SCOTTISH LAW COMMISSION (Scot Law Corn No 116) Report on ~ e f o r mof the Ground for Divorce Laid before Parliament by the Lord Advocate under section 3(2) of the Law Commissions Act 1965 Ordered by the House of Commons to be printed 27th April, 1989 EDINBURGH HER MAJESTY'S STATIONERY OFFICE £4.50 net The Scottish Law Commission was set up by section 2 of the Law Commission Act 1965 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Davidson, Chairman, Dr E M Clive, Professor P N Love, CBE, Sheriff C G B Nicholson, QC, Mr W A Nimmo Smith, QC. The Secretary of the Commission is Mr K F Barclay. Its offices are at 140 Causeway- side, Edinburgh EH9 1PR. ISBN 0 10 229389 9 Scottish Law Commission Item 14 of our Second Programme of Law Reform Reform of the Ground for Divorce To: The Right Honourable the Lord Fraser of Carmyllie, QC, Her Majesty's Advocate We have the honour to submit our Report on Reform of the Ground for Divorce. (Signed) C K DAVIDSON, Chairman E M CLIVE PHILIP N LOVE GORDON NICHOLSON W A NIMMO SMITH KENNETH F BARCLAY, Secretary 13 February 1989 Contents Page Paragraph 1 1.1 PART I RECOMMENDATION PART I1 REASONS Why reform? Why reform now? Why the particular reform recommended? PART 111 REJECTED OPTIONS Introduction Period of separation as sole ground for divorce Period of notice as sole ground for divorce Other options PART IV OTHER MATTERS Children Aliment and financial provision Occupancy rights in the matrimonial home Matrimonial interdicts Conciliation Judicial separation United Kingdom context APPENDIX A Excerpt from Divorce (Scotland) Act 1976 APPENDIX B Draft Divorce (Scotland) Bill APPENDIX C List of those submitting written comments APPENDIX D Excerpt from System Three Scotland's Report of a Survey on Proposed Changes to the Divorce Law Part I Recommendation 1.1 The Divorce (Scotland) Act 1976 provides that the only ground for divorce is that the marriage has broken down irretrievably. Irretrievable breakdown can be established only by proving (a) adultery (b) intolerable behaviour (c) desertion followed by separation for two years (d) separation for two years plus the other party's consent to divorce or (e) separation for five years.' For the reasons given later in this report, we recommend that: The ground for divorce in Scotland should continue to be the irretrievableb reakdown of the marriage. It should be possible to establish irretrievable breakdown only by proving (a) adultery (b) intolerable behaviour (c) separation for one year plus the other party's consent to divorce, or (d) separation for two years. The draft Bill appended to this report would, if enacted, give effect to this recommend- ation. 1.2 It will be seen that our main recommendation is that the periods of separation referred to in the Divorce (Scotland) Act 1976 should be reduced to one year and two years respectively. The disappearance of divorce for desertion is consequential on this.? 1.3 The recommendation which we now make is less radical than the main options for reform on which we sought views in the discussion paper on the ground for divorce published in May 1988..' The purpose of a discussion paper is to elicit comments and it is clear from the comments which we received4 and from the results of a public opinion survey which we commissioned5t hat more radical reform, while it would be strongly supported by many, would be equally strongly opposed by many others. No reform of the divorce law will please everyone. We received, for example, comments suggesting, at one extreme, divorce on demand in a registrar's office and, at the other extreme, a return to the pre-1938 position where the only grounds for divorce were adultery and desertion and where not even extreme cruelty was a ground for divorce. We believe that the modest reform which we recommend in this report will go a long way to meet the main criticism of the present law and will meet with general support from a broad middle band of responsible opinion. 1. This is slightly simplified. The actual words of the Act are set out in Appendix A. It should be noted in particular that we use "intolerable behaviour" as a short description of the fact referred to ins 1(2)(b) of the Act-namely that "since the date of the marriage the defender has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender." 2. See para 2.16. 3. The Ground for Divorce: should the law be changed? (Discussion Paper No. 76). 4. A list of those who submitted comments is given in Appendix C. We are most grateful to all who responded. 5. The survey was carried out by System Three Scotland. Their Report of a Survey on Proposed Changes to the Divorce Law (1988) is reproduced in Appendix D, without the detailed tabulations. Part I1 Reasons Why reform? 2.1 In the light of our consultation we are satisfied that the main criticism of the present law is that the separation periods are too long. This in turn leads to an excessive use of the behaviour ground, with the undesirable consequences noted below. There are other criticisms of the present law, but these are less important.' 