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Who is to Blame in Divorce?

Divorce is often portrayed as combative, aggressive and adversarial. Currently in England and Wales, divorcing couples need to prove the irretrievable breakdown of their marriage through adultery, unreasonable behaviour, desertion, two years separation with consent or five years separation without consent. Many people believe this system makes it difficult for separating couples to have a constructive and collaborative divorce. This is not the case in Scotland where it is easier to divorce in a way that does not require you to apportion blame on your former partner.

No Fault Divorce Bill

Richard Bacon, the Conservative MP for South Norfolk, has presented a No Fault Divorce Private Members Bill to the House of Commons. This Bill is due to receive a second reading on the 22nd of January. The Bill intends to introduce the possibility for a court to grant a divorce if they are satisfied that there has been ‘an individual statement from each party that the marriage has broken down irretrievably, signed freely and independently.’

Mr Bacon disagreed with criticism that this would make divorce easier. He argued that a no fault option would create a more constructive divorce process by removing the need to ‘throw mud at each other.’

No Fault Divorce Bill Reaction

Resolution, an organisation dedicated to the constructive and non-confrontational resolution of family law disputes, applauded the aims of this bill. As pointed out by the Chair of Resolution, Jo Edwards, ‘Removing the blame from divorce, as proposed in Richard Bacon's bill, would help couples who both wish to bring their relationship to a dignified conclusion and move on with their lives without the need for accusatory mud-slinging. This outdated system needs urgent revision – a civilised society deserves a civilised divorce process.’

Research was also commissioned into no fault divorce by leading London family law firm, Vardags. They found that 85% of people surveyed supported the idea of no fault divorce. Ayesha Vardag, the President of the firm, commented that, ‘forcing decent human beings through an expensive, destructive, utterly artificial exercise in mudslinging just to salve the consciences of the anti-divorce lobby is incredibly damaging, especially to the family, and sets the tone for battle not brokering.’

How Do You Divorce in Scotland?

The situation is arguably better in Scotland as the process helps to facilitate negotiation and collaboration.

When couples separate in Scotland they normally start with a Minute of Agreement, more commonly referred to as a Separation Agreement. Some couples come to an informal agreement between themselves and other couples will instruct a lawyer to draft a Separation Agreement. Separation Agreements will normally settle the everyday practicalities of separating from the person you having been living with such as the mortgage, debts and who will live in the family home. This agreement is arrived at through a process of discussion and negotiation between both parties to the marriage. Separation Agreements are likely to be held by the courts as legally binding documents so you may wish to consult with an experienced family lawyer before entering into one.

The most common ground for divorce in Scotland is irretrievable breakdown. This can be proved by living apart for one year if both parties agree to the divorce, living apart for two years if one party does not agree to the divorce, unreasonable behaviour or adultery.

If you both agree to the divorce and have no children under the age of 16 then you can follow the Simplified Procedure. This option is cheap, fast and only requires minimal input by lawyers.

This means that in Scotland, as long as both partners are able to agree about financial matters and agree to the divorce, it is possible to divorce in a constructive manner without attributing blame to the other party.

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