England’s now got a ‘no fault’ divorce, but the law’s still different in Scotland

Whether north or south of the border, the consensus seems to be that allowing couples to end their marriages with more dignity and less conflict is a positive move, write Savita Sharma and Nikki Hunter

Divorce can be said to be a bereavement where the parties involved are very often highly emotional. Laying blame is often the default whereas in reality, more often than not, it takes two to bring a marriage to its end. In England and Wales 'nofault' divorce will come into effect on 6 April 2022.

This is the biggest reform to divorce Law in England in 50 years. Removingthe fault-based element of divorce is a positive change where couples are able to apply either solely or jointly for divorce, on an amicable basis. It provides the ability to apply for a divorce without having to establish that the other party is at fault. instead, they only have to provide a statement to the effect that there is irretrievable breakdown of marriage.

How does this differ from the law of divorce in Scotland?

In Scotland the ground of divorce is the same as in england which is" irretrievable breakdown of a marriage ". This must be established byev id en cing(i.e.proving) one of the following:

(a) the other party has committed adultery;

(b) the other party has behaved in such a way where the party (who wishes the divorce) cannot reasonably be expected to cohabit with that party;

(c) the parties have not cohabitated for one year and the other party consents; or

(d) the parties have not co habitat ed for two years( consent is not required for this ground).

Notwithstanding the fact the irretrievable breakdown of the marriage has to be proven with corroborating evidence (unlike the new law in England), relying on either of the non-cohabitation grounds is often referred to as a "no-fault divorce" in Scotland. A party who disputes any of the four grounds can defend the application for divorce There is a common misconception in scotland that if the irretrievable breakdown of a marriage can be established by evidencing" f au lt"(i.e. adultery or unreasonable behaviour) the suffering party will be rewarded financially. This is not the case, except in very limited circumstances.

The “no-fault” divorce in England goes well beyond the scottish system. This means, in Scotland, if you are unable to satisfy a court that whateverground you are relying upon has been established, your divorce will be refused. This is in contrast to Englandnow where a declaration of irretrievable breakdown of a marriage is sufficient and as such it cannot be opposed (i.e. defended) or require consent from the other party.

There are other differences. For example, in England, divorce and finances proceedings are separate, whereas in Scotland they are connected. Therefore, becoming divorced in England does not preclude either party from seeking financial provision from the other after the divorce has been granted . However, in scotland, once a divorce or dissolution has been granted, that brings the parties right to seek an order for financial provision from the other to an end, save for in very limited circumstances.

These differences are only the tip of the iceberg. Whilst in some cases, people are limited to which court they are entitled to raise proceedings, in other cases they may have the option of raising in Scotland or England. Raising proceedings in Scotland may yield a significantly different outcome in respect of how the matrimonial assets are shared than if proceedings were to be raised in England (and vice versa) given the emphasis set out in the respective legislation. It can often be the difference between a good outcome or a better outcome. It is very important that parties seek expert legal advice as soon divorce proceedings are contemplated, or divorce papers received.

Irrespective of whether parties divorce under the new law in England and Wales or in Scotland, the overwhelming consensus seems to be that allowing couples to end their marriages with more dignity and less conflict can only be seen as a positive change which will help the way couples approach divorce and other related matters.

Savita Sharma is a Consultant and Nikki Hunter is an Associate, Morton Fraser