Family law consultation: draft impact assessments

Potential extension of the simplified divorce and dissolution procedures- partial Business and Regulatory Impact Assessment

Introduction

The Scottish Government is consulting on extending the existing forms-based simplified divorce and dissolution procedures (the “simplified procedure”) to cases where there are children of the marriage or civil partnership under 16 and there is no dispute between the parties about their welfare.

This work is not about the grounds of divorce or dissolution.

This draft BRIA will be updated and finalised, including to reflect the outcomes of the consultation, if the Scottish Ministers decide to make an Order under section 8(4) of the Civil Evidence (Scotland) Act 1988 (“the 1988 Act”) disapplying the need for third party evidence in these divorce and dissolution cases. Changes to court rules would also be needed. Court rules are a matter for the Court of Session. The Scottish Civil Justice Council (“the SCJC”) which advises the Lord President of the Court of Session on the development of the civil justice system, is consulting separately on the necessary changes to court rules and forms.

Executive summary

This partial BRIA considers the potential costs and benefits of two Options:

• (Option 1) to extend the simplified procedure to cases where there are children of the marriage or civil partnership under 16 and there is no dispute between the parties about their welfare
• (Option 2) to do nothing

Under Option 1, eligible people seeking a divorce could benefit from reduced legal fees charged by legal firms for a divorce or dissolution under the simplified procedure, over legal fees charged for undefended cases under the ordinary procedure. They could choose to deal with their own divorce or dissolution and only pay any fee charged by a notary public for the affidavit in the application form and the reduced court fee for the simplified procedure. People may find the simplified procedure easier to navigate and quicker than the ordinary procedure. Couples will still need to consider their options, the division of matrimonial and partnership property and to reach agreement on the arrangements for any children under 16 and they may incur legal fees in that connection.

Under Option 1, solicitors would need to familiarise themselves with the change, possibly through “business-as-usual” continuing professional development. They may need to update public-facing information. We expect legal firms to review any fixed fee arrangements and raise their fixed fees for at least newly eligible cases. Points made by solicitors in interviews about the potential impacts of Option 1 are set out at paragraph 77 onwards.

There could be some savings for the Scottish Legal Aid Board (the SLAB) under Option 1. There would also be some one-off IT costs for SLAB. There would be a reduction in court fee income for the Scottish Courts and Tribunals Service (the SCTS), some increased costs in dealing with simplified procedure applications and one-off costs for SCTS as a result of IT changes needed to support implementation.

Stage 1: Background, aims and options

Background to policy issue

The simplified procedure is a straightforward way of obtaining a decree of divorce or dissolution to end a marriage or civil partnership. The simplified procedure involves the completion of an application form, including an affidavit, which is submitted to either a sheriff court or the Court of Session. An affidavit is a written statement which the person swears or affirms to be true.

Under section 1 of the Divorce (Scotland) Act 1976 (the “1976 Act”), there are two grounds for divorce in Scotland:

• the irretrievable breakdown of the marriage
• the issue of an interim gender recognition certificate (an “interim GRC”) to either party to the marriage

There are four ways through which the irretrievable breakdown of the marriage can be established:

• adultery
• unreasonable behaviour
• the parties have not lived together for one year and both parties’ consent to the divorce
• the parties have not lived together for two years

Under section 117 of the Civil Partnership Act 2004 (the “2004 Act”), the same grounds of dissolution apply. Irretrievable breakdown of a civil partnership can be demonstrated in the same ways as irretrievable breakdown of marriage, but not on the basis of adultery.

A divorce or dissolution under the simplified procedure is currently only available when all of the following apply:

• the basis is one year separation with consent or two years separation without consent, or because of the issue of an interim Gender Recognition Certificate
• there are no children of the marriage or civil partnership under the age of 16
• there are no financial matters to sort out
• there is no evidence of either party being unable to manage their affairs because of mental illness, personality disorder or learning disability
• there are no other court proceedings under way which might result in the end of the marriage or civil partnership

The SCJC considers that simplified divorce and dissolution should no longer continue to be provided for under the court rules where the ground of divorce or dissolution is the issuing of an interim GRC. This is explained in their consultation. This change could impact for some parties who want to divorce or dissolve their civil partnership who would no longer be in a position to use the simplified procedure.

