Q4 Briefly outline ALL the grounds of divorce and dissolution of civil partnerships in Scotland then select one of the irretrievable breakdown grounds and explain in detail, how it applies in practise with reference to legal principles and cases as appropriate
Two grounds of divorce or dissolution. Gender recognition certificate or irretrievable breakdown. Divorce (s) Act 1976 & Civil Partnership Act 2004
CP – Grounds for invalidity mirror marriage – cannot be valid if; different sexes, under 16, already in CP or does not give consent to marriage. Death – Presumption of Death (s) Act 1977 Actual/presumed – if spouse/cp is not known to be alive for 7yrs. Presumption is rebuttable by proof up to granting of CT decree. Can re-marry (does not revive marriage however)
Adultery – S1 (2) a Divorce (s) Act 1976
Irretrievable breakdown of marriage is established if “since the date of marriage the defender has committed adultery”. Cheating essentially. Adultery is not a ground for divorce for dissolution for CP as it would be impossible. Adultery is gender specific, voluntarily having sex by married person who isn’t their spouse. CP – constitutes intolerable behaviour. Same sex is not adultery its intolerable behaviour
Hunter v Hunter 1900 – Presumption of death case
Mr H deserted her and ran off to Canada and had not contacted her in a long time. She presumed he was dead and got involved in a new marriage. He returned, sought divorce on her adultery. She didn’t ask for one when he deserted so court held her to be guilty of adultery. Divorce was granted.
Defences for Adultery
Lenocinium s1 (d) Divorce (s) Act 1976 “Pimping”
Essence of defence us that pursuer actively promoted the defenders adultery or was Art and Part of defence. E.g “pimping”
Gallacher v Gallacher
Mr G wrote to wife urging her to give him grounds for divorce. So she found new lover. Held, she wouldn’t have done this but Mr G was urging. However no divorce was granted. 6yr later, he tried again and at the time Mrs G was still with new lover. Her defence for Lenocinium failed this time as she chose herself to live with new man and could say she was forced. Divorce granted.
Condonation s1 (1) 3 – Pursuant know of the adultery but continue to live with the defender and amounts to “legal forgiveness” period of cohabitation up to 3 months is permitted, this act encourages reconciliation.
Behaviour – s1 (2) Divorce (s) Act 1976 + 117 (3) Civil Partnership act 2004
Intolerable behaviour in marriage or CP is “since date of marriage or registration of CP, the defender has at any time behaved in such a way the pursuer cannot reasonably be expected to cohabit with defender. A mere physical condition doesn’t constitute as behaviour.
Tharlow v Tharlow 1975
It has been accepted in English law that as a result of debilitating illness a spouse is unable to fulfil obligation of marriage = behaviour.
Hastie v Hastie 1985
Separated and in dispute over custody of child. Wife made up that H had sex with daughter to ruin his chances of custody. Held, allegations so destructive H couldn’t live with W, so H was granted divorce based on behaviour.
Stewart v Stewart
W accused H of adultery. But no proof, H kept coming home late- different woman chilling together every night. Intolerable behaviour NOT adultery.
Non Cohabitation with consent 1yr
S1 (d) Divorce (s) Act 1976 – There must be no cohabitation between parties or cp at any time during marriage and immediately preceding the bringing up of action. Defender must positively consent to the granting of the decree, consent can be written at any time before the decree. The 1976 + 2004 act allow parties to live together as H+W or CP for period up to 6 months without interrupting the 1yr period.
Non Cohabitation w/o consent 2yr
S1 (e) – same as above. If defender refuses agree to the divorce or dissolution and no other grounds of termination exist must wait 2 yr. parties entitled to live for a period up to 6 months which doesn’t affect the 2 yr period
Pre-Gender Recognition act 2004 – sex recognised at birth and fixed (biological)
Bellinger v Bellinger 2004 – held, like Corbett, biological criteria could only be used. This raised problems for transsexuals. Both men so marriage was void. They issued a declaration of incomparability of Article 12+8.
Gender recognition certificate – GRA 2004 act
A post transsexual can apply for a GRC when acquired gender will be recognised as the applicant’s new sex. Where applicant is married or CP only an Interim could be issued until D or CP is dissolved. S1 (3) b 1976 – Provides right for divorce when interim is issued and does not lapse full GRC is granted.
To get a Simplified Scottish divorce, the following must apply;
- You are applying for divorce based on the grounds of 1-year separation with consent or 2 years separation without consent.
- There are no children of the marriage under the age of 16.
- There are no financial matters to sort out.
Requirements to use the Ordinary Procedure
- There are children under 16 years of age.
- We have been separated for 2 years or we have been separated for one year and my spouse agrees to the divorce.
- There are no outstanding issues between us regarding the children or finances.