A Scottish Government Consultation on Family Law - draft Impact Assessments

Potential extension of the simplified procedure for divorce and dissolution - draft Child Rights and Wellbeing Impact Assessment

Introduction

Brief Summary

Type of proposal

This draft CRWIA relates to a decision of a strategic nature relating to the rights and wellbeing of children.

Name the proposal, and describe its overall aims and intended purpose.

The Scottish Government is consulting on whether to make secondary legislation to allow for an extension of the simplified procedure for obtaining a divorce or dissolution to cases where there are children under 16 but no dispute about their upbringing. Secondary legislation lets the Scottish Government (or in some cases the Lord President of the Court of Session, who is the most senior judge in Scotland) make changes to laws.

This is about the procedures for obtaining a divorce and dissolution. We are not proposing any change to the grounds of divorce and dissolution.

This draft CRWIA is intended to support the consultation. We would publish a finalised CRWIA and a Statement of Compatibility if legislation is introduced.

Simplified divorce and dissolution (sometimes known as “do-it-yourself divorce and dissolution”) is a straightforward way of ending a marriage or civil partnership.

Someone who is married or in a civil partnership but wants to divorce or dissolve that relationship, can currently use the simplified procedure where all of the following apply:

• the basis of the divorce or dissolution is one-year separation with consent, or two years’ separation, or because of the issue of an interim Gender Recognition Certificate^[6]
• 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 that either party is unable to manage their affairs as a result 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

We are considering whether the second requirement, that there are no children of the marriage or civil partnership under the age of 16, should be removed.

If the process applies to you, you make the application using a form. There is no need to use a solicitor when completing this form although applicants may choose to do so. In cases where the basis of the divorce or dissolution is one year’s separation, the other spouse or civil partner has to sign the form to show they are consenting and return it to the applicant. This reflects that both parties need to consent to the divorce or dissolution where the basis is one year’s separation.

The person who makes the application has to swear or affirm that the contents of the form are true. You can swear or affirm before a notary public (most solicitors in Scotland are notaries public) or a Justice of the Peace or Commissioner for Oaths. You then send the form to the court along with your marriage or civil partnership certificate and the appropriate court fee, unless you are exempt from paying the fee.

Court staff send a copy of your application to your spouse/civil partner so that they are aware of the application and have the opportunity to object. If you have completed the form correctly, and no objections to the application are raised by your spouse or civil partner, it is considered by a sheriff or judge who decides whether to make an order for divorce or dissolution.

The alternative to the simplified procedure is called the “ordinary procedure”. To start a court action under the ordinary procedure, you have to give the court a legal document called an “initial writ”. The Scottish Government would generally recommend asking a solicitor for advice when using the ordinary procedure and preparing an initial writ.

In order to extend simplified divorce and dissolution procedures, three pieces of secondary legislation would be required:

• An Act of Sederunt which is made by the Court of Session to amend the rules of court and court forms.
• Regulations made by the Scottish Ministers to make legal aid available when the court orders a hearing to decide whether or not an application for divorce and dissolution where there are children under 16 can continue to be dealt with under the simplified procedures.
• An Order made by the Scottish Ministers removing the need for third party evidence (evidence from someone other than the spouses or civil partners) in divorce and dissolution cases where there are children under 16 and there is no dispute about their upbringing

Couples would need to have agreed about the arrangements for the upbringing of children under 16 and give the court detailed information about what those arrangements are.