There are no statistics available on the number of individuals living in Scotland who apply to the Gender Recognition Panel under the Gender Recognition Act 2004. Tribunal statistics, including applications dealt with by the Gender Recognition Panel are published quarterly by the UK Government Ministry of Justice: Tribunals statistics - GOV.UK (www.gov.uk).

The Scottish Government publishes Civil Justice statistics in Scotland annually. A low number of divorces and dissolutions are granted on this ground. Between 2013-2014 and 2022-2023 there were 5 divorces and 1 dissolution on this ground. In the same period there were over 79,000 divorces and 650 dissolutions granted.

There would be negligible impact from the SCJC’s proposed change for business, SLAB or the SCTS. Consequently, this BRIA focuses on considering only the impacts of extending the simplified procedure to include cases where there are children of the marriage or civil partnership under 16 and there is no dispute about their welfare.

Purpose/ aim of action and desired effect

The Scottish Government has not yet decided whether to legislate. The consultation will gather further views and evidence to help inform the Scottish Ministers’ decision on next steps.

The key objectives of any change would be two-fold:

• To extend the simplified procedure to divorces or dissolutions where there are children under 16 and the parties are not in dispute about their welfare, without the need for either party involved to employ a solicitor to complete the process on their behalf, unless they wish to do so. People will still consider seeking legal advice on their rights and options, for example, in the division of matrimonial or partnership property.
• To ensure a court dealing with an application where there were children of the family under 16, can continue to meet the requirements of section 12 of the Children (Scotland) Act 1995 (the “1995 Act”)

Under section 12 of the 1995 Act, the court dealing with specified types of court action, including an action of divorce or dissolution, must consider whether, in light of the proposed arrangements for the upbringing of any child of the family under 16, to make an order under section 11 of the 1995 Act, such as in relation to parental responsibilities or rights, or whether there might be a ground on which to make a reference to the Principal Reporter under section 62 of the Children’s Hearings (Scotland) Act 2011. (The Principal Reporter is responsible for arranging all Children’s Hearings.)

We think that extending the simplified procedure could potentially contribute to the National Performance Framework’s Purpose, and the following outcomes of, that Framework:

• Children and young people: we grow up safe, loved and respected so that we realise our full potential
• Communities: we live in communities that are inclusive, empowered, resilient and safe
• Human Rights: we respect, protect and fulfil human rights and live free from discrimination

Options (considered so far/ still open)

The options being considered are:

• Option 1 (extend the simplified procedure) The Scottish Ministers would make an order under section 8 of the 1988 Act enabling the Court of Session to amend the court rules accordingly, and a necessary supporting order to extend legal aid, to permit the extension of the simplified procedure to cases where there are children of the family under 16 but no dispute about their welfare. The Court of Session could then amend the supporting court rules and forms. We would need to make an order on extending legal aid to eligible parties if any hearing is fixed by the court to consider the available evidence about the arrangements for children under 16 and decide if the case can continue under the simplified procedure.
• Option 2 (do nothing) The Scottish Ministers would not make any of the orders. The Court of Session could not then make supporting changes to court rules, as the need for third party evidence in these cases would continue. would be to do nothing.

Option 1 cannot be achieved otherwise than by way of regulation. Consequently, we have not considered a non-regulatory option for change.

The majority of divorces and dissolutions are dealt with under the simplified procedure. The published civil justice statistics indicate that of the 7,744 divorces granted in 2022-2023, nearly 60% (4,464) were dealt with under the simplified procedure: see Civil Justice Statistics in Scotland 2022-2023, Table 9 of Main Tables.

