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Divorce Law in Scotland: Not Entirely without Fault: LV v IV, X v Y and Douglas v Douglas

Document Cited authorities 3 Cited in Related
Vincent
DOI10.3366/elr.2019.0551
Published date01 May 2019
Date01 May 2019
Pages236-242
INTRODUCTION

Divorce law is currently on the family law reform agenda in England and Wales. The combined impact of a major research report, Finding Fault? Divorce Law and Practice in England and Wales,1 a very high profile and “troubling”2 case, Owens v Owens, and the introduction of a Private Member's Bill3 into the House of Lords has had the effect of raising divorce law reform from a longstanding, but background, concern to a pressing priority.4 In September 2018, the Ministry of Justice launched a consultation entitled Reducing family conflict: Reform of the legal requirements for divorce 5 and, while the outcome of that consultation is as yet unknown, reform seems likely. The current high profile of divorce law in England and Wales is in contrast to the reform landscape in Scotland. The Scottish Government is certainly active in the area of family law but “divorce law is not thought to be on its agenda”.6 The Scottish Law Commission has included aspects of family law in its Tenth Programme of Law Reform 7 but, while the precise focus of the planned reform project has not yet been confirmed, divorce has not been highlighted as a priority. Why should the position be so different in the two jurisdictions when their statutory grounds for divorce share much in common?

 A TALE OF TWO SYSTEMS: SIMILAR IN FORM BUT DIFFERENT IN PRACTICE

According to the Matrimonial Causes Act 1973,8 and the Divorce (Scotland) Act 1976, both systems provide for divorce in the event of irretrievable breakdown of the marriage.9 In both, irretrievable breakdown must be established in accordance with a fixed set of factual situations – adultery, unreasonable or intolerable behaviour,10 desertion, or non-cohabitation, the latter either with or without consent.11 As a result of reform of the Scottish legislation in 2006, desertion no longer applies in Scotland12 and the original separation periods of two years where the defender consents and five years regardless of consent, which still apply in England and Wales, have been reduced to one year and two years respectively.13 The framework is therefore broadly similar in both systems albeit the waiting periods, the procedure and the broader family law systems are different.

The current campaign for divorce reform in England and Wales has focused specifically on the issue of “fault” and, in that context, there are interesting comparisons between the jurisdictions. Structurally, both systems are based on the same model which, behind an apparently neutral mantra of “irretrievable breakdown”, relies on a combination of fault (i.e. adultery, desertion14 or behaviour) and no-fault (i.e. separation or non-cohabitation) methods of proof. When it comes to the role of fault in practice, however, the picture from each jurisdiction is very different. While 60% of divorces in England and Wales in 2015–16 were granted on one of the fault grounds, principally adultery or behaviour, in Scotland only 6% were so granted.15 While in terms of the legal rules themselves, Scotland is no more “no-fault” than England and Wales, in practice the granting of divorce is almost fault-free and it is perhaps this difference in how the law works that explains the urgent calls for divorce reform south of the border while in Scotland it is not perceived as a problem.16

 A TRIO OF CONDUCT CASES

Against that background, three recent Scottish judgments have been published, in each of which divorce was...

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