The Scottish Civil Justice Council’s consultation sets out the potential changes to court forms, including the information that would be sought from the applicant as agreed between the couple. The proposed form would seek information on all of the following aspects of the arrangements for a child:

• information about the house(s) where the child lives and if they will not stay in that house after the divorce or dissolution, equivalent information about the house(s) where they will live
• the full names and ages of everyone who lives with the child and their relationship to the child or who will live with the child if the arrangements are expected to change after the divorce or dissolution
• if the child will not stay in the same house after the divorce or dissolution, information about the house where they will live
• whether any of the people with whom the child is living or will live has been convicted of a violent offence, a sexual offence or been placed on the Sex Offenders Register
• whether the child has been referred to a Children’s Hearing
• the arrangements for the child to have contact with the parent or parents with whom the child is not living
• the arrangements for the child to have contact with other members of their family such as brothers and sisters not living in the same house
• educational arrangements
• childcare arrangements including before and after nursery or school
• information about the child’s interests and any health and developmental issues
• information about the views of the child on the arrangements for them after the divorce or dissolution, if sought. If they have not been sought, the form would seek an explanation for that decision

The form would require to be completed for each child of the family under 16 and signed by the spouse or civil partner who is not the applicant for divorce or dissolution. The court would have to be happy with the proposed arrangements for the children set out in the application.

Start date of proposal’s development: 7 December 2023

Start date of CRWIA process: 1 February 2024

With reference given to the requirements of the UNCRC (Incorporation) (Scotland) Act 2024, which aspects of the proposal are relevant to children’s rights?

There may be a direct impact for children if we implemented the proposed extension of the simplified procedure, given that people aged 16 and over can marry or register a civil partnership in Scotland. This means that they can, in principle, marry or enter a civil partnership and later apply for a divorce or dissolution before they are 18. However, very few marriages and civil partnerships involve a 16 or 17 year old. In 2023 around 0.07% of marriages (21 out of 26,753) involved a party or parties under 18. In practice, very few people under 20 get a divorce (see the evidence in section 3).

We have also published a draft Business and Regulatory Impact Assessment about the potential extension of the simplified procedure which identifies that there could be monetary benefits for people from using the simplified procedure in terms of either avoiding legal fees or accessing reduced legal fees.

It is not clear that there would be any indirect impact for children under 16 of a couple who are divorcing or dissolving their civil partnership and who chose to use the simplified procedure. In an undefended action of divorce or dissolution under the ordinary procedure, written affidavit evidence (sworn or affirmed to be true) from a third party or parties is used both to evidence that the ground of divorce or dissolution is met, which is a legal requirement, and to set out information about the arrangements in place for any children of the family.

We will consider the outcomes of the consultation before we decide on next steps, and we would publish an updated full CRWIA and a Statement of Compatibility with any legislation taken forward by the Scottish Ministers.

However, based on the available evidence and subject to the consultation outcomes, we think that the following articles of the UNCRC are relevant to the consideration of the proposal:

Article 3 (Best interests of the child): Section 12 of the Children (Scotland) Act 1995 requires a court dealing with a divorce or dissolution where there are children of the family under 16 to consider whether to make an order, for example, about parental responsibilities and rights under section 11 of that Act. Under the option to extend the simplified procedure being considered, the court must continue to have access to the necessary information to allow them to meet this requirement. We think that the use of a court form to gather the information about the arrangements for a child under 16 should result in greater consistency in the range of information about the arrangements for children affected by a divorce which is available to courts across Scotland. This should help ensure courts could continue to reach a view on whether a particular case can continue under the simplified procedure or whether the case should proceed under the ordinary procedure for further investigation into the arrangements for the children. The proposed arrangements include an additional court hearing if the information provided in the form is not sufficient. Section 3 of this draft CRWIA notes that there were mixed views from the three solicitors we interviewed for our partial Business and Regulatory Impact Assessment as to whether the proposed arrangements would be an adequate replacement for affidavit evidence. There could be benefits for children if parents or stepparents who are agreed on all matters are able to resolve their relationship more quickly and easily.

Article 9 (Separation from parents): Article 9 refers to the need on some occasions for a determination to be made as to the child’s place of residence where parents are living separately. The potential extension of the simplified procedure does not affect the requirement on the court dealing with a divorce or dissolution to consider the arrangements proposed for any child or children under 16 under section 12 of the 1995 Act.