Of 49 dissolutions granted in the same year, nearly 90% (34) were dealt with under the simplified procedure: see Civil Justice Statistics in Scotland 2022-2023, Table 10 of Main Tables.

The majority of actions seeking divorce and dissolution in a sheriff court, involve only a single crave (request for an order) for divorce or dissolution: in 2022-23 of the 8,482 divorce actions initiated in the sheriff court, 7,947 (94%) had only one crave (see Table A1, Main Tables). Many of these (4,982) were cases submitted under the simplified procedure. In 2022-23 very few divorces were on the basis that irretrievable breakdown was evidenced by either adultery or unreasonable behaviour: in 2022-23, 323 divorces (4%) were granted otherwise than on the basis of non-cohabitation (see Table 2, Divorces and dissolutions supplementary tables).

Most divorce actions under the ordinary procedure are undefended: in 2022-23, 2,832 (90%) sheriff court ordinary procedure divorce cases were undefended, at least by the time the court disposed of the case (see Table 7, Main Tables).

The available Scottish Government statistics derived from SCTS data do not allow us to identify the number of ordinary procedure actions of divorce or dissolution which were undefended at the outset with only one crave where there were children of the family under 16.

Information has been provided to us by the SLAB about the proportion of ordinary actions for divorce on the basis of non-cohabitation where there was only a single crave for divorce and the parties had children under 16 which benefited from civil legal aid. In 2022-23, an average of 78% of such actions would have been newly eligible if Option 1 was implemented and in 2023-24, the average was 75%.

Eligibility to use the simplified procedure will always depend on the facts and circumstances of a case. Numbers of eligible cases would naturally fluctuate. In addition, cases for which an application for civil legal aid is granted may more often involve children under 16 than is the case for other ordinary actions of divorce or dissolution. Further, a person may decide not to use the simplified procedure to raise an action of divorce or dissolution.

If we assume that:

• 90% of the ordinary undefended procedure actions disposed of by the sheriff court in 2022-23 had a single crave and
• 70% involved children under 16 and were based on non-cohabitation,

then this suggests that around 1,800 cases in that year might have been eligible under Option 1.

It is likely that the number of additional actions made eligible if Option 1 was taken will reduce steadily in the future. This is because the number of divorces has been slowly decreasing: see Civil justice statistics in Scotland 2022-23 (www.gov.scot), Figure 10, page 21. This decrease may be linked to the general downward trend in the number of marriages. It is also possible that if Option 1 was taken there might be a higher initial increase in the numbers of cases submitted using the simplified procedure. The anecdotal evidence we have suggests couples who are agreed on all aspects of their divorce or dissolution often delay seeking to finalise the legal end of their relationship until all their children are 16 or over.

Sectors/ Groups affected

We think that the following sectors/groups would be affected by the potential extension of the simplified procedure:

• Couples with children under 16 who are agreed on all matters relating to their divorce or dissolution, who would be able to use the simplified procedure to divorce or dissolve their civil partnership
• The SLAB
• The SCTS
• The judiciary handling divorces and dissolutions
• The legal services sector
• Third sector advice organisations

Stage 2: Engagement and information gathering

Engagement approach

Before the Scottish Government decided to issue the public consultation, officials met informally with three solicitors from different legal firms to gather views and evidence.

Internal SG engagement and wider government

The Family Law Policy Unit at the Scottish Government has worked with other Scottish Government officials including the Justice Analysis Unit, the SLAB, the SCTS, and members of the Family Law Committee at the SCJC.

UK/ Devolved Administrations

Divorce and dissolution, as part of civil justice is devolved to the Scottish Parliament and Scottish Government. We have not engaged with UK Government officials in the Ministry of Justice or officials in the Department for Finance in the Northern Ireland Executive about this work.

Wider Public Sector

Paragraph 34 notes our work with the SLAB, the SCTS and others. Option 1 (extend the simplified procedure) has no impacts for the wider public sector.

