Scottish Churches Parliamentary Office, Edinburgh - Briefing Document Three

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Parliamentary Officer:Rev Graham Blount
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Briefing Document No 3 - Page 2 of 5

Improving Scottish Family Law - Continued.

Divorce Law Reform

(A) Proposals
"The aim of any reform of divorce law must surely be to enable couples whose marriages cannot be saved to part on fair terms with the least possible acrimony. The law must not in any way encourage break up or divorce" (2.4.2).

The Divorce (Scotland) Act 1976 began the trend away from fault as the basis of divorce by making "irretrievable breakdown of marriage" the sole ground. However, this can only be established by proof of adultery, desertion, unreasonable behaviour, 2 years separation (with consent) or 5 years separation (without consent) - which are often seen as the grounds for divorce. English and Welsh law has now moved further from such grounds, with a period of notice as the sole ground for divorce. The issue is whether Scots law should follow in a similar direction, away from notions of fault or past history to a procedure which promotes information, mediation, time for reflection, and the welfare of children involved.

The document wants to recognise and encourage a "trend away from acrimony and towards mutual agreement" (2.1.6); it is concerned that "the use of the behaviour ground increases the likelihood of acrimony (and) may interfere with continued parenting after divorce" (2.4.4), particularly since it was, in 1997, the "ground" for 57% of divorces involving children. It is suggested that reducing the period of separation required for divorce might provide a more attractive alternative for those who might otherwise use the behaviour ground as a "quicker" option. However, even a briefer period of notice of one year might seem too long in the face of seriously intolerable behaviour (2.2.1).

There is also discussion of a very specific proposal designed to protect Jewish wives who wish their marriages dissolved according to Jewish usages as well as civil procedures (2.5.1)

(B) Some Questions for the Churches
Churches have in the past felt a tension, in measures which seem to make divorce "easier", between a desire to reduce the pain of broken relationships and a concern that the ease of divorce could undermine support for marriage. One crucial question, therefore, is what prospect for reconciliation there is when a couple come to start proceedings towards divorce, and how that could be maximised.

Theologically, we may want to ask whether departing completely from notions of fault or responsibility is always the way to reconciliation or even to a post-divorce non-acrimonious relationship for the sake of the children; this is particularly relevant when the "unreasonable behaviour" ground represents physical abuse. The document itself recognises elsewhere that there are difficulties in making the assumption that non-acrimonious contact with both parents after divorce is best for the child where there has been domestic violence (s7).

All will agree with the stress on the welfare of children, but some may wish to question the assumption that a smooth passage towards divorce represents the best option for that. Recognising the imbalance of power in many relationships, would a move towards "less painful" divorce allow greater exploitation of women, or offer them more hope of a new beginning?

Churches may also want to use this consultation as an opportunity to raise other issues, about why so many marriages break down. The pain or acrimony in divorce is not solely a matter of legal procedures (though they can certainly add to the pain); pain comes from the broken relationships. Legislation cannot and should not keep people in unhappy relationships against their will, but there may be ways in which the law and government policy can help or hinder people build stronger relationships.