Article 12 (Respect for the views of the child): Section 6 of the 1995 Act requires that when a major decision about a child under 16 is being made, that their parents or others must have regard to child’s views taking account of their age and maturity. The option to extend the simplified procedure being considered does not affect these arrangements. The proposed new court forms should help advance respect for a child’s views in relation to the proposed arrangements for them after divorce or dissolution, This is because we intend that the new forms will request information about what the child’s views on the proposed arrangements for them are, and if it is necessary, the reason(s) why their views have not been sought. There is no equivalent requirement under the current arrangements for an undefended action of divorce or dissolution under the ordinary procedure where no request for an order regarding a child or children has been made.

Article 18 (Parental responsibilities and state assistance):Under this article States Parties are to use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Section 12 of the 1995 Act requires a court dealing with a divorce or dissolution where there are children of the family under 16 to consider whether to make an order, for example, about parental responsibilities and rights under section 11 of that Act. Under the existing arrangements for undefended actions of divorce or dissolution under the ordinary procedure, an affidavit from a person other than the applicant or the other spouse or civil partner is used to evidence the proposed arrangements for the child or children of the family. Under the proposed extension of the simplified procedure, the spouse or civil partner who is not applying for divorce or dissolution will need to confirm their agreement to the proposed arrangements. Section 3 of this draft CRWIA notes that a solicitor interviewed for our partial Business and Regulatory Impact Assessment wondered whether this confirmation was always valuable, given that the non-applicant spouse may have limited or no involvement in the child’s life in practice.

Article 19 (Protection from violence, abuse and neglect): under this article States Parties shall take all appropriate measures to protect the child, such as from violence, or neglect. The potential extension of the simplified procedure being considered does not affect the requirements on a court dealing with a divorce or dissolution to consider whether to make an order in relation to a child, for example, under section 11 of the 1995 Act on parental responsibilities and rights. Under the potential extension of the simplified procedure, if needed, the court can fix a hearing to hear the applicant and the other party to decide whether the case can continue under the simplified procedure or if it should only proceed under the ordinary procedure so that the court can gather more evidence and consider the need for such an order.

Please provide a summary of the evidence gathered which will be used to inform your decision-making and the content of the proposal.

This section and the other parts of this CRWIA will be updated once we have analysed the responses to the consultation, considered any further evidence identified, and the Scottish Ministers have decided on next steps.

We will publish an updated and completed CRWIA and a Statement of Compatibility with any legislation introduced to the Parliament by the Scottish Ministers.

Meantime we have summarised below the available data and evidence in advance of the consultation. This is intended to help those taking part in the consultation with understanding what the current evidence suggests and why this proposal is being explored

Existing research/reports/policy expertise

There is published data about actions of divorce and dissolution: Civil Justice statistics - gov.scot (www.gov.scot).

In 2022-23, there was a total of 8,562 divorce and dissolution cases initiated in the Scottish Courts (both Court of Session and sheriff courts): see Civil Justice Statistics in Scotland 2022-23, Main Tables at Table 5. In 2022-23, 59% of the divorces and dissolutions initiated in the sheriff courts were raised using the simplified procedure: see Civil Justice Statistics in Scotland 2022-23, Main Tables at Table 7

The published data indicates that few divorce and dissolution actions have a subsidiary crave (request) for an order relating either to the residence of a child or to parental responsibilities and rights.

The majority of actions seeking divorce and dissolution in a sheriff court, involve only a single 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). In the sheriff courts in 2022-23, there were 58 requests in a divorce or dissolution action for a subsidiary order relating to the residence of a child and 4 requests requesting an order relating to parental responsibilities and rights: Civil Justice Statistics in Scotland 2022-23, Main Tables at Table A4. This indicates that typically, spouses or civil partners have been able either to reach agreement on the arrangements for the children by the time of a divorce or dissolution or any dispute has been resolved through the courts in a separate action.

In 2022-23. only 3 individuals granted a divorce were under the age of 20: Civil Justice Statistics in Scotland 2022-23, Divorces and dissolutions supplementary tables, Table 6. We do not know if any were under 18. This reflects that fewer people are marrying when they are 16 or 17, and the number of marriages has been decreasing over time. National Records of Scotland has advised us that there were 21 marriages in 2023 involving a 16 or 17 year old party.

