on the current law and ground for divorce.

3. Information on 2 proposed options for amending the law was provided to respondents prior to them being asked for their opinion of these options, and a preference, if any, between them.

First of all, opinion was evenly divided on an amendment to the law which would make the only ground for divorce, a period of separation between the 2 partners-46% in favour, with 43% opposed, and 11% claiming to be undecided.

Those more likely to favour such an option included:

• those who are divorced (51%) or separated (56%);
• those aged 35-54 years;
• those with personal experience of divorce (54%).

As regards the period of separation, the distribution was as follows:

• 24% favoured less than 1 year;
• 27% favoured 1 year;
• 19% favoured 2 years;
• 14% favoured more than 2 years.

Those with personal experience of divorce tended to favour a shorter period of separation, as did those who favoured such a proposal:

4. The second option considered was that the only ground for divorce should be the passing of a period of time after one party had given official notice of an intention to seek a divorce. 49% of all respondents were in favour of such an option, with 37% opposed to it-14% claimed to be undecided.

Those more likely to favour this option included.

As regards the period of notice required under this proposal:

• 25% said less than 1 year;
• 25% said 1 year;
• 18% said 2 years;
• 13% more than 2 years.

Once again, those with personal experience of divorce favoured a shorter period of notice as did those who supported this proposed change to the law:

It is evident that, in considering the 2 proposed options independently of each other, there is no significant difference in the level of support for one, as opposed to the other.

5. However, on being asked to choose between the 2 proposed options, the "separation" proposal was preferred by a third of all respondents, compared to 14% selecting the "notice" option. A fifth (21%) felt that there should be no change to the current law-a proportion which is significantly lower than the 40% who previously believed that there should be no change to the divorce law. 15% believed that either of the 2 options would be acceptable, without expressing a preference and a minority 5% thought that some other option would be preferable. 11% claimed to be undecided.

Examining the preference for one option as opposed to the other, across the

population, revealed the following points:

• those in the AB social class were a little less likely to favour the "separation" option and a little more likely to prefer the "notice" option;
• while divorced respondents were likely to favour both of the options, compared to the population as a whole, separated respondents were more inclined to favour the "separation period" rather than "period of notice".

The following table outlines some of the detailed responses to this question by those respondents directly involved or committed to some change in the current legislation:

Amongst those respondents who believed that there should be some change in the current law, the proposal for a period of separation between the 2 partners appears to be the preferred choice.

C. Conclusions

On the basis of the preceding analysis of the survey data, the following conclusions can be highlighted:

1. On exposure to some background information on the operation of the current law on the ground for divorce, it is evident that the majority of respondents believed that there should be some change to the legislation. Excluding those who claimed to be undecided, 76% expressed a preference for a change in the current legislation:

• 38% favouring the period of separation option;
• 16% the period of notice option;
• 17% either of these;
• 5% something else.

2. As would be expected, those respondents who have had personal experience of divorce are even more likely to support the need for a change to the existing law:

• 45% preferring the period of separation;
• 22% the period of notice;
• 16% either of the options.

3. As regards the actual period of notice or separation, there was a strong tendency for around a year, in both proposals. Once again, those with personal experience of divorce are more likely than the population in general to support as short a time period as possible.

QUESTIONNAIRE USED

Research on Divorce

Name.............................................................................................................

Address.........................................................................................................

REMEMBER TO FILL IN NAME AND ADDRESS ON THIS SECTION IMMEDIATELY AFTER COMPLETION OF THE QUESTIONNAIRE

The next few questions are all about the ground for divorce, that is, the basis on which people apply to the courts for a divorce. These are being asked because the Scottish Law Commission is seeking public views on whether there should be a change in the current ground for divorce. They are particularly interested in the views of those who have had direct experience of divorce themselves, or are about to do so.

SHOW CARD

This card sets out the present law on the ground for divorce and some criticisms that have been made of it. Could you take a minute or two to read it through?

F.3 In your opinion, should there be any change in the law on the ground for divorce?

The Scottish Law Commission wants to find out the opinions of members of the public on TWO main suggestions for a new ground for divorce. These suggestions would only change the basis on which a person applied for a divorce. They would not change the law on custody of children or financial support.