2.2 The extent of use of the different groundsZf or divorce is shown by the following table. Divorces Granted in Scotland by Grounds3 Behaviour 2 years 5 years Adultery Desertion Total separation separation It is clear that many divorce actions are still based on the behaviour of the defender. In many cases the behaviour of the defender will be the real cause of the breakdown of the marriage and will be felt by the pursuer to justify an immediate action for divorce. There is reason to believe, however, that many actions are raised on the ground of behaviour simply because of the length of the separation period^.^ The pursuer would prefer not to make allegations against his or her spouse but is advised that unless behaviour is used there will be a delay of at least two years from the date of separation and that even then the defender may make difficulties over giving consent. The result is an action on the ground of behaviour in circumstances where the defender's behaviour would not be founded on if a separation ground provided an equally acceptable remedy. 2.3 In the discussion paper we suggested that the unnecessary use of the behaviour ground was unde~irable.~ "There may, in some cases, be an unnecessary dredging up of incidents which would be best forgotten, an unnecessary emphasis on blame and recrimination and an unnecessary increase in bitterness and hostility.. . . Even if the pursuer's case is justified it may not help the relationship between the parties to have it set out in detail. If the pursuer's case is exaggerated, or unfairly one-sided, or not entirely 1. See paras 2.14, 2.15 and 2.18 below. 2. We refer to adultery, behaviour etc. as "grounds" for the sake of convenience. Strictly, the irretrievable breakdown of the marriage is the only ground for divorce. 3. Sources: Civil Judicial Statistics, and, for 1986 and 1987, Annual Report of the Registrar General for Scotland 1987, Table R 1.2.2. We have omitted divorces on "other" grounds which apparently include divorces on a combination of grounds. This means that the annual totals are very slightly understated, but never by more than 15 in any year. 4. See Davis and Murch, Grounds for Divorce (1988) pp 81-84. Some of our consultees also made the point that in many cases the choice of grounds for divorce depends more on what is available to the parties than on what constituted the real cause of the breakdown of the marriage. 5. Pp 2-3. See also Davis and Murch, Grounds for Divorce (1988) pp 87-99. true, the position is worse. The defender may resent the allegations made against him or her but may well be advised that there is no point in defending. To a feeling of bitterness may be added a feeling of injustice. Of course, if the defender decides to defend or to raise a cross action for divorce on the basis of the pursuer's behaviour (which nowadays is unusual) the scene is set for an unsavoury, destructive and costly process of mutual recrimination." We were careful to point out that this criticism was likely to apply in only some cases and that, quite apart from cases where the atrocious behaviour of the defender was the real cause of breakdown and bitterness, there were likely to be cases where the defender was unconcerned about allegations made against him or her (even if incidents were exaggerated or taken out of context) being content to regard them as part of the paperwork necessary for a quick divorce. Nonetheless we thought that some defenders were likely to feel understandable resentment at the allegations made against them,' and that, quite apart from the defender's attitude, it was not very constructive or civilised for the pursuer in a divorce case to be asked by his or her solicitor to recount the worst thinethe other spouse had done in the marriage to see if a behaviour case existed. We suggested that a good divorce law would try to minimise aggression in the interests of the parties and, very importantly, their children. Later in the paper, we referred to the increased awareness, since 1976, of the benefits of conciliation in divorce2a nd quoted the view of a leading exponent of conciliation that: "A legal process which facilitates agreement can help couples to re-organise their lives and relationships in a humane and civilised way, whereas a process which concentrates on establishing which spouse is the guilty party increases antagonism and discourages constructive solution^."^ 2.4 The length of the separation periods required by the present law means not only that there is unnecessary use of the behaviour ground but also that there may be a considerable delay in regulating the property consequences of a marriage breakdown. This is particularly obvious if there is substantial property involved, if the defender refuses consent to a divorce, and if intolerable behaviour or adultery cannot be proved. One woman who wrote to us said that she had been ill-treated by her husband for years but could not use his behaviour as a ground for divorce because she had no witne~sesH.