Opinion: Jane Mair

Family law rarely hits the headlines in Scotland, so I have watched with interest the growing profile of the divorce law reform agenda in England & Wales: a carefully orchestrated campaign in The Times; regular media slots for family law practitioners; a well-timed storyline in The Archers.

Add to that the final episode in the Supreme Court of the tragic tale of Mr and Mrs Owens, an archive of long campaigns and failed reforms and a wealth of contemporary research evidence, and it is not surprising that the UK Government has finally bowed to pressure. With publication of the Ministry of Justice consultation, Reducing family conflict: Reform of the legal requirements for divorce, interest and debate show no signs of abating. All very interesting to observe, but what, if anything, does this English story hold for Scotland?

Scots lawyers are well used to fake news about “UK” law, and recent reporting of divorce reform has been no exception. When Scots law does get a mention, it is generally presented as a beacon of success, a jurisdiction which has already seized the prize of “no-fault divorce”. That too is not quite accurate. Our 1976 Act is no more “no-fault” in structure than England’s Matrimonial Causes Act 1973. After all, we borrowed their compromise, albeit we have managed to reduce the waiting periods.

Does it matter that our statute remains something of a muddle between fault and no-fault? As the Scottish Civil Justice Statistics confirm annually, no-fault divorce is the norm, by a long way. While 60% of divorces in England & Wales are granted on fault, or conduct, grounds, in Scotland it is only about 6%. Couples in Scotland divorce through no-fault non-cohabitation, the vast majority of them via the cheap and simplified procedure. Our system seems to work. But is that good enough?

What the statistics show is where the legal process of divorce ends, but we know much less about where it begins. We glimpse occasional legal difficulties in cases such as Ray v Ray, caused by a shift through time from an initial claim of fault to reliance on separation. Solicitors will know from their individual practice how common this pattern is, but there is no shared public evidence. Research has highlighted the considerable harm that allegations of “fault” may cause, and the Ministry of Justice, in its current proposals, is clear that it wants not simply to limit reliance on fault, but more radically to remove the possibility of fault being used at all in the legal process.

Allegations of fault are likely to increase hostility, with all the possible repercussions that brings for post-divorce parenting. So perhaps we need to worry more about how fault is being used along the route to divorce in Scotland, rather than focus on how little it features as a final destination.

Much is made of the shorter separation periods in Scotland and the benefits they bring, but here too we should probe behind the statistics. In 2005, almost 6,000 divorces used the shorter two years plus consent, whereas just over 3,000 waited for five years. By 2015-16, with the reduced separation periods bedded in, 2,307 were granted on the basis of one year’s non-cohabitation with consent while 6,088 relied on two years’ separation without consent. Perhaps two years is the optimum time to wait. Perhaps Scottish spouses benefit from a period of reflection and readjustment – and possibly some interim aliment. Are there other reasons for the shift towards separation without consent? During that time how many couples are struggling financially to live apart? How many continue to endure a harmful or coercive relationship until the point where they are absolutely certain of decree? We have little evidence to inform the debate.

Past experience is an unreliable predictor, but it is worth remembering that the Scottish divorce reforms of 1976 and 2006 both had their origins in English proposals. It may be tempting to let Scots divorce lie, but arguably better to seize this opportunity, reflect on the English experience, and research and review our own provisions. Adultery has surely had its day? The interim gender recognition route is unlikely to survive broader change in gender recognition.

If divorce reform does make it onto the agenda in Scotland, we have an excellent starting point in the Scottish Law Commission’s Discussion Paper 76 from 1988. Its preliminary proposal, sadly set aside in favour of much less radical reform, was strikingly similar to the divorce by notice proposals now under consultation in England & Wales.