International

We have not engaged with officials overseas, although we note that some solicitors based outwith Scotland are qualified to provide legal services in Scotland.

Business / Third Sector engagement

We have discussed the potential impacts of change with three family law solicitors from different legal firms offering services in connection with divorce and dissolution.

Public consultation

This draft BRIA has been prepared and published to support a public consultation which seeks views and evidence on the possible extension of the simplified procedure.

Stage 3: Costs, impacts and benefits

Quantified costs to businesses

There may be costs to solicitors arising from Option 1 (extend the simplified procedure) in familiarising themselves with a change in the eligibility arrangements for the simplified procedure. These costs could potentially be absorbed as part of the requirement for solicitors to undertake continuing professional development.

Under Option 1 (extend the simplified procedure) fee income for solicitors offering legal services in connection with obtaining a divorce or dissolution may reduce. This is because couples newly eligible to use the extended simplified procedure may choose not to seek legal services in that regard. Those seeking a divorce or dissolution under the ordinary procedure are typically represented by a solicitor, including in undefended cases: see for example the advice on the SCTS website at Guide to divorce and dissolution of civil partnership | Scottish Courts (scotcourts.gov.uk).

A couple may still require separate legal services to understand their rights and options, to reach agreement on the division of matrimonial and partnership property and any arrangements for their children under 16, and to ensure that an agreement on financial provision is enforceable and implemented. That might mean ensuring that, for example, the transfer of the family home into one of their sole names effected or that a capital sum is paid.

Research online and our interviews with solicitors indicate that some legal firms do offer services in connection with obtaining a simplified divorce or dissolution, and this is often on a fixed fee basis.

To the extent that some legal firms’ resources would be freed up as couples choose to use the simplified procedure without seeking legal services to complete the process, this time could then be spent on other client business.

Firms offering services in connection with obtaining a simplified divorce or dissolution may need to update public-facing information relating to eligibility to use the simplified procedure.

Potential costs or impacts for others

Option 1 (extend the simplified procedure)- Costs

There would be minimal one-off costs to the Scottish Government for communications activity to raise awareness of any change in the law. This could be absorbed by existing Scottish Government resources and communications channels.

In 2024, the SLAB has advised that it currently estimates initial one-off costs for necessary IT changes if Option 1 proceeds of around £175,000.

In addition, under Option 1, there may be an additional hearing under section 12 of the 1995 Act in some instances in relation to the arrangements for any children under 16, so the court can be satisfied the application can continue under the simplified procedure. The SLAB has suggested an initial estimate of costs to the legal aid fund per hearing of around £165, inclusive of VAT.

In 2024, the SCTS estimated that there would be one-off IT costs of around £73,000 for implementing changes to their systems if the extension of the simplified procedure is implemented.

The SCTS provided a range of cost estimates set out in the table should Option 1 (extend the simplified procedure) be taken.

Range of estimated number of new applications under the simplified procedure	1,800	1,900	2,000
Potential reduction in fee income[3]	£205,200	£216,600	£228,000
Additional costs (staff/ judicial time/ postage costs etc.) under new proposals	£74,563	£78,705	£82,847
Additional costs involved in fixing and conducting a hearing under section 12 of the Children (Scotland) Act 1995 (assuming this is required in 10% of all cases)	£14,610	£15,421	£16,232

A person seeking a divorce or dissolution using the simplified procedure may have to pay for any legal services they obtain in that connection, unless they are eligible for legal aid advice and assistance to pay some or all of those costs.

Where an applicant is not using the services of a solicitor, they may need to pay a charge made by a notary public or other authorised person before whom the affidavit on the simplified application form is sworn. The fee charged will vary but may perhaps be between £50 and £100. This service is free if the affidavit is sworn before a Justice of the Peace.

The applicant will also usually need to pay to pay the cost of the court fee, unless an exemption applies such as where they are in receipt of legal aid advice and assistance or for certain social security benefits. The exemptions from court fees in the sheriff courts are set out in articles 8 and 9 of The Sheriff Court Fees Order 2024 and articles 4 and 5 of The Court of Session etc. Fees Order 2024.

