Divorce law and should it be updated in Scotland?

Susan Grierson-Rattray (Complete Clarity Solicitors and Simplicity Legal)

by Susan Grierson-Rattray, Senior Solicitor at Complete Clarity Solicitors and Simplicity Legal

SHOULD divorce in Scotland be made even easier than it already is? This is a question which divides not only legal professionals engaged in the arena of family law, but also opinion in wide cross-sections of society.

It is fair to say that matters have moved on somewhat since the Middle Ages when matrimonial cases were heard by bishops’ courts, with an ultimate right of appeal to the Pope.

These days the Simplified Divorce Procedure, under which the majority of divorces are granted, is essentially a form-filling exercise, so straightforward that it is often known as “a DIY divorce”. 

Within this procedure, the parties must have been separated for a year, if there is consent to divorce being granted, or for two years, in which case consent is not required. It can only be used where are no outstanding financial matters and no children of the marriage under the age of sixteen.

In Scotland in 2021-22, 8,249 divorces were granted – 98 of those to same sex couples – and the majority (57%) were granted under the Simplified Procedure. Generally, however, there has been a downward trend in the number of divorces – down 11% between 2012-13 and 2021-22 – which could be linked to the fact that there has also been a decrease in the number of marriages. 

If the criteria for the Simplified Divorce Procedure are not met, the more complex Ordinary Cause procedure must be used, and the parties are likely to need to engage the services of a solicitor.

In all cases the court must be satisfied that the marriage has irretrievably broken down with no prospect of reconciliation – that is the “ground for divorce”. Irretrievable breakdown can be established by the length of separation (a year, if there is consent of the other spouse, or two years, in which case consent is not required), unreasonable behaviour or adultery.

In all cases where there are children of the marriage under the age of 16, regardless of whether there are financial matters to resolve, the Ordinary Cause procedure must be used.  This is because the court needs to be satisfied that there are no issues relating to the welfare of the children before the divorce is granted.

So, should divorce be made easier? We should remember that divorce is the formal procedure which legally brings a marriage to an end – once divorce has been granted by the court there is no going back. 

Religious aspects and arguments regarding the sanctity of marriage aside, if parties have financial claims which they don’t pursue, once the divorce has been granted, they will no longer be able to make those claims. 

The current system means there are checks and measures in place to safeguard against losing those claims. Arguably, the system means there are also checks in place to safeguard the welfare of any children of the marriage.  

Against that, if parties are satisfied there are no financial matters to sort out and that there is no prospect whatsoever of them reconciling, why do they need to wait for a year to apply for divorce (unless using the fault based grounds of unreasonable behaviour or adultery)?

Also, what business is it of the court what the arrangements are for the children of the marriage where the parties are not asking for court orders to regulate those arrangements?

Divorce law in England and Wales was significantly changed in 2022 to accommodate “no-fault” grounds. Does there need to be change in Scotland as well?

Susan Grierson-Rattray is a Senior Solicitor at Complete Clarity Solicitors and Simplicity Legal.

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