The topic of divorce often carries a weight of negativity, but in today’s society, does separation always need to be somebody’s fault? Brodies LLP, one of Scotland’s leading law firms, addresses this question and explores the evolving landscape of family law.
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Understanding “no-fault” divorce
Since April 6 2022, it has been possible to obtain a “no-fault” divorce in England and Wales. This allows one or both parties to file for divorce without assigning blame, focusing instead on the fact that the marriage has broken down. The absence of fault can ease tensions, making an already challenging process less confrontational.
However, not all jurisdictions follow this approach. In some cases—particularly where couples have lived or worked in different countries—there may be an option to “forum shop” to find the most favourable country in which to divorce. For most couples, however, their home country’s laws will apply.
Divorce in Scotland: key differences
In Scotland, while the law does not yet support joint divorce applications, it is possible to divorce without blame under certain conditions. Scottish law requires that there be grounds of irretrievable breakdown of the marriage or the issuing of an interim gender recognition certificate.
“Irretrievable breakdown” can be demonstrated in one of the following ways:
- Adultery
- Unreasonable behaviour
- Separation for over one year (with mutual consent)
- Separation for over two years (without consent)
Although no-fault divorce as seen in England and Wales isn’t yet available in Scotland, the requirement to assign blame can still be avoided. However, it is possible to dispute the irretrievable breakdown of a marriage in Scotland, if there is sufficient evidence, which contrasts with the law in England and Wales, where this cannot be contested.
Changing the narrative around divorce
With the festive season approaching, many couples may be planning proposals, but also feeling uncertain about the future and the potential consequences of separation. Brodies LLP offers guidance to help clients navigate these concerns:
- Litigation isn’t always necessary: Most separations – whether they involve cohabitation, marriage, or civil partnerships – can be resolved without needing court intervention to determine financial arrangements.
- Pre-nuptial agreements offer protection: A well-drafted pre-nuptial or pre-cohabitation agreement can provide both parties with certainty, protect family wealth, and serve as a form of insurance for the future.
- Find the right path for you: While some issues do require a third party’s ruling, many disputes can be settled through mediation, collaborative practice, or joint meetings, helping avoid the need for court proceedings.
The notion of divorce as inherently negative is one that persists in the media, but Brodies LLP encourages clients to rethink this narrative. While some separations may be contentious, many can be resolved amicably and without blame.
Contact Brodies LLP today
Brodies LLP is committed to providing expert legal advice and support to those going through separation. For more information or to speak with one of its family law specialists, visit Brodies’ website or visit its Aberdeen office to learn how they can assist you through the process.
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