A third sector advice agency offering information about the simplified procedure is likely to need to update this information.

Option 2 (do nothing)- Costs

Option 2 has no associated monetary costs. The potential benefits of Option 1 to couples set out below would not be realised and there would be no potential benefit for the SLAB in reducing the numbers of civil legal aid grants.

Potential benefits

Option 1 (extend the simplified procedure)- benefits

Potential benefits for those seeking a divorce or dissolution

Under Option 1, potential benefits may arise for those able to apply for a divorce or dissolution under the extended simplified procedure when they would not previously have been eligible to do so from:

• reduced, or no, legal fees.
• slightly lower court fees for submitting their application under the simplified procedure when compared to current court fees applying under ordinary procedure.
• using a procedure which is easier to navigate than the ordinary procedure.
• using a quicker process for obtaining a divorce or dissolution than under the ordinary procedure

Those seeking a divorce or dissolution under the ordinary procedure are typically represented by a solicitor, including in undefended cases. If Option 1 is taken this could benefit newly eligible applicants because:

• they might complete and submit the application on their own behalf; or
• they would incur lower legal fees if they did employ a solicitor to prepare and submit the application on their behalf

In all cases under the simplified procedure there are court fees, unless an applicant benefits from an exemption, and there will be other outlays. There is further information on the court fees payable below.

An applicant who decides to use the simplified procedure may still be eligible for legal aid advice and assistance in respect of advice on their rights and options.

The scope of the services that a client considering divorce or dissolution will vary according to individual circumstances. In particular, a person might need legal advice not only on how to get a divorce or dissolution but on their rights to financial provision and help to negotiate and implement division of any matrimonial or partnership property. Legal fees that solicitors might charge for services provided in connection with obtaining a divorce or dissolution under either ordinary or simplified procedure will vary between different firms and depending on the scope of the services a particular client may need.

This means that it is difficult to estimate with any confidence the total potential cost savings to individuals of Option 1.

There is some published information available about fixed fee arrangements offered by some solicitors’ firms for obtaining a divorce or dissolution under both the simplified and ordinary procedure. This allows us to estimate the range of minimal potential benefits for those who are able to use the simplified procedure compared to the ordinary procedure whether or not they use a solicitor’s services.

Online research indicates that some legal firms advertise fixed fees for a simplified divorce or dissolution of up to £350.^[4] All three of the solicitor firms interviewed offered fixed fee arrangements for simplified divorce or dissolution, although one offered a fixed fee arrangement only to existing clients.

We can compare these costs to the fixed fee arrangements some legal firms offer for an undefended divorce or dissolution under the ordinary procedure. Our online research identified fixed legal fee arrangements for an undefended divorce under the ordinary procedure ranging from £299 to £1100.^[5] One of the firms we interviewed charged a fixed legal fee of £1500 for an undefended divorce under the ordinary procedure at the time of interview in January 2023.

We expect that under Option 1, legal firms offering fixed fee arrangements for simplified divorce and dissolution would review these arrangements. The solicitors we interviewed noted that, depending on the level of extra work involved in a newly eligible case under the simplified procedure, they might raise their fees for all simplified divorces or dissolutions or just raise fees for those where there were children under 16.

The available evidence suggests that there could be cost benefits for an individual who could make an application using the simplified procedure under Option 1, who chose not to employ a solicitor and who wouldn’t have been eligible for civil legal aid under the ordinary procedure, of between £350 and £1500. The applicant would still need to pay court fees unless eligible for an exemption, and for swearing or affirming the affidavit in the application before an authorised person.

