The UK government has finally committed to reform divorce law in England and Wales. The purpose of the reform is to help couples to divorce less acrimoniously, by shifting away from a blame culture and by encouraging amicable agreement. The announcement has been welcomed by family lawyers, and others, who have long campaigned for such change.
In England and Wales, separated couples have to wait two years to divorce; even when they have jointly decided that divorce is what is best for their family unit. If there is no agreement about the matter of divorce, a spouse has to wait five years before he or she can divorce.
The result is that most divorces in England and Wales are raised on the basis of the unreasonable behaviour of one of the parties. Official statistics from 2017, show that 37% of divorces raised by men relied on the unreasonable behaviour of his spouse. Of the divorces raised by women, 52% were based on unreasonable behaviour.
The statistics from England and Wales are in stark contrast to the position in Scotland.
The latest official figures detailing the basis for divorces in Scotland are the 2015-16 statistics. During that period, 94% of Scottish divorces were granted due to the simple fact that a married couple no longer lived together. This is not new in Scotland; it has been the position for around 20 years. Therefore, it has long been the case that the overwhelming majority of divorces are granted without blame being pinned on either party.
The reason is simple. A couple can agree to divorce after one year of living separately. Divorce can be granted after two years of separation, even in the face of refusal by the other party.
Attributing blame within, or determining the fate of, separating couples is something the Scottish courts rarely have to do. Figures released by the Scottish Government earlier this month show that in 2017-2018, less than 4% of Scottish divorces were defended.
The figures should not come as a surprise to Scottish family lawyers. It is important that they guide couples away from litigation, if at all possible. Not only is that economical for parties, it also protects future family relations. The legal framework and the alternative methods of dispute resolution available in Scotland provide the tools which make that relatively easy for family lawyers in Scotland.
The statistics from Scotland show that the legal framework can help divert couples away from a blame game. The UK government intends to fundamentally reform the legal framework. The plan is to remove entirely the need for a specified period of time to elapse before seeking a divorce. That of course goes one step further than the current position in Scotland. Will Scotland follow suit? Watch this space…