There is no doubt in your mind why you are getting divorced. Your husband has left you and taken up with another woman. Instinct screams out, “Why should I be punished for my husband’s bad behaviour?” 

In Scotland, as in many other jurisdictions, the law has moved on from making the sinner pay the price. No-fault divorce has been the basis of our legal system for many years. It would take a more academic lawyer than me to argue out the pros and cons, but the tabloid version is this: any marriage has lots of highways and byways, and it may not be obvious or easy to apportion responsibility for the final separation. 

Yes, there has been an affair but what was the relationship like already between spouses? Yes, there may have been drinking, violence, verbal abuse, long silences, financial selfishness or profligacy (all categorised in divorce law as ‘unreasonable behaviour’), but how much did these individual items contribute to the marriage failing? The answer may be 100% but very, very often it is not as straightforward as that, and it can take two to tango. 

That is all jurisprudence - the study or theory of law if you like.

Coming back to practical law, the net result is that once a marriage ends for good, our legal system and courts hold that it is wrong to prolong the misery and stress, it adds distress to rake over the ‘who did what’, and much less awful to stop, assess what needs to be done to cut the marital tie and send each spouse off on the new chapter of their lives, retaining as much as possible by way of money, property, relationship with children, dignity and hope. The law considers it a waste of time, money and anxiety to replay the failure of the marriage in court.

As a result, no matter who was ‘to blame’, both partners are treated as equal, and as long as they have separated permanently, they are both entitled to divorce. If separated for one year and both agree, the divorce is available then. If one spouse refuses to divorce, then once separated for two years, the party wanting divorce can unilaterally get it. 

The same neutrality works in financial and property matters. the law dictates ‘fair sharing’. 

Fundamentally all money, houses, pensions, business assets are valued as at the date of separation and split in equal shares between the spouses. It doesn’t matter in whose name a bank account or a pension is, most assets are treated as matrimonial, and so are divided fairly. There is some flexibility, for example, a wife who has given up a career to look after her husband and young children may be entitled to a larger share. The rules for lawyers and sheriffs on these matters are quite detailed and authoritative. 

So as much as a wronged and angry spouse would like to show up an errant ex in court, or perhaps wants the world to know that he/she was blameless so needs that ex to be publicly shamed, none of this is fashionable in our law. Indeed if a spouse were to insist on going down the adultery or unreasonable behaviour route, a sheriff presiding over the case is likely to make an adverse ruling on costs against the pursuer who dragged everyone needlessly through the mud.

Dividing property after divorce

The property sale issue is integral to your separation and divorce personally, but as a matter of law is not quite so closely related. Where any two people jointly own property, either one can force a sale or demand to be bought out. This might be commercial landlords, members of a family, friends or spouses, but in broad terms the rules are the same: where there is a divorce action in court – on any grounds, contentious or consensual, the sheriff can be asked to regulate the division of that property in line with other financial arrangements or orders made. This often has the effect of holding back a sale until young children are older, or giving one spouse a higher share of sale proceeds than a standard half. But once again, this is not a function of who was to blame for the marriage breakup.

Divorce is not pretty, and no one enjoys the process. But rather than making it even worse, the law – and the lawyers – try to help participants through it with less rather than more anguish.