Additionally, if a person chose to have a solicitor handle their divorce or dissolution in a case newly eligible for the simplified procedure, the available evidence indicates that there would be savings on the legal fees charged. The level of benefit will depend on the decisions of the solicitor firms offering simplified divorce and dissolution services, if the simplified procedure is extended under Option 1. This includes whether firms currently offering fixed fee arrangements decide to have a higher level of fixed fee for a simplified divorce or dissolution where there are children under 16 or to have a single higher fixed fee for all simplified divorces or dissolutions.

There would also be some limited savings on court and other associated fees for applicants under Option 1. The court fees payable under the simplified procedure are currently less than is the case for an undefended action raised under the ordinary procedure. The fees referred to below are payable from 1 November 2024 in accordance with either The Sheriff Court Fees Order 2024 or The Court of Session etc Fees Order 2024 depending on the court the action is raised in.

Fee for	Ordinary (Sheriff Court)	Simplified (Sheriff Court)	Ordinary (Court of Session)	Simplified (Court of Session)
Lodging initial writ or application, including the extract decree	£185 (an additional fee of £39 may apply in certain circumstances)	£151	£207	£157
Lodging affidavits	£80	N/A	£89	N/A

If the court requires it, there could also be a court fee of £14 plus the cost of intimation of the action by a sheriff officer or a court fee of £15 for service by a messenger-at-arms in relation to an application raised in the Court of Session.

The fees for service by sheriff officer or messenger-at-arms are currently £123.10 for personal service or £34.99 for postal service: see the Tables in Schedules 1 and 2 of the Act of Sederunt (Fees of Messengers-at-Arms) (No. 2) 2002 (SSI 2002/566) as inserted by the Act of Sederunt (Fees of Messengers-at-Arms and Sheriff Officers) (Amendment) 2024 (SSI 2024/41)

Regular reviews of the court fees are undertaken by the Scottish Government.

The applicant may also need to pay a charge made by a notary public or the authorised person before whom the affidavit on the application form is sworn. The fee charged will vary but may perhaps be between £50 and £100. This service is free if the affidavit is sworn before a Justice of the Peace.

Potential benefits for the Scottish Legal Aid Board

The SLAB estimate that taking Option 1 could result in savings to the legal aid budget of up to £500,000 annually. Around 90% of the savings would be in civil legal aid grants and the remainder would be savings relating to advice and assistance payments.

As noted earlier, the number of divorces has been reducing steadily for some time and this trend may mean fewer applications for civil legal aid more generally.

Option 2 (do nothing)- benefits

Under Option 2 neither the SCTS nor the SLAB would have the IT costs associated with extending the simplified procedure under Option 1. The SCTS would not lose potential fee income arising from the difference between the fees for simplified procedure and those for an ordinary procedure divorce or dissolution.

Scottish firms’ international competitiveness

We do not consider either Option 1 or 2 would affect Scottish businesses ability to compete internationally or impact on capital investment in Scotland.

Small business impacts

We interviewed three solicitors representing three Scottish legal firms with varying partner numbers and with offices in both city and town locations in January and February 2023. We sought their views about Option 1, including the impacts for the legal profession and on competition.

Interview with Firm A

Firm A did not undertake legally aided actions of divorce and probably undertook more undefended ordinary actions of divorce than simplified divorces. This work usually follows on from the firm being instructed in connection with agreeing financial provision and the arrangements for any children.

The solicitor had concerns about whether there was adequate justification for taking Option 1 (extending the simplified procedure) to include cases where there were children under 16. Under the ordinary procedure in undefended cases, evidence is submitted using affidavits, and where the welfare of a child is concerned at least one affidavit should be provided by a person other than a parent or a party to the action. In their view, this operates as a safeguarding measure. They had concerns about removing a very long-standing measure to safeguard children.

They had concerns that there might be an expectation that solicitors who assisted a client in completing the simplified divorce or dissolution in the court forms were verifying the information provided regarding the arrangements for any children, which would not be the case.

They noted that civil legal aid is not available for simplified divorces and that the available funding under legal aid advice and assistance is generally modest. Cases involving children under the simplified procedure would inevitably be more complex, and more people will require legal assistance as a result, but the solicitor felt that even if legal aid were to be extended to cover the new simplified procedure, very few firms would choose to offer a service in this area.

