On April 6 2022, England and Wales introduced "no-fault" divorces. This is a huge shakeup to divorce laws – the biggest, in fact, since the Divorce Reform Act 1969.

The 1969 legislation introduced the notion of no-fault divorce. Couples became able to end marriages that had "irretrievably broken down" – but to do so, one party had to evidence a "fact" about the conduct of the other.

In practice, this meant that the "fact" of marital breakdown usually portrayed one party as at fault. The marriage had broken down, say, because of adultery or "unreasonable behaviour". This could lead to long-drawn-out, stressful and costly disputes. At worst, it enabled some domestic abusers to trap spouses in marriage.

Since April 2022, there's no need to supply a "fact" to justify the breakdown of the marriage. Instead, one or both spouses simply have to make a statement saying that the marriage has irretrievably broken down, and the divorce can be granted.

The government has said that this legislation will "remove unnecessary conflict to ease stress on couples and children" – and it's been argued elsewhere that it frees up time and energy for both parties to focus on financial planning for the future and the provision of childcare.

How are things different in Scotland?

In Scotland, the grounds for divorce are the same as in England and Wales – the "irretrievable breakdown of a marriage". The difference is that a Scottish spouse still needs to evidence a reason for the breakdown. This could be one of the following:

• Their spouse has committed adultery.
• They have behaved in such a way that the other party shouldn't be expected to live with them ("unreasonable behaviour").
• The couple hasn't cohabited for a year (with the other party's consent) or two years (no consent required).

If you're unable to satisfy the court that one of these reasons has led to the marriage's breakdown, your divorce will be refused. This is in sharp contrast to England and Wales, where the simple declaration of breakdown is enough – it doesn't need to be defended. It has become a simple administrative procedure – a change paralleled by the advent of registry weddings.

A common misconception is that proof of adultery or unreasonable behaviour will result in financial compensation. This is only very rarely the case. More often than not, the attribution of fault is simply a means of justifying the divorce.

What other differences are there?

In England and Wales, the divorce application is distinct from the post-divorce financial settlement. This settlement covers things like separating assets, childcare payments and pension splits. It's usually dealt with at the same time as the divorce itself, but the two processes are legally distinct.

In Scotland, they are concurrent and legally connected – the law exists to create a "clean break", meaning that financial matters are resolved ahead of time.

In practice, this means that in England and Wales you can reach a financial settlement after the divorce has been issued. In Scotland, the divorce ends the couple's financial obligations to each other.

This is a big difference – but divorce proceedings in all four nations are made up of many smaller points of detail. This could be relevant to you if you have a choice as to where proceedings will take place. A family lawyer can help you to decide whether differences in legislation should sway your decision.

Childcare

In Scotland, childcare arrangements can be revisited after divorce – but they are still dealt with at the same time as finances and the divorce itself.

Pensions

There's a difference between the way that pensions are dealt with in Scotland as opposed to England, Wales and Northern Ireland. In the three nations, the pensions considered for separation are those built up both before and during the marriage or civil partnership.

The Scottish system, by contrast, counts only those pensions that were built up during the marriage or civil partnership – and those which were built up previously belong to the pension holder.

Applying for a divorce

In England and Wales, a couple can make a joint application for divorce or you can apply on your own. In Scotland, however, the application has to be submitted by one person.

There are two types of divorce in Scotland – the "simplified" or "do-it-yourself" procedure and the "ordinary" or "non-simplified" procedure.

To get a DIY divorce, you need to meet all of the following criteria:

• Your marriage/partnership has irretrievably broken down because of ⑴ one year's separation with consent, ⑵ two years' separation without consent, or ⑶ the issue of an interim gender recognition certificate.
• There are no children from the marriage/partnership under 16.
• There are no financial issues to be resolved.
• Neither party is unable to manage their own affairs (because of mental illness, personality disorder or learning disability).
• There are no ongoing court proceedings which could end the marriage/partnership.

It's important to note that all of the above must be met to qualify a couple for a simplified procedure.

How much does it cost?

Divorce fees in Scotland depend on the procedure used and whether the application has been lodged in a sheriff court or the Court of Session. Fee exemptions are possible if you receive certain state benefits.

These are separate from any solicitor fees.

Conclusion

The key difference between divorce in Scotland and divorce in England and Wales centres on the issue of the marriage's breakdown. Applicants in England and Wales have only to declare that the marriage has irretrievably broken down – but in Scotland, they must provide proof of the fact.

On top of this, there are some differences of detail between the two proceedings – so if your marital situation means you have a choice of getting a divorce in one country or the other, it could be in your interests to seek legal advice before deciding.

At Milners Law, our friendly, no-nonsense team of Yorkshire family lawyers are on hand to help you navigate the choppy waters of divorce and separation. If you need expert guidance, please don't hesitate to contact us.