We do not have reliable data in the Civil Justice Statistics in Scotland about how many children and young people in Scotland are affected by the divorce or dissolution of their parents or stepparents. Our partial Business and Regulatory Impact Assessment (BRIA) estimates that around 70% of the current undefended actions for divorce and dissolution without subsidiary requests, such as for financial provision, involve children under 16.

Consultation/feedback from stakeholders

We interviewed solicitors from three different Scottish legal firms for the purposes of the partial Business and Regulatory Impact Assessment in early 2023. In addition to discussing the potential business and competition impacts of extending the simplified procedure to cases where there are children under 16, the solicitors gave us their views of the implications of this change more generally. Their views about the implications of change for children were mixed.

One solicitor felt that the practice of courts to require evidence in an undefended ordinary action of divorce from a third party in an affidavit acted as a safeguard.

Another did not feel that the existing arrangements would better protect children in a better situation than would be the case under the proposed extended simplified procedure. They noted that courts did not, in their experience, question the adequacy of affidavit evidence submitted under the ordinary procedure about the arrangements for children.

The third solicitor felt that the non-applicant spouse or civil partner’s consent to the arrangements for the children under the proposed extended simplified procedure might not be enough to protect children, as that party may no longer be involved with the children’s lives.

One of the solicitors interviewed suggested that the potential extension of the simplified procedure could further reduce hostility between the couples who are divorcing or dissolving their civil partnership, given the legal language used in the documentation submitted under the ordinary procedure. This might suggest an indirect benefit for children of the family.

We will gather further evidence and views from the consultation.

Further to the evidence described at ‘3’ have you identified any 'gaps' in evidence which may prevent determination of impact? If yes, please provide an explanation of how they will be addressed

Not applicable at this stage.

Analysis of Evidence

Not applicable at this stage.

What changes (if any) have been made to the proposal as a result of this assessment?

Not applicable at this stage.

Conclusion

As a result of the evidence gathered and analysed against all UNCRC requirements, what is the potential overall impact of this proposal on children’s rights?

Not applicable at this stage. The Scottish Government will reach a view on the likely overall impact of this proposal when we reach decisions on our next steps after the consultation responses have been analysed and considered.

If you have identified a positive impact on children’s rights, please describe below how the proposal will protect, respect, and fulfil children’s rights in Scotland.

Not applicable at this stage.

If a negative impact has been identified, please describe it below. Is there a risk this could potentially amount to an incompatibility?

Not applicable at this stage.

Mitigation Record

What options have been considered to modify the proposal in order to mitigate a negative impact or potential incompatibility?

Not applicable at this stage.

Issue or risk identified and relevant UNCRC requirement

Not applicable at this stage.

Action Taken/ To Be Taken

Not applicable at this stage.

Date for action to be taken or which was taken

Not applicable at this stage

As a result of the evidence gathered and analysed against all wellbeing indicators, will the proposal contribute to the wellbeing of children and young people in Scotland?

Not applicable at this stage

Safe

Yes

No

Not Applicable

Healthy

Yes

No

Not Applicable

Achieving

Yes

No

Not Applicable

Nurtured

Yes

No

Not Applicable

Active

Yes

No

Not Applicable

Respected

Yes

No

Not Applicable

Responsible

Yes

No

Not Applicable

Included

Yes

No

Not Applicable

If yes, please provide an explanation below:

How will you communicate to children and young people the impact that the proposal will have on their rights?

Not applicable at this stage.

Post Assessment Review and sign-off

Planning for the review of impact on children’s rights and wellbeing

Not applicable at this stage.

Sign off

Not applicable at this stage. This will be completed after this consultation and views have been obtained from consultees

Policy Lead Signature & Date of Sign Off:

Deputy Director Signature & Date of Sign Off:

Date CRWIA team first contacted: 28 January 2025