They advised that many solicitors’ firms currently offer fixed fee arrangements for divorces sought through the simplified procedure and undefended divorces under the ordinary procedure. At the time of interview (January 2023), Firm A was charging £250 (excluding VAT and court fees) for a simplified divorce based on 2 years non-cohabitation and a fixed fee of £300 (excluding VAT and court fees) where the basis is 1-year non-cohabitation with consent. In an undefended ordinary action, they were charging a fixed fee of £800 for their services (excluding VAT, court fees and any other outlays).

Their view was that, under Option 1 (extend the simplified procedure), the fees charged by solicitors for handling a simplified divorce involving children would increase. This is because there would be increased time involved in preparing the forms involved. Final decisions cannot be made by solicitors until the new forms are in place, but they might consider raising their fixed fee to somewhere between £300 and £800 for simplified divorces involving children under 16. They would also consider their fees for simplified procedure divorces not involving children under 16. In some cases there may be duplication of work and costs where a simplified procedure application needs to be converted to an ordinary action after the court has intimated the action to the other party. This would be more likely where a simplified divorce involves children.

The solicitor later confirmed that as of March 2025 their fixed fees (including VAT and court dues) were:

• £558.99 for a simplified divorce based on 1 year separation with consent
• £498.99 for a simplified divorce based on 2 years separation
• £1,451.80 for an uncontested divorce where there were children under 16 under the ordinary procedure

Interview with Firm B solicitor

Firm B did not undertake legally aided divorce actions. They did undertake a lot of divorce work, but this often focused on more complex cases associated with financial provision and the arrangements for children. The solicitor felt that the firm may not be carrying out work which might in future fall under extended simplified procedure.

They did not consider there was a public policy reason that the court should need third-party evidence in an undefended divorce or dissolution action under the ordinary procedure concerning the upbringing of children under 16.

In their experience, it was rare for a question to arise regarding the adequacy of affidavit evidence about the arrangements for children and they did not feel that children would be in a better situation under the existing arrangements than under an extended simplified procedure.

In their view, the impact of Option 1 would vary between firms. More local High Street firms could be more affected by Option 1.

Firm B did not advertise that it undertook simplified divorce work. They would usually only undertake this work for an established client and would, in the first instance, encourage the client to use the process for themselves wherever possible. At the time of the interview (January 2023) they would do so for a fixed fee of £350, excluding VAT and outlays. This would typically not reflect the actual costs under their standard hourly charge out rates. At the time of the interview, an undefended action of divorce would cost £1500 including VAT and outlays with a discount for established clients.

Given the increase in costs for simplified divorces where there were children under 16, Firm B would expect to increase their fixed fee for these cases accordingly, perhaps to something in the order of £500 to £600.

The solicitor noted that the ordinary procedure seems overly adversarial where the action is undefended. Extending the simplified procedure to more cases might improve this situation given that the use of language in the legal process can, in their view, have an impact for the parties’ co-parenting relationship and in turn, the children involved.

The solicitor considered that the costs of employing a lawyer, and the other outlays involved can be a barrier to divorce. Couples may be long separated but decide to postpone divorcing because of the costs until they are eligible to use the simplified procedure once their children have all reached 16. Accordingly, this could mean that if Option 1 is taken there could be a disproportionate rise in the number of cases raised under the simplified procedure in the initial period after implementation.

Interview with Firm C solicitor

Firm C handled a significant number of divorces each year which consist of a mixture of simplified and ordinary procedure cases. Firm C did undertake legally aided cases. In their experience, the simplified procedure is more straightforward and takes less time than an action under the ordinary procedure.

In their experience people often wait until after their children have reached 16 before raising an action of divorce so that they can divorce using the simplified procedure. If they do not, this can be because there is a sensitivity involved, such as a history of domestic abuse.