IMPORTANT NOTE

THE ORDER OF ASKING F.4 AND F.5 SHOULD BE ROTATED. PLEASE TICK THE BOX TO INDICATE WHICH QUESTION YOU ASKED FIRST

F.4 SHOW CARD

Could you read this card which explains one of the main suggestions being considered by the Scottish Law Commission. (a)Would you approve of a law under which the only ground for divorce was a period of separation?

(b) SHOW CARD

If there were to be such a law, what period of separation would be the most appropriate?

F.5 SHOW CARD

Could you read this card which explains one of the main suggestions being considered by the Scottish Law Commission.

(a) Would you approve of a law under which the only ground for divorce was the passing of a period of time Yes after one party had given official notice of an intention No to seek a divorce? Don't know

(b) SHOW CARD

If there were to be such a law, what period of time would be the most appropriate?

F.6 SHOW CARD

Just to sum up, would you prefer the law on the ground for divorce to be

The present law

At present, the only ground for divorce is that the marriage has broken down irretrievably, but this has to be proved in one of S ways. These are:

(1) adultery;

(2) intolerable behaviour;

(3) desertion for 2 years; (4) 2 years' separation plus the other party's consent;

(5) 5 years' separation (no consent needed).

Criticisms of the present law

(a) It is confusing. The present law says that the only ground for divorce is irretrievable breakdown but then says that there has to be adultery, intolerable behaviour, desertion, 2 years' separation and consent or 5 years' separation.

(b) The legal grounds for divorce do not necessarily reflect the real reasons for the breakdown of the marriage. For example, a person may be divorced for intolerable behaviour or adultery when in fact both were at fault.

(c) It places too much emphasis on fault. A divorce on the "ground" of behaviour may involve a dredging up of incidents which would be best forgotten. It may increase bitterness and hostility and make it more difficult for the couple to agree on such things as finance, custody and access.

(d) The separation periods are too long. This encourages people to use the behaviour "ground" and sometimes to exaggerate or lie, in order to obtain an earlier divorce. A delay of two or five years may make it more difficult and expensive to deal with the legal consequences of marriage breakdown.

(e) The need for consent to divorce after 2 years' separation may lead to unfair bargaining. For example one party may only give consent if the other gives up any claim for finance.

Under this suggestion, the only ground for divorce would be that the couple had been separated for a fixed period.

Advantages of "separation" ground

It would remove the notion of blame or fault. This could help to make divorce less hostile and bitter.

There would be less risk of unfair pressure or bargaining because consent would not be needed.

The law would be simpler and less confusing.

Disadvantages of "separation" ground

Divorce might not be so quickly available in cases of adultery or intolerable behaviour, but this would depend on the length of the period.

There might be legal difficulties in some cases in deciding when a couple had separated.

Arguments for a long period of "separation"

It would not make divorce seem too quick and easy.

Arguments against a long period of "separation"

A long period could force people to raise extra legal proceedings to make temporary arrangements about custody or finance during the period of separation and could delay the final settlement of finance and property.

A long period might be difficult for people who wanted to re-marry.

Under this suggestion, either party could give notice, on a standard form, at the sheriff court of intention to apply for a divorce. A copy would be sent to the other party. If they wished the couple could give notice jointly. There would then be a fixed waiting period. At the end of that period a divorce action could be raised. The only ground for divorce would be that the notice had been given and the necessary period of time had passed. The couple would not need to be separated during the period.

Advantages of "period of notice" ground

It would remove the notion of blame or fault. This could help to make divorce less hostile and bitter.

There would be less risk of unfair pressure or bargaining because consent would not be needed.

The law would be simpler and less confusing.

Disadvantages of "period of notice" ground

Divorce might not be so quickly available in cases of adultery or intolerable behaviour, but this would depend on the length of the period.

Arguments for a long "period of notice"

It would not make divorce seem too quick and easy.

Arguments against a long "period of notice"

A long period could force people to raise extra legal proceedings to make temporary arrangements about custody or finance during the period of notice and could delay the final settlement of finance and property.

It would be unreasonable to expect a couple who had already been separated for a long time to wait for a further long period after giving notice.

A long period might be difficult for people who wanted to re-marry.

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