The grounds of divorce vary in different countries. Many jurisdictions, including England, are considering abolishing divorces that are based on fault and focusing on divorce actions raised on the basis of the time the parties have been separated.

In Scotland, the underlying basis for applying for a divorce is that the marriage has broken down irretrievably. That can be for one or more than one reason. You can ask the court to grant a divorce on the basis of your spouse’s unreasonable behaviour, adultery, or if you have been separated for more than one year if you both agree  or when you have been separated for over two years the other party’s consent is not required.

There are good reasons why no fault divorce is becoming more popular.

It is widely known that the reason for the breakdown of the relationship does not affect the financial outcome except in very restricted circumstances. If, for example, one party