~e owned substantial property (all in his name) to which she had contributed by hard unpaid work. "He won't consent after two years so that means 5 more years to wait. How long then before a settlement? I left home as I stood with no money.. . . I've been in Women's Aid Refuges, etc. . . . Push with all your might to change the Divorce laws. I'm an honest to goodness woman and its shocking being treated so unfairly. I'll be fifty in six years' time. Will I get a mortgage then I wonder!" 2.5 The purpose of the separation periods in the present law is to provide a reason- ably reliable indication that the marriage has in fact irretrievably broken down. It seems to us that the present periods of two or five years are much longer than is necessary for that purpose. 2.6 It appears from our consultation and public opinion survey that shorter separ- ation periods would now be generally acceptable. Many consultees favoured much more radical reform such as divorce on the sole ground of a short period of separation or notice. Many consultees (including most legal consultees) even when opposed to more radical reform favoured a shortening of the separation periods. The respondents in the public opinion survey were not asked what would be appropriate separation periods if adultery and behaviour were to be retained as grounds for divorce but they 1. This was confirmed by comments received on consultation. See also Davis and Murch, Grounds for Divorce pp 87-99. 2. P 17. 3. Parkinson, Conciliation in Separation and Divorce (1986) 11. 4. In ordertopreserve anonymity the name of thiscommentator has been omitted from the list in Appendix C. The Civil Evidence (Scotland) Act 1988 removes the need for corroboration in civil cases. However, in an action for divorce for behaviour the evidence of someone other than the pursuer is still required. were asked what would be an appropriate period if a period of separation were to be the sole ground for divorce. The options presented were 3 months, 6 months, 9 months, 1 year, 2 years, more than 2 years and "Don't know". Respondents had already been shown a card which pointed out that an argument for a long period of separation was that it would not make divorce seem too quick and easy and that arguments against a long period of separation (as the sole ground for divorce) were that it could force people to raise extra legal proceedings to make temporary arrange- ments about custody or finance during the period of separation, could delay the final settlement of finance and property and might be difficult for people who wanted tp remarry. The breakdown of responses was as follows' 3 months 7% 1 year 27 % 6 months 14% 2 years 19% 9 months 3% More than 2 years 14% Don't know 16% 2.7 We accept, of course, that the arguments for a very short period are much stronger if there are no fault grounds to provide an immediate remedy. Neverthelesg we think that these figures suggest that there would be public support for a shortening of the present separation periods. There is, to put it at its lowest, no overwhelming objection to the idea that someone might be divorced, or might obtain a divorce, after, say, a period of separation of one or two years. 2.8 The answer to the question "Why reform?" is, in short, that the separation periods in the present law are too long. Their length encourages an over-use of the behaviour ground, which is undesirable for the reasons given above, and may cause hardship in some cases by delaying the regulation of the economic aspects of the marriage breakdown. The periods are longer than is necessary to establish irretriev- able breakdown. Our consultation and research suggest that a shortening of the periods would be widely supported. Why reform now? 2.9 In our discussion paper we set out not only criticisms of the present law but also arguments for retaining it. We pointed out that the present law was considered satisfactory by Parliament in 1976 and that, arguably, not much had changed. We noted that in recent years there had been a number of important changes in relationl to divorce procedure and the financial consequences of divorce and that the courts, officials and the legal profession were still in the process of adapting to these changes. We asked whether it was sensible to change divorce law again so soon. This question was asked in all seriousness. We thought that a general view might be that, while the present law on the ground for divorce could be criticised, there was no need for, reform at the present time. The first question in the discussion paper was therefore: "Is it worth proceeding further with consideration of possible reform of the ground for divorce at this time?" The responses to this question indicate that there is strong support for proceeding further with consideration of reform at the present time. We were particularly inter- ested to note the support