They wondered whether a third-party supporting welfare affidavit should continue to be necessary, given that one of the parties may no longer be involved with the children. The non-applicant parent’s consent to the arrangements as set out in the application may not be enough.

They wondered whether, under Option 1 (extend the simplified procedure), the extra work involved in addressing the arrangements for the children might mean it is no longer cost effective to offer a service in relation to simplified divorce in the future. Helping clients eligible for legal aid advice and assistance prepare an application under the simplified procedure might take two or three meetings. A firm might be unable to offer this level of service under the extended simplified procedure.

At the time of the interview (February 2023), Firm C offered to undertake a simplified divorce for a fixed fee of £200-£250 excluding VAT and outlays. This allowed them to compete with other firms in the area and retain their existing client base.

Their view was that Scottish Government should consider a reasonable civil legal aid block fee for solicitors advising in simplified cases which would be newly eligible under an extended simplified procedure, so that they were reasonably remunerated for their work in this area. Increasingly, colleagues in other firms are not undertaking divorces or dissolutions under the ordinary procedure on legal aid.

Investment

Neither option would make Scotland a more, or less, attractive place for global investment.

Workforce and Fair Work

We do not consider either option would affect the workforce or the ability of businesses to meet Fair Work First principles.

Climate change/ Circular Economy

We do not consider either option would affect climate change or the circular economy.

Competition Assessment

We do not consider that either option would distort or otherwise affect competition.

Consumer Duty

If Option 1 (extend the simplified procedure) is taken, this could benefit couples with children who are agreed on all aspects of their divorce or dissolution and have resolved the division of matrimonial or partnership property, as well as the arrangements for their children under 16.

Option 1 may also have non-monetary benefits for people in terms of avoiding the need to use the ordinary procedure which is primarily designed for cases where there is a dispute between parties. A divorce or dissolution under the simplified procedure also typically takes less time than an undefended divorce or dissolution under the ordinary procedure.

Stage 4: Additional implementation considerations

Ensuring compliance

There is no legal requirement to use the simplified procedure where an individual is eligible. Option 1 would not change this.

The operation of the simplified procedure in practice is for the SCTS and the judiciary. Option 1 would not change this.

UK, EU and International Regulatory Alignment and Obligations

Internal Market/ Intra-UK Trade

Some solicitors based in another jurisdiction may also be qualified to offer legal services in connection with Scots law. We do not consider that Option 1 would have an impact on intra UK trade/the Internal Market, as it does not affect the current arrangements allowing for qualification to practice in Scots law and provide legal services in Scotland.

International Trade Implications

We do not consider that Option 1 would have any impact on international trade.

EU Alignment consideration

Countries in the EU do not have a consistent approach to the process for obtaining a divorce.

Legal Aid

Option 1 would not in itself give rise to increased numbers of divorces or dissolutions. Option 1 may reduce the number of civil legal aid grants because civil legal aid is not available in connection with the simplified procedure. This draft BRIA sets out the potential benefits and costs to the SLAB of Option 1.

Digital impact

Option 1 has no adverse impact on increased provision of digital court services.

Business forms

There would be no new business forms under Option 1.

Stage 5: Next steps and implementation

Recommendations/ preferred options

We have not recommended a preferred option in advance of considering the views and evidence gathered from responses to the public consultation.

Implementation considerations/ plan

No decisions have been made on whether legislative change will be progressed.

Post implementation review

If Option 1 is taken forward, we will consider our approach to post-implementation review before we bring forward the necessary secondary legislation.

Declaration

[This will be completed after this consultation and views have been obtained from consultees]

I have read the partial Business and Regulatory Impact Assessment, and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact has been assessed with the support of businesses in Scotland.

I am also satisfied that officials have considered the impact on consumers as required by the Consumer Scotland Act 2020 in completion of the Consumer Duty section of this BRIA.

Signed:

Date:

Minister's name:

Minister's title:

Scottish Government Contact point: familylawconsultation@gov.scot