What is ‘No Fault’ Divorce Legislation?
No-fault divorce makes up the vast majority of divorces under Scottish Divorce law.
This requires irretrievable breakdown of marriage and separation of one or two years depending on whether the responding party consents to the divorce. Designating blame as to who caused the relationship breakdown is not required.
The Role of Fault
Different systems of law place varying emphasis on the role of fault in ending an adult relationship through divorce, differing even across the UK nations. Consent also plays a role, and not every legal system makes the process simple if one party refuses to agree to the divorce.
In Scotland, the sole ground for divorce is the “irretrievable breakdown of the marriage”. In Scotland, to qualify for a divorce, there has to have been a period of separation. This period is one year if both parties consent or two years if one party refuses.
The introduction of a ‘no-fault divorce’ has had a drastic effect in Scotland. In this system, over 90% of divorce cases are settled on a no-fault basis. This helps to ease the difficult divorce process, ensuring both parties can cooperate amicably rather than attempting to ‘beat’ the other in a court of law which is especially important when children are involved.
What are Grounds for a No-Fault Divorce?
The most common ground for a no-fault divorce is an irretrievable breakdown due to non-cohabitation. Attribution of blame is not required here, only that the married parties have not lived together for an extended period of time. As mentioned, this is a period of one year with consent or two years without.
Scots law accepts that this period of time may be interrupted by moments of reconciliation, and therefore the period of one or two years does not need to be continuous. However, the periods of re-cohabitation cannot amount to more than six months.
What Constitutes ‘Fault’?
In traditional marriage, there are two key fault-based reasons for divorce:
Adultery: This is an objective test; if one party has committed adultery, this qualifies as grounds for divorce. The circumstances surrounding the adultery, such as intention and other variables, are irrelevant.
It should be noted this only applies to marriage and cannot be used as legal grounds to end a civil partnership due to the relatively outdated but legally relevant definition of adultery which requires a heterosexual relationship.
Intolerable Conduct/Unreasonable Behaviour: This more general ground for divorce requires that one party in the marriage has acted so unreasonably that the other party can’t be expected to cohabit with them.
The relevant behaviour has to have taken place since the date of the marriage rather than being historic. However, the behaviour can be either active or passive (for example, being emotionally withdrawn is not active behaviour, but can qualify nonetheless).
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Are you looking for reliable legal assistance to ensure as smooth a divorce as possible? At Kee Solicitors, we can help you negotiate the emotionally and financially complicated process of ending adult relationships, ensuring you secure the best possible result for your specific situation.