for early reform from the Law Society of Scotland and other ~ # legal bodies and groups,' from the judges who commented, from the Convention of Scottish Local Authorities (commenting from a social work point of view), from the l Scottish Marriage Guidance Council and from the Director of the Scottish Association, of Family Conciliation Services. Most of these comments were from people with direct personal experience of dealing with divorce and its effects. We were also particularly interested to note the support for reform expressed by a number of 1. These figures are taken from the tables annexed to System Three Scotland's Report of a Survey on Proposed Changes to the Divorce Lnw (1988). The report (without tables) is reproduced in Appendix n U. 2. The Society oiSolicitors in the Supreme Courts; the Scottish Law Agents' Society; the Scottish Legal Action Group; Aberdeen University Law Faculty's Working Party. organisations representing women's interests,' and by organisations with a special interest in the problems of divorced pe~pleT.~he responses from those churches which commented were more varied. All were opposed to the more radical options for reform mentioned in the discussion paper but not all excluded the possibility of minor modifications to the present ground^.^ Two were strongly opposed to any liberalisation of the grounds for divorce and believed the present grounds were too wide.4T he responses from individual commentators were also varied. Some favoured early reform of a radical nature. Others favoured more limited reform. Others opposed any liberalisation of the present law. A petition signed by 76 signatories disapproved of the more radical options mentioned in the discussion paper.5 2.10 The results of the public opinion survey were interesting. Respondents were presented with a brief written statement of the present law and of some criticisms of it.6 They were then asked "In your opinion, should there be any change in the law on the ground for divorce?" At this stage they had not been given any options for reform. 40% thought there should be no change. 39% thought there should be and the rest were undecided. Among those with personal experience of divorce 56% favoured a change in the law.7 Later in the interview, after respondents had been asked for their views on two options for reform (divorce on the sole ground of a period of separation: divorce on the sole ground of a period of notice) they were asked a "summing up" question as to their preference between various options. 34% favoured a period of separation, 14% favoured a period of notice, 15% favoured either of these but had no preference for one or the other, 5% supported some other reform, 21% thought there should be no change in the present law, and 11% were unde~idedO.~f those with personal experience of divorce only 11% thought there should be no change in the law.' We were anxious to give respondents the type of information they would have received on reading our discussion paper, so that we could compare the results of the survey of a representative sample of the adult population with the responses from the self- selected respondents to the discussion paper. This is why respondents were given the information set out in the report of the survey."' The fact that this information was given must, of course, be taken fully into account in assessing the results but we nonetheless think it is significant that, after being presented with certain criticisms of the present law and certain options for reform, 68% of the respondents favoured a change.ll Of those with personal experience of divorce 81% favoured a change.12 2.11 To sum up, we thought at the time of our discussion paper that there might well be a general view that the present law on the ground for divorce was open to criticism but that the time was not yet ripe for reform. There turned out to be much more support for early reform than we had anticipated. In the light of the responses received on consultation and the results of the public opinion survey we conclude that there is substantial support for early reform of the ground for divorce, particularly from those who have personal or professional experience of the working of the present law. 1. Including the Women's National Commission; the Mother's Union (Diocese of Glasgow and Galloway; Edinburgh Diocese; Young Family Representative); the Scottish Convention of Women; Scottish Women's Aid; and the British Federation of University Women (Dundee and St Andrews Association; Edinburgh Association; Inverclyde Association). 2. Campaign for Justice in Divorce Scotland: Gingerbread Scotland. 3. This was the view of the Presbytery of Edinburgh (Church of Scotland) and of the United Free Church of Scotland. Although the Church of Scotland's Board of Social Responsibility answered question 1 in the discussion paper in the negative we do not read their detailed comments and arguments as expressing or implying opposition to all reform at the present time. 4. This was the view of the Religion and Morals Committee of the Free Presbyterian Church of Scotland and of Cupar Baptist Church. 