8615255
Description
Mind Map by Ruaraidh Simpson, updated more than 1 year ago
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Created by Ruaraidh Simpson
about 7 years ago
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Adult Relations: Ending Marriage
(& Civil Partnership) (Scotland)
- Ending Marriage
- Divorce = end of marriage
- Dissolution = end of civil partnership
- Divorce (Scotland) Act 1976
- Policy - reconciliation if possible,
allow exit if irretrievable breakdown,
secure beset interests of any child
- Divorce = end of marriage
- Grounds
- s.1 Divorce (Scotland) Act 1976
- (1) Court may grant decree of divorce
if, but only if, it is established that
- (a) marriage
has broken
down
irretrievably
- (b) an interim
gender recognition
certificate has ...
been issued to
either party to
marriage
- (a) marriage
has broken
down
irretrievably
- (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
- (a) adultery
- (b) "intolerable behaviour"
- (c) one year non-cohabitation with agreement
- (d) two years' non-cohabitation
- (a) adultery
- (1) Court may grant decree of divorce
if, but only if, it is established that
- s.1 Divorce (Scotland) Act 1976
- Irretrievable Breakdown
- Adultery (s.1(2)(a) 1976 Act)
- since the date of the marriage the defender has committed adultery
- MacLennan v MacLennan
1958 SC 105
- 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
- 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
- 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
- MacLennan v MacLennan
1958 SC 105
- since the date of the marriage the defender has committed adultery
- 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
- 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
- Gallacher v Gallacher 1928
- 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
- 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
- Gallacher v Gallacher 1934
- Continued adultery
so defence of
lenocinium failed.
No longer a
response to the
letter but acting on
her own desires.
- Continued adultery
so defence of
lenocinium failed.
No longer a
response to the
letter but acting on
her own desires.
- Gallacher v Gallacher 1928
- 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
- Condonation (s.1(3) 1976 Act)
- 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
- (more important historically when
it mattered financially and socially
who was at fault for divorce)
- (more important historically when
it mattered financially and socially
who was at fault for divorce)
- 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
- Intolerable Behaviour
(s.1(2)(b) 1976 Act)
- 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
- (+ causation)
- (whether or not as a result
of mental abnormality and
whether the behaviour
has been active or passive)
- (+ causation)
- 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
- Non-Cohabitation (s.1(2)(d) 1976 Act)
- 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
- s.1(2)(e) 1976 Act - 2 years without consent
- 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
- Cohabiting (s.13(2) 1976 Act)
- 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
- 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
- Adultery (s.1(2)(a) 1976 Act)
- Reconcilliation
- Despite moves to make divorce easier or
more available the state continues to be
pro-marriage and reconciliation is facilitated
- 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
- 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
- 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
- Despite moves to make divorce easier or
more available the state continues to be
pro-marriage and reconciliation is facilitated
- Religious Impediment
- s.3A 1976 Act
- notwithstanding irretrievable breakdown has been established the court may
- (a) on the application of a party AND
- (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)]
- (2) this subsection applies where
- (a) applicant is prevented from
entering a religious marriage by
virtue of a requirement that
religion of that marriage
- (b) other party can act so as to remove ...
impediment which prevents that marriage
- (a) applicant is prevented from
entering a religious marriage by
virtue of a requirement that
religion of that marriage
- (a) on the application of a party AND
- s.3A 1976 Act
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