Family Law Bill
Stage One Debate
Briefing note
Making no-fault divorce quicker and easier
The Scottish Executive wants to cut the time needed to wait for a divorce on the grounds of
separation. It wants to cut the waiting time for a non-contested divorce from two years’ to one
year’s separation, and from five years’ to two years’ separation for a contested divorce. Under
this proposal, it would be easier to get out of a marriage than a hire purchase agreement.
The Justice 1 Committee reported that: “The majority view in the Committee is that, at this
stage, insufficient social research evidence has been received by the Committee to justify the
Executive’s specific proposals to reduce the separation periods to two years (where consent
from both parties does not exist) and one year (where there is consent).” 1
The Executive has argued that these reductions are needed because some separated
spouses use a ‘fault’ ground such as adultery or unacceptable behaviour to achieve a
speedier divorce. But this cannot be right. In Scotland 82% of all divorces are via the
separation grounds; only 18% of divorces are via the ‘fault’ grounds. If divorces could be
achieved more speedily via the fault grounds, then these would be used far more than they
are. In England and Wales 68% of divorces are via the fault grounds – where evidence is
routinely faked by spouses and lawyers. This is a great contrast to Scotland, where divorce is
taken far more seriously and procedurally there are no cutting corners.
Under the current system many reconcile
We believe reducing the waiting periods will reduce the chance for reconciliation. A significant
number of divorces are dropped each year by couples who decide to remain married. In the
last period for which exact figures were available (1989-1993) an average of almost 1,700
divorces were dropped each year – 16% of all divorces initiated.2 According to the Civil Law
Division of the Executive, these precise statistics tracking divorces on a case-by-case basis
ceased to be recorded in 1993.
Whilst statistics are no longer tracked on an individual case basis, we can look at the
difference between total divorces initiated and divorces granted. The sizeable difference year
on year can only mean that a large proportion of divorce cases are dropped because the
couple decide to remain married.
In 2001 5,904 divorces were initiated, but only 4,857 were disposed of – a difference of 1,047.
In 2002 6,422 divorces were initiated, but only 4,618 were disposed of – a difference of 1,804.
The figures for 1999 and 2000 show a much smaller difference. The average over the four
years is 13%. We are confident that this is a strong indication, given that it is similar to the
figure of 16% recorded exactly until 1993.3
The plans emphasise mediation (asset splitting and custody)
rather than reconciliation (saving the marriage)
The Executive wants to promote ‘mediation’ (which attempts to smooth the path to divorce).
There is little or no promotion of ‘reconciliation’ (which attempts to save marriages through
counselling).
1
8th Report of the Justice 1 Committee, 2005 (Session 2), SP paper 401, para. 50
Civil Judicial Statistics Scotland editions 1989-1993, Table 8. The table shows each year the number of divorces disposed of
“out of court”.
3
The figures are taken from Civil Judicial Statistics Scotland editions 1999-2002, Table 3.7 – the Executive informs us that the
2003 edition is not yet published.
2
In England the Family Law Act 1996 tried a similar approach. Greater use of mediation was a
central feature of the Act. Part II of The Family Law Act 1996 required a divorcing spouse to
attend an information meeting prior to initiating proceedings. At the information meeting the
divorce petitioner was informed about the option of reconciliation counselling to save the
marriage or mediation to manage the consequences of break up without litigation. The
information meetings were piloted for two years. Official findings were published in 2001.
They show that twice as many couples opted for reconciliation than mediation. “Some 14 per
cent of attendees went to counselling in the 7 months following their attending an information
meeting…A relatively small number of attendees used mediation services. Some 7 per cent
went to mediation in the 7 months following their attending an information meeting.” 4
Another finding of the pilot study was that most people preferred proper legal advice to
mediation. “Some 59 per cent of attendees consulted a solicitor in the 7 months following their
attending an information meeting.”5 The failure of mediation in the pilots was one reason why
the Westminster Government repealed Part II of the Act. Announcing the Government’s
intention to repeal of Part II the Act, Lord Irvine, the then Lord Chancellor, said, “Compulsory
information meetings, intended to help couples either to save their marriages or to end them
with minimum distress and acrimony, are central to Part II. Different types of information
meetings have been tested in pilot schemes for two years. But the research concludes that
none of the six models of meeting was good enough for the implementation of Part II on a
nationwide basis…” 6
Giving cohabitants marriage-like rights
The Executive rightly admits that cohabitation is not an alternative to marriage, it is temporary
arrangement that usually results in marriage. The Executive has said, “…cohabitation is
primarily a transitional state often lasting around 2 to 3 years; about two-thirds of cohabiting
couples proceed to marry and about one-third separate.”7 Cohabiting couples that have a
child and do not marry are six-and-a-half times more likely to split up after the birth of the child
than a married couple.8 Cohabitants can have the rights of married couples at any time by
simply getting married – as about two-thirds of them do.9
Allowing the marriage of in-laws
The Executive wants to change the ‘forbidden degrees’ of marriage so that a woman can
marry her father-in-law or a man his daughter-in-law. It is true to say that present law allows a
woman to marry her father-in-law if her husband and her mother-in-law (his wife) have died.
The law permitting this (introduced in 1986) already breaches the Western Tradition’s
understanding of incest, though cases where both existing spouses have died must be very
rare.
But under the Bill such marriages will be allowed after divorce where all the people are still
living. Take the fictional example of David and Anne, whose son Fergus is married to Jane.
David decides he wants to marry Jane and begins a relationship with her. David divorces
Anne and his actions lead to the divorce of Fergus and Jane. His grandchildren would be left
to cope with the fact that Granddad David has divorced their Grandmother Anne, and also
destroyed the marriage of their parents. And when David marries Jane, he becomes the
children’s stepfather as well as their grandfather – and their father Fergus becomes their
stepbrother. Jane becomes stepmother to her ex-husband (because she is married to his
father).
Under the Bill, an entire family could be plunged into turmoil because of two divorces caused
by the manipulation of one man. This is hardly a child-centred proposal.
The Christian Institute, August 2005
Tel: 0131 226 3555
4
Information Meetings and Associated Provisions within the Family Law Act 1996: Key Findings From the Research, Lord
Chancellor’s Department, January 2001, page 3
5
Ibid, pages 3-4
6
Lord Chancellor’s Department Press Release, Divorce Law Reform – Government Proposals to Repeal Part II of the Family
Law Act 1996, 16 January 2001
7
Family Matters: Improving Family Law in Scotland, Scottish Executive, 2004, page 5
8
Population Trends, 98, Winter 1999, ONS, page 19
9
Family Law (Scotland) Bill Explanatory Notes, The Scottish Parliament, 2005, page 23, para. 102