5. The wording of the petition is set out in Appendix C, part (4). 6. See Appendix D. Card F3. 7. See Appendix D, para B2. 8. Appendix D, para B5. 9. Appendix D, para B5. 10. Appendix D, Cards F3, F4 and F5. 11. See Appendix D, para B5. 12. See Appendix D, para B5. Why the particular reform recommended? I 2.12 A reduction of the periods of separation to one year (with the defender's consent to divorce) or two years (even without such consent) would meet the criticis9 that the periods of separation required by the present law are too long but would not alter the fundamental nature and structure of the present divorce law, would nojtl make things more difficult for the victims of serious matrimonial offences, and would not, we believe, go beyond what is acceptable to a broad spectrum of responsiblk opinion. It should channel many actions from the behaviour ground to the les/ recriminatory separation grounds. I 2.13 The periods chosen are, of course, arbitrary within a certain range. Various suggestions were made to us. The Law Society of Scotland suggested 6 months with consent and 2 years without consent. The Scottish Law Agents' Society suggested 1 year with consent and 3 years without consent. The Society of Solicitors in the Supreme Courts of Scotland suggested 1 year with consent and 2 years withou! consent. Some members of the Council of the Society of Writers to Her Majesty's Signet favoured 6 months with consent and 2 years without consent: others favoured 1y ear with consent and 2 years without consent. Various other consultees suggesteq either 6 months with consent and 2 years without consent, or 1 year with consent and 2 years without consent. The public opinion survey showed that, in relation td separation as the sole ground for divorce, 51% of respondents favoured 1 year oq l less and 70% favoured 2 years or less. Some consultees expressed the view that a period of about a year was necessary for separated spouses to adjust to the new1 situation. The advantage of a period of 6 months, in cases where the defender1 consents, is that this would enable more cases to proceed on the separation ground^ rather than on the behaviour ground. If the parties have been separated for 6 months1 and if they are agreed that there should be a divorce then it seems reasonably safe see^ to assume that the marriage has irretrievably broken down. We can, therefore, considerable attractions in the Law Society's proposal. Nonetheless, in the light of( the comments received by us, we believe that a period of 1 year with consent wouldl be likely to command wider public support and approval at the present time. There1 is clearly a fairly widespread concern that to allow divorce after a period of separationl of less than a year would alter the public perception of marriage as a serious long-~ term commitment. This concern may or may not be justified but it undoubtedly exists and has to be taken into account. 2.14 A few consultees suggested that the period of separation required should be the same (say, 1y ear) whether or not the defender consented to divorce.] The Royal Commission on Legal Services in Scotland suggested in 1980 that the two separation 1~ grounds should be replaced by one, so as to eliminate "the opportunity for what amounts to 'blackmail' in the present arrangements7'.*W e ourselves referred in the I ~ discussion paper to the distortion of bargaining power caused by the requirement of 1 consent for the use of the shorter separation period. We thought this might be a possible criticism of the present law.' Few consultees, however, seemed to regard I 1 this as a serious criticism. One view expressed was that it was perfectly legitimate for a spouse who had not contributed to the marriage breakdown in any significant 1~ 1 way and who did not wish a divorce to be able to negotiate his or her consent in exchange for some financial advantage. The bargaining power of the spouse who is asked to consent would, in any event, be reduced considerably if he or she could delay a divorce for only one year. It is, of course, arguable that if a couple have been ~ separatedfor a year then it is reasonable to conclude that the marriage has irretrievably ~ broken down, whether or not the other party consents. We can see force in that argument. There is also, however, some force in the argument that if separation for ~ 1 2 years is required before it can safely be assumed that a marriage has irretrievably broken down where one party refuses to consent to divorce, then a shorter period ( may suffice where both parties agree to a divorce. This is the justification for the short 1 1. This is the solution adopted in Canada where the Divorce Act 1985 makes the grounds for divorce ) adultery, cruelty or separation for 1 year. I 2. Report (Cmnd 7846) (1980) pp 156-157. 3. Discussion Paper No. 76, p 5. l