Family law: consultation

Part 4: Extending Simplified Divorce and Dissolution to cases where there are children under 16 and no dispute about their welfare

Summary of proposal

4.1 This chapter of the consultation paper is about potential changes to court procedures for divorce and dissolution of a civil partnership. It does not propose any changes to the grounds for divorce or dissolution.

4.2 The Scottish Government is considering whether to extend simplified court procedures for obtaining a divorce or dissolution to cases where:

• there are children of the family^[5] under 16, and
• the spouses or civil partners have agreed the arrangements for the upbringing of each child.

4.3 In order to extend the procedures in this way, the Scottish Ministers would need to change the law to remove the need for third party evidence in these cases. We are looking for views on a proposed Scottish Statutory Instrument which would do this.

4.4 The Scottish Civil Justice Council (“SCJC”) has consulted separately on proposed changes to court rules and forms. The proposed changes to the rules make provision so the court can obtain information about the children of the family.

Divorce and dissolution in Scotland

4.5 Under 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 to either party to the marriage. (This does not apply where the Gender Recognition Panel goes on to issue a full gender recognition certificate to the person to whom the interim gender recognition certificate was issued).

4.6 There are four ways through which the irretrievable breakdown of a marriage can be established. These are:

• the parties to the marriage have not lived together for one year, and both of them consent to the divorce;
• the parties to the marriage have not lived together for two years;
• a party to the marriage has at any time behaved in such a way that the other cannot reasonably be expected to cohabit with him or her;
• adultery. Adultery is sexual intercourse with someone of the other sex who is not your spouse.

4.7 Under the 2004 Act the grounds for dissolution of a civil partnership are the same as for divorce. The ways of establishing that a civil partnership has broken down irretrievably are the same as for divorce, except that adultery is not a way of establishing that a civil partnership has broken down irretrievably.

Simplified divorce and dissolution procedures

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

4.9 The person who makes the application has to swear or affirm in an affidavit that the contents of the form are true. You can swear or affirm before a notary public (most solicitors in Scotland are notaries public); 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 fee or exemption from fee as the case may be.

4.10 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.

4.11 Simplified divorce and dissolution procedures are currently only available where all of the following apply:

• When the basis is one year separation with consent, two years separation without consent, or because of the issue of an interim gender recognition certificate.
• There are no children of the family under the age of 16.
• The spouses or civil partners haven’t asked the court to make a decision about their finances
• There is no evidence of either spouse or civil partner 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.

4.12 There is guidance on the simplified divorce and dissolution procedures on the SCTS website.

4.13 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.

4.14 In 2022/23, there was a total of 8,562 divorce and dissolution cases initiated in the Scottish Courts. Of these, 80 were initiated in the Court of Session and 8,482 in the Sheriff Courts.

4.15 Simplified divorce and dissolution procedures are available in both the Court of Session and the Sheriff Courts. Over 50% of divorces and dissolutions are obtained through the simplified procedure: Civil justice statistics in Scotland 2022-23 - gov.scot, Tables 5,6 and 7 in Main Tables

Proposed change – policy

4.16 The Scottish Government is considering whether simplified divorce and dissolution should be available:

• where there are children of the family under 16 (one or more); and
• the spouses or civil partners have agreed about the children’s upbringing.

4.17 Extending simplified divorce and dissolution would mean that couples in this situation could apply to divorce or to dissolve their civil partnership using court forms. The current arrangements outlined above in paragraphs 9 and 10 would remain.

4.18 In addition, where there are children under 16, the applicant would need to complete a form for each child outlining the arrangements for bringing the child up. Each form outlining the arrangements for bringing the child up would need to be counter-signed by the other spouse or civil partner to show they are consenting.

4.19 There would be savings for couples seeking divorce or dissolution who have agreed all matters including the arrangements for the upbringing of their children and who do not qualify for legal aid, or who are eligible but would have to pay a contribution.

4.20 Any savings here will depend on the legal fees charged for a divorce or dissolution under the ordinary procedure. In addition, where a person seeking a divorce or dissolution under the simplified procedures chooses to use a solicitor to help them complete the court forms, the fees charged by solicitors may be higher when there are children under 16, as there will be more forms to complete.

4.21 There are court fees to be paid in relation to divorce and dissolution.^[6] These are lower when the divorce or dissolution is under the simplified procedure than when it is under the ordinary procedure.

4.22 There could also be savings to the public purse.

4.23 The Scottish Legal Aid Board estimates that extending the simplified procedure could produce legal aid savings for the Board of around £500,000 a year.

4.24 However, against this saving, the SCTS estimate that there will be costs to them, as follows:

• Reduced income from court fees, as the court fee for simplified divorce and dissolution is lower than for ordinary divorce and dissolution: around £200,000 a year.
• Additional costs in relation to staff time and postage: around £75,000 a year
• One-off cost of changing IT: around £150,000.

