Adult Relations: Ending Marriage (& Civil Partnership) (Scotland)

Ending Marriage
1. Divorce = end of marriage
2. Dissolution = end of civil partnership
3. Divorce (Scotland) Act 1976
4. Policy - reconciliation if possible, allow exit if irretrievable breakdown, secure beset interests of any child
Grounds
1. s.1 Divorce (Scotland) Act 1976
  1. (1) Court may grant decree of divorce if, but only if, it is established that
    1. (a) marriage has broken down irretrievably
    2. (b) an interim gender recognition certificate has ... been issued to either party to marriage
  2. (2) the irretrievable breakdown of a marriage shall, subject to the following provisions of this Act, be taken to be established in an action for divorce if
    1. (a) adultery
    2. (b) "intolerable behaviour"
    3. (c) one year non-cohabitation with agreement
    4. (d) two years' non-cohabitation
Irretrievable Breakdown
1. Adultery (s.1(2)(a) 1976 Act)
  1. since the date of the marriage the defender has committed adultery
    1. MacLennan v MacLennan 1958 SC 105
      1. Adultery is not a ground obtainable for a decree of divorce but may be used as evidence to prove that the marriage has broken down irretrievably
    2. s.1(3A) For the avoidance of doubt, in relation to marriage between persons of the same sex, adultery has the same meaning as it has in relation to marriage between persons of different sexes
2. Personal Bar (s.1(3) 1976 Act) - the irretrievable breakdown of a marriage shall not be established by reason of ss.(2)(a) if the adultery has been connived at in such a way as to raise the defence of lenocinium
  1. lenocinium being the connivance or encouragement by one party to a marriage of the adultery of the other, implying collusion and thus acting as a bar for divorce
    1. Gallacher v Gallacher 1928
      1. Husband's letter to estranged wife telling her to give him grounds to divorce her. Her adultery was held to be a response to that letter so defence of lenocinium succeeded
    2. Gallacher v Gallacher 1934
      1. Continued adultery so defence of lenocinium failed. No longer a response to the letter but acting on her own desires.
3. Condonation (s.1(3) 1976 Act)
  1. finding out about a partners adultery but continuing to live together as husband and wife, hence losing the opportunity to divorce on grounds of adultery
    1. (more important historically when it mattered financially and socially who was at fault for divorce)
4. Intolerable Behaviour (s.1(2)(b) 1976 Act)
  1. from the date of the marriage the defender has at any time behaved in such a way that the pursuer cannot reasonably be expected to cohabit with the defender
    1. (+ causation)
    2. (whether or not as a result of mental abnormality and whether the behaviour has been active or passive)
5. Non-Cohabitation (s.1(2)(d) 1976 Act)
  1. there has been no cohabitation between parties at any time during a continuous period of one year after the date of the marriage and immediately preceding the bringing of the action and the defender consents to the granting of a decree of divorce
  2. s.1(2)(e) 1976 Act - 2 years without consent
6. Cohabiting (s.13(2) 1976 Act)
  1. for the purposes of this Act, the parties to a marriage shall be held to cohabit with one another only when they are in fact living together as man and wife (s.4 Civil Partnership Act 2014 for interpretation involving same-sex couples
Reconcilliation
1. Despite moves to make divorce easier or more available the state continues to be pro-marriage and reconciliation is facilitated
2. If you cohabit as husband and wife with your spouse after you discover they have been having an affair you are personally barred from seeking a divorce on the ground of adultery as you have "condoned" the adultery
  1. BUT s.2(4) 1976 Act states that you will not be personally barred if you "try again" for up to 3 months. Similarly, s.2(4) says the non-cohabitation period of 12 or 24 months does not get wiped out if you reconcile for up to six months
Religious Impediment
1. s.3A 1976 Act
2. notwithstanding irretrievable breakdown has been established the court may
  1. (a) on the application of a party AND
  2. (b) If satisfied (i) that ss.(2) applies and (ii) that it is just and reasonable to do so, postpone grant of decree until satisfied that other party has [acted in relation to s.3A(2)(b)]
  3. (2) this subsection applies where
    1. (a) applicant is prevented from entering a religious marriage by virtue of a requirement that religion of that marriage
    2. (b) other party can act so as to remove ... impediment which prevents that marriage

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Adult Relations: Ending Marriage (& Civil Partnership) (Scotland)

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	Created by Ruaraidh Simpson over 7 years ago