Adultery divorces in Scotland

There is a common misconception that rates of divorce have continued to increase in recent years, when in fact there has been a 15% decline since the peak in 1985. The fall in the number of divorces in Scotland has also, in part, been attributed to the decreasing number of marriages. This insight explores adultery as a ground of divorce in Scotland and the reasons why it is so infrequently used.

Grounds of divorce in Scotland

The grounds of divorce are detailed in Section 1 of the Divorce (Scotland) Act 1976. Most commonly, for a court to grant a decree of divorce, it must be established that the marriage has broken down irretrievably by proving one of the following:

•  That the other spouse has committed adultery (although parties to a same-sex marriage cannot establish irretrievable breakdown by adultery).

• That the other spouse has behaved in such a way that the applicant spouse cannot reasonably be expected to cohabit with that other spouse (unreasonable behaviour).

• Non-cohabitation for one year or more and that the other spouse consents to the divorce decree being granted.

• That the spouses have not cohabited for at least two years (with no consent required from the other spouse being necessary)

An action for divorce may also proceed if it is established that an interim gender recognition certificate has been issued to either party to the marriage, however, this is very unusual. The most common grounds for divorce in Scotland are non-cohabitation for 1 or 2 years. While there are 'fault' grounds of divorce in Scotland, namely adultery and unreasonable behaviour, these are less commonly used to establish irretrievable breakdown of the marriage.

What is adultery?

Often clients raise the issue of adultery as the root cause of their irreconcilable difference. In Scots law, the definition of adultery is when a married person has voluntary sexual intercourse with a person who is not their spouse (known in Scotland as the 'paramour'). With this definition, adultery can only be committed between two people of the opposite sex. However, if one party to a marriage has had a voluntary sexual relationship with someone of the same sex, while not technically adultery, it will likely constitute unreasonable behaviour.

In order to establish that a marriage has broken down irretrievably by adultery, sufficient evidence of said adultery must be produced. This may be in the form of affidavits (sworn statements to the court). Usually, affidavits will require to be signed by the adulterer and the paramour. It will come as no surprise that it may be very difficult to obtain an affidavit from a paramour, who may not wish to be involved in divorce proceeding. If the paramour will not swear an affidavit, the spouse seeking divorce will require to obtain alternative evidence, which can be extremely onerous and time consuming to obtain.

It is worth noting that adultery as a ground of divorce can only be relied upon by the party who did not commit adultery, i.e. if a wife commits adultery, she could not then rely upon the ground of adultery and raise an action of divorce on that ground. Adultery is not a ground for dissolution of civil partnership.

My spouse cheated – will they be punished in the divorce?

In short, the answer is no. It is a common misconception that one spouse can be 'blamed' for the divorce and that any 'bad behaviour' will be considered by the court when making an award for financial settlement. This is not the case. If one party to a marriage commits adultery, it will have no bearing on the financial aspect of any settlement. The focus will be on the fair division of the matrimonial property regardless of conduct.

Evolution of the law in Scotland v England & Wales

Prior to 2006, Scotland and England & Wales were aligned in terms of the system for divorce. The sole ground in both jurisdictions was irretrievable breakdown of marriage which required to be established by one of the following:

• Adultery.

• Unreasonable behaviour.

• Desertion for 2 or more years.

• 2 years separation with the consent of the other spouse.

• 5 years separation without the consent of the other spouse.

After the 2006 act, however, the law was changed in Scotland to abolish the ground of desertion and reduce the periods of separation to 1 year with consent and 2 years without consent. The law in England and Wales was not changed until last Spring. From 6 April 2022, the law in England and Wales is now that no proof of fault is required. Prior to this, unless adultery, desertion or unreasonable behaviour could be proven, applicants required to live separately from their spouses for five 5 years to be divorced.

Divorce is one of the most stressful and emotive experiences a person can go through regardless of the grounds upon which you are raising proceedings. If you required advice in relation to a separation or divorce, please get in touch.