4.25 There is more information on costs and savings in the draft Business and Regulatory Impact Assessment (BRIA).

Proposed change – what would need to happen

Legislation

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

• An Act of Sederunt made by the courts amending 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 in divorce and dissolution cases where there are children under 16 and no dispute about their upbringing.

Rules of court

4.27 The Scottish Government does not make rules of court or court forms. These are made by the Court of Session in an Act of Sederunt (a form of secondary legislation), following advice from the SCJC.

4.28 The SCJC is consulting separately on potential changes to rules of court and court forms.

4.29 These proposed changes include that simplified court procedures for divorce and dissolution would no longer be available where the grounds of divorce or dissolution is the issue of an interim gender recognition certificate. The number of divorces and dissolutions granted on the grounds of the issue of an interim Gender Recognition Certificate is around 1 a year: Civil justice statistics in Scotland 2022-23 - gov.scot at Divorce and Dissolution Supplementary Tables 2022-23 (tables 2 and 3).

4.30 The proposed changes being consulted on by the SCJC also include forms on the arrangements for bringing the child up to be completed by the applicant and to be counter-signed by the other spouse or civil partner.

4.31 The aim here is to ensure that the rights of the child are protected. In addition, the proposed rules reflect the terms of section 12 of the Children (Scotland) Act 1995 (“the 1995 Act”).

4.32 Section 12 provides that when dealing with divorce and dissolution cases the court has to consider whether to make orders under section 11 of the 1995 Act or under section 62 of the Children’s Hearings (Scotland) Act 2011. A section 11 order could say things such as who a child should live with or spend time with (a residence or contact order). A section 62 order is a referral to the principal reporter.^[7]

4.33 Sheriffs Principal have issued Practice Notes outlining information which should be provided to the courts in divorce and dissolution cases when there are children under the age of 16, to enable the courts to decide whether to make an order under section 11 of the 1995 or section 62 of the 2011 Act.^[8]

Legal aid regulations

4.34 Civil legal aid (which can, for example, help with the costs of using a solicitor to prepare a case and represent you in court) is not currently available in relation to simplified divorce^[9]. This reflects that there are currently no court hearings in respect of simplified divorce applications. (Advice and assistance under the legal aid fund may be available. This can, for example, cover help with forms).

4.35 However, under the proposed court rules, where the court is considering for the purpose of section 12 of the 1995 Act whether to make a section 11 order in respect of the child, and the court is not satisfied that no such order should be made, the court has to hold a hearing. This hearing will determine whether the application for divorce or dissolution can continue under the simplified procedure or should be transferred to the ordinary procedure.

4.36 Parties attending this hearing may need to be represented and so legal aid should be available, subject to the usual tests, for these hearings. The Scottish Government considers, therefore, that if the proposed extension of simplified divorce and dissolution proceeds, the Scottish Government would need to make regulations under either section 9(1) or section 13(4) of the Legal Aid (Scotland) Act 1986 so that advice and assistance by way of representation or civil legal aid is available for these hearings. This change would only relate to these specific hearings: it would not make civil legal aid available for simplified divorce procedures generally. (Civil legal aid would potentially be available, subject to the usual tests, if the court should decide to remit the case to the ordinary procedure).

4.37 Under section 37(2) of the 1986 Act, any regulations made would be subject to the affirmative procedure in the Scottish Parliament.

Order to disapply the need for third party evidence

4.38 Under section 8 of the 1988 Act, a court cannot grant a divorce or dissolution until the grounds have been established by evidence. This evidence must include third party evidence: i.e. from someone who isn’t one of the spouses or civil partners.

4.39 Under section 8(4) of the 1988 Act, the Scottish Ministers can make an Order removing or changing the need for third party evidence^[10].

4.40 In 1989, an Order was made under section 8(4): The Evidence in Divorce Actions (Scotland) Order 1989. That Order removed the requirement for a sheriff or judge to see evidence from a third party before granting a divorce when certain conditions were satisfied.

4.41 In 2012, the Scottish Ministers made an Order which removed the requirement for a sheriff or judge to see third party evidence before granting a dissolution of a civil partnership when the same conditions were satisfied: The Evidence in Civil Partnership and Divorce Actions (Scotland) Order 2012. Section 27 of the Marriage and Civil Partnership (Scotland) Act 2014 made further provision.

4.42 In order to extend the availability of simplified divorce and dissolution, the Scottish Ministers would need to make a further Order under section 8 of the 1988 Act.

4.43 The Scottish Government’s current intention is that any such Order would remove article 2(1)(d) of the 1989 Order and article 2(2)(d) of the 2012 Order. These provisions have the effect of stopping simplified procedures for divorce and dissolution being established where there are children under 16.

4.44 The proposed Order would make provision instead so that simplified procedures could be established where neither of the spouses or civil partners applies for an order under section 11 of the 1995 Act in relation to a child of the family under the age of 16.

Other changes which would be required to extend simplified divorce and dissolution procedures

4.45 Some non-legislative changes would be required to extend the procedures. These areas include:

• Changes to IT operated by the SCTS.
• Changes to the public-facing guidance held on the SCTS website on the simplified divorce and dissolution procedures.
• Changed by SLAB to their systems and guidance.

Question 17:

The Scottish Government is considering making simplified divorce and dissolution procedures available in cases where:

• there are children (one or more) of the family under 16; and
• the spouses or civil partners have agreed about the upbringing of the children and so neither applies for an order under section 11 of the 1995 Act in relation to the children.

Do you agree or disagree with making the simplified procedures available in these cases?

Agree

Disagree

Don’t know

If you wish, you can give reasons for your answer:

Other matters relating to the simplified procedures

Mental disorder or incapacity

4.46 The Orders made by Ministers to help establish the simplified divorce and dissolution procedures are at The Evidence in Divorce Actions (Scotland) Order 1989 (legislation.gov.uk) and The Evidence in Civil Partnership and Divorce Actions (Scotland) Order 2012 (legislation.gov.uk).

4.47 The 2012 Order refers to section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (legislation.gov.uk) which defines “mental disorder” as any

“(a) mental illness;

(b) personality disorder; or

(c) learning disability

however caused or manifested;”

4.48 The original version of the 1989 Order referred to the Mental Health (Scotland) Act 1984. This has been updated by SSI 2005/445 - The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Subordinate Legislation) Order 2005 (paragraph 7 of the schedule) so that the reference to the 1984 Act has been replaced with the relevant references to the 2003 Act.

4.49 The effect is that if either party has a “mental disorder” as defined in the 2003 Act, they cannot use the simplified procedure to divorce or to dissolve their civil partnership.

4.50 There is an argument that using this definition of “mental disorder” in connection with the simplified procedures is no longer appropriate. There will be persons who fall within the 2003 Act definition but who are perfectly capable of deciding that they want to get a divorce or dissolve their civil partnership and wish to do so in the most straightforward and cost effective way possible.

4.51 We could amend the Orders so that the simplified procedures could not be used if either of the parties to a marriage or civil partnership is incapable of understanding or making decisions about divorce or dissolution, or of communicating such decisions. The terminology used could align with the approach to the meaning of incapacity in the Adults with Incapacity (Scotland) Act 2000.

Question 18: Should Ministers amend the Orders which helped establish the simplified divorce and dissolution procedures to remove the references to “mental disorder” and instead exclude only cases where one of the parties actually “lacks capacity”?

Yes [the Orders should be amended]

No

Don’t know

If you wish, you can give reasons for your answer:

Withholding a personal address

4.52 One matter raised with the Scottish Government concerns the operation of the simplified divorce and dissolution procedures in relation to a party who wishes to withhold their present residential address from others, such as their former partner.

4.53 We understand that the current position is that if a person wishes to withhold their address from other parties in a civil court action, then their reasons for doing so must be set out to the court in their initial legal documents such as pleadings. It is then for the court to determine whether or not the address should continue to be withheld.^[11]

4.54 The Scottish Government understands that these arrangements apply to actions proceeding under the simplified divorce and dissolution procedures. A party seeking to withhold their address requires to approach the court directly to seek permission.

4.55 In some instances, a person may not wish, or yet be able, to give a reason for withholding their address because, for example, they may be traumatised from having been subject to previous abuse or violence, and/or there may be an ongoing perceived or actual threat to their safety or welfare or to that of their children or dependents.

4.56 Additionally, it has been suggested to the Scottish Government that requiring a party to set out in detail the reasons why they wish to withhold their address has the potential to re-traumatise them or add to the trauma of individuals who have experienced domestic abuse or violence and that the arrangements associated with this process should therefore better reflect trauma-informed practice. There is further information on trauma-informed practice in the NHS Education for Scotland publication Trauma Informed Justice: A Knowledge and Skills Framework for Working with Victims and Witnesses. Although this publication primarily concerns the criminal justice system, it sets out key approaches of trauma-informed practice aimed at minimising re-traumatisation of victims. It also sets out some potential benefits, including aiding survivor recovery, and helping to facilitate effective survivor participation in the justice system.

4.57 If any changes should be made to make it easier for parties to withhold their address in simplified divorce and dissolution applications, there would be a need to consider if this gives rise to any practical implications. These could include how the court would be informed and whether there would be any impact on enforcing a decree of divorce or dissolution granted by the court following the application.

Question 19: Considering these points, do consultees think any changes are required to the procedures for withholding addresses in simplified divorce and dissolution cases?

Yes

No

Don’t know

If you wish, you can give reasons for your answer and set out any changes you think should be made: