Extensive research shows that ongoing conflict following a couple's separation has serious negative effects on not only the couple themselves as individuals, but also on their children.
The UK Government have this week announced that there will be a radical reform of divorce law in England and Wales, aimed at reducing ongoing conflict and facilitating better outcomes for children.
Announcing introduction of the new "no-fault" divorce regime, the Government proposes to abolish the need to prove any blame or fault, or to wait an extended period. Instead, one of the parties, or both of them jointly, will be able to simply provide a formal statement that their marriage has broken down irretrievably in order to apply for divorce.
To ensure sufficient time is allowed for reflection and an opportunity to turn back on taking the step to divorce, a six month minimum time period will be imposed from the time the application is made, until the divorce is finally granted. The new law will also remove the opportunity to contest or oppose an application for divorce (although not the opportunity to contest in relation to financial or child related remedies, which can still be disputed).
At present, there is no timescale for the new legislation that will bring in these changes, but lobbyists and other supporters hope that even in the present busy political climate, Parliament will make time to bring them into effect without delay.
We in Scotland may have thought we were ahead of the game compared to our English counterparts when in 2006, we reduced the time limits for "no-fault" divorces and abolished the seldom used desertion, although adultery and behaviour remained part of our divorce law. However, it now seems that we risk being the ones lagging behind with divorce laws that still require the proof of blame, or an extended period of separation, putting us firmly out of line with current social thinking.
At present, there are no Scottish Government proposals for change, but will that now follow?
New Law in England | Current Law in Scotland |
| Ground for divorce "irretrievable breakdown" | Ground for divorce "irretrievable breakdown" |
| No proof required of fault; or a minimum period of separation; or consent by the other party. Instead only a statement of there being irretrievable breakdown. | Simple application with a statement confirming either one year separation (with signed consent); or two year separation available only where no children under 16 and no outstanding financial issues. Otherwise: proof required of one of :- (a) adultery (b) behaviour (c) 2 years' separation (d) One year separation and the other party consents |
| Divorce application made by one party, or both jointly | Divorce application made by one party |
| No option to contest or oppose. Divorce will not be granted until minimum period of six months has passed since application raised - to allow time for reflection - unless expedited by the court where appropriate. | Application can be contested or opposed by offering to prove that the other party cannot prove adultery, unreasonable behaviour, or two years' separation (one year separation needs consent so in absence of consent cannot be proved by the applicant). Separate ground for divorce : issue of an interim gender recognition certificate. |
