I recently asked my smallest child what divorce is and she calmly advised that it's when the parents argue about who keeps the guinea pig. As I am (mercifully) not a guinea pig owner, I am fairly confident that she is either launching a campaign for a new pet, or that she has acquired much of her family law knowledge from the telly.
There is an abundance of negative connotations associated with the world of relationship breakdown, but in today's society, does it always need to be somebody's fault?
You may have heard of the term "no fault" divorce. Since 6 April 2022, it has been possible to obtain a "no fault" divorce in the jurisdiction of England and Wales. This allows an individual or joint divorce application to be made to court, essentially on the basis that one or both of the parties no longer wish to be married. Importantly, there is no need to blame the other spouse, which can assist in taking some of the heat out of what may already be a very difficult situation.
Where couples have had a connection to a number of different countries throughout their lives (as may be the case for those with ex-pat roles), there may be the opportunity to "forum shop" to determine the "best" (or most favourable) country in which to divorce. However, for most couples that option is not available.
Accordingly, we are often asked whether no fault divorce or no fault dissolution of civil partnerships exists in Scotland. In Scots Law, the grounds for divorce are irretrievable breakdown of the relationship, or the issuing of an interim gender recognition certificate. "Irretrievable breakdown" is established on the basis of one of the following:
- Adultery
- Unreasonable behaviour
- The parties having been separated for a period in excess of one year (with the other party consenting)
- The parties having been separated for a period in excess of two years
It is therefore possible for parties to divorce in Scotland without the requirement to attribute blame, although a joint application is not yet possible and the waiting periods remain relatively lengthy. In England and Wales the irretrievable breakdown of the marriage cannot be disputed, whereas there is always the possibility to dispute this (where there is sufficient evidence to do so) in Scotland.
As the central heating cranks back into life, chocolate oranges begin to line the supermarket shelves and we turn towards the season of proposals, those considering popping the question may still feel daunted by the prospect of what may happen should things not work out down the line, so to them, I offer a few words of reassurance:
- Litigation is not an inevitability: the vast majority of parties who are separating (whether at the end of a cohabitation, a marriage or a civil partnership) do not require the assistance of the court to make a determination as to the division of finances.
- Contracts may be your friend: a well drafted pre-nuptial or pre-cohabitation agreement will give both parties some certainty, protect family wealth and act as an "insurance policy" (one which you hope never to need).
- Take the time to find the right solution for you: whilst some disagreements do require a determination from a third party (such as a judge or an arbitrator), many can be negotiated in the forum of mediation, collaborative practice or by way of joint meetings.
A highly negative view of divorce, dissolution or separation is one which continues to permeate our media. Whilst there are some separations which fall very firmly, and at times for good reason, into the acrimonious category, it is not always necessary for this to be the case. Perhaps, then, it is time to change the narrative.
For more information or to speak with one of our family lawyers, please get in touch.
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