By Denise Laverty, Family Lawyer, BTO solicitors

THREE months after unhappily-married Worcestershire woman Tini Owens lost her Supreme Court challenge, the UK Government launched an open consultation on Reforms of the Legal Requirement for divorce, to consider whether a “no-fault” divorce system should be introduced in England and Wales.

Many would argue that we already have a “no-fault”’ divorce system in Scotland. Since 2006 you have been able to apply for divorce in Scotland if your spouse consents and you have been separated for one year, or two years if they do not consent. No-one needs to apportion blame or cite the “unreasonable” behaviour of the other.

If this is accepted as a “no-fault” system, then England also already has a “no-fault divorce system”, only in England you have to be separated for two years if the other spouse consents to the divorce and five years where they do not. So why the need for any reform?

In England divorce can be granted even when there is no agreement or court order determining how matrimonial assets should be divided. These orders can be applied for after the divorce. In Scotland either a financial settlement is agreed and recorded in a Minute of Agreement before a divorce is applied for or, if an agreement is not reached then divorce together with financial orders can be applied for.

In Scotland, because financial settlement negotiations can take time, particularly when issues are complex, it is often the case that most couples are close to, or past the one-year period by the time a Minute of Agreement is signed and, in most cases, they then agree to a divorce based on a period of separation.

In England, unless you are prepared to wait at least two years before applying for divorce you must apportion blame and cite the unreasonable behaviour, adultery or desertion of your spouse.

In 2017 in England unreasonable behaviour was the most common reason for couples divorcing: 52 per cent of wives and 37 per cent of husbands petitioned on these grounds and, in same-sex couples, these figures were 83 per cent among women and 73 per cent among men. In comparison in 2012-2013 only seven per cent of divorces in Scotland were based on unreasonable behaviour.

The call for reform in England existed long before anyone had heard of Tini Owens. The statistics speak for themselves. Where such a high percentage of divorces rely on apportioning blame how can that minimise the acrimony between the couple and the effect this can have upon their children? As a collaborative lawyer and a family mediator, there is a definite advantage when helping couples reach an agreement on finances and the arrangements for their children, if there is no fault-based divorce action simmering in the background.

The proposed reforms in England, however, go one stage further and would replace the current system with one where one or both parties simply give notice to the court that the marriage has broken down irretrievably. They will not need to state any facts and there will be no opportunity to contest the divorce. The divorce would be granted in two stages: firstly, a provisional divorce and the then the final divorce. The proposals recommend a period of six months between stage one and two.

If these proposals are enacted it will create a truly no-fault divorce system – one which many say will better serve the needs of a modern and family-friendly society than the current Scottish system.

So, is now the time to consider whether the Scottish divorce system should also be reviewed?