Family law consultation: draft impact assessments

Proposed extension of simplified divorce and dissolution procedure- draft Fairer Scotland Duty Assessment

Title of policy/practice/ strategy/legislation etc.

Proposed extension of simplified divorce and dissolution procedure

Lead Minister

Minister for Victims and Community Safety

Directorate Division team

Directorate for Justice, Civil Law and Legal System Division, Family Law Policy Unit

Stage 1: Planning

What is the aim of your policy/strategy/plan?

In Scotland, a divorce or dissolution of a civil partnership can only be obtained through a court. There is a simplified procedure for doing so where certain conditions are met. 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 FSDA is intended to support the consultation. We would update the FSDA using further information and evidence obtained through the consultation if we proceed with legislation.

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 their civil partnership, 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^[8]
• 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.

You make the application using a form for a divorce or dissolution under the simplified procedure 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.

Legal aid is help with paying legal costs you cannot otherwise afford. Legal aid ‘advice and assistance’ can help with the costs of oral or written advice from a solicitor in connection with a matter of Scots law. Advice and assistance is available in connection with simplified divorce and dissolution. Civil legal aid is help with the costs of initiating and conducting a civil court action. Civil legal aid is not available in connection with simplified divorce or dissolution.

In divorce or dissolution cases which would be newly eligible under the proposal to use the simplified procedure under the proposal (where there are children of the marriage or civil partnership under 16) the court will still be required to consider whether it needs to make an order in respect of for example parental responsibilities and rights.

If the court reaches the view that it does not have sufficient evidence in the application about the arrangements for the child or children, it may decide a hearing is needed to ascertain more information. If the proposal is taken forward, the Scottish Government would also take action so that legal aid would be available for the purpose of ensuring access to solicitor support and representation at such hearings.

The partial Business and Regulatory Impact Assessment sets out that the adoption of the proposal could mean savings for some people who would then be able to use the simplified procedure to obtain a divorce or dissolution where there are children of the marriage or civil partnership who are under 16.

The Scottish Civil Justice Council is consulting separately on changes to court rules and forms that would be needed if the proposal proceeds.

Who will it affect?

We consider that the proposal, if adopted, would affect:

• people who want to divorce or dissolve their civil partnership and are agreed on all matters with their spouse or civil partner, including the arrangements for children under 16
• the legal profession, including representative bodies such as the Law Society of Scotland and the Faculty of Advocates
• the Scottish Legal Aid Board (SLAB)
• the Scottish Courts and Tribunals Service (SCTS)
• members of the judiciary
• third sector advice organisations.

What is your timeframe for completing the Fairer Scotland Duty assessment (FSDA)?

This is a partial FSDA which will be published alongside the Scottish Government consultation on the proposal. We will finalise the FSDA once the consultation responses to both the Scottish Government and SCJC consultations are analysed, and final decisions made.

Who else will be involved in the assessment and what roles will they play?

This assessment will involve Scottish Government officials in the Family Law Policy Unit, the Access to Justice Unit, Justice Analytical Services Division and other Scottish Government officials.

We will also work closely with SLAB, SCTS and involve the Family Law Committee of the Scottish Civil Justice Council.

Stage 2: Evidence

What does the evidence suggest about existing inequalities of outcome, caused by socio-economic disadvantage, in this specific policy area?

The Scottish Government’s Poverty and Income Inequality in Scotland 2019-22 report indicates that:

• in 2019-22, the relative poverty rate after housing costs was highest for single adults (31%, 290,000 adults each year) and divorced (or separated) adults (31%, 110,000)
• Married adults were the least likely to be in poverty (14%, 290,000)

The Scottish Crime and Justice Survey 2021-22 estimates that 1% of adults had experienced an issue with divorce or dissolution in the last three years.

There is international research evidence which suggests that following divorce, women can experience disproportionate declines in their income and standard of living and are at increased risk of experiencing poverty. For an example, see the summary of previous international research in Leopold, T. Gender Differences in the Consequences of Divorce: A Study of Multiple Outcomes. Demography 55, 769–797 (2018).

The research available has suggested a number of risk factors may influence these negative experiences, including the impact on the future earning capacity of women of their typically being the resident parent for any children, that marriage typically allows women to participate in men’s market incomes which are higher than women’s average incomes, and that women may not in fact receive child maintenance payments from their former partner. See for example Bröckel, M. and Andreß, H.-J. 2015. The Economic Consequences of Divorce in Germany: What Has Changed since the Turn of the Millennium? Comparative Population Studies. 40, 3 (Oct. 2015).

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. In 2022-23, 1,396 civil legal aid grants were made in connection with divorce, dissolution or separation.

What does the evidence suggest about possible impacts of the policy/programme/decision, as planned, on those inequalities of outcome?

The proposal under consideration is of a limited nature. There may be savings for some because the costs of obtaining a divorce or dissolution under the simplified procedure will be lower than is the case under the ordinary procedure. As set out in our partial Business and Regulatory Impact Assessment, The available evidence suggests that there could be cost benefits for an individual who could use the simplified procedure were it extended to those with children under 16, who chose not to employ a solicitor and who wouldn’t have been eligible for civil legal aid under the ordinary procedure. These savings could be in the order of between £350 and £1500. An 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. However, there is no evidence that extending the divorce or dissolution actions which can be raised under the simplified procedure will impact on the longer-term socio-economic outcomes for the parties involved in a divorce or dissolution or their children.

Our intention is that legal aid would continue to be available to eligible individuals if the court fixes an initial hearing regarding the arrangements for the children, to decide whether the case requires to be considered under the ordinary procedure.

There are existing exemptions from court fees, including the fees relating to actions raised under the simplified procedure, which are available to those applicants who have received legal aid advice and assistance from a solicitor or who are in receipt of certain benefits or tax credits: Article 4(b) and Article 5 in The Court of Session etc. Fees Order 2024 and Articles 8 and 9 of The Sheriff Court Fees Order 2024.

Is there evidence that suggests alternative approaches to the policy/programme/decision? For example, evidence from the UK or international evidence?

Not applicable

What gaps are there in key evidence? Is it possible to collect new evidence quickly in other areas? For example, through consultation meetings, focus groups or surveys?

We do not consider that seeking further evidence will yield any benefits. We will seek the views of consultees on this draft FSDA and other pre-consultation impact assessments.

How could you involve communities of interest (including those with lived experience of poverty and disadvantage) in this process? The voices of people and communities are likely to be important for identifying potential improvements to the programme/policy/decision.

Not applicable.

Stage 3: Assessment and improvement

What options could strengthen this programme, policy or decision in its impact on inequalities of outcome?

Not applicable.

Our view is that, if adopted, the limited nature of the proposal is such that there will be no impact on the longer-term socio-economic outcomes of parties divorcing or dissolving their civil partnership. We have already reached the view that, if after consultation the proposal is adopted, we would also need to make provision by a Scottish Statutory Instrument for legal aid to be available in principle in respect of any required court hearings to consider the arrangements for any children under 16.

What are the pros and cons of these options?

Not applicable

How could the programme/policy/decision be adjusted to address inequalities associated with particular groups? Communities of interest or of place who are more at risk of inequalities of outcome.

Given the limited nature of the proposal, we do not consider there is an option for adjusting the proposal in a way which might address the potential longer-term outcomes for the parties.

In line with existing access to justice policies, we have already reached the view that, if after consultation the proposal is adopted, we would also need to make provision by a Scottish Statutory Instrument to ensure legal aid was available in principle in respect of required court hearings to consider the arrangements for children under 16.

Stage 4: Decision

What changes, if any, will be made to the proposal as a result of the assessment? Why are these changes being made and what are the expected outcomes?

No changes have been made to the proposal under consideration as a result of this assessment. This is a draft (or pre-consultation) assessment. Consultee responses will be used to inform the decision on whether to proceed and implement the proposal subject to any amendment.

If no changes are proposed, please explain why.

Subject to the outcomes of the consultation, our view is that the limited nature of the proposal under consideration means that it could have no impact for the longer-term socio-economic outcomes of the parties involved in divorces and dissolutions.

Sign off of the Fairer Scotland Assessment template

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

Stage 5: Publication

The final stage is the Fairer Scotland Duty summary for publication on the Scottish Government website.

Related publications

A Scottish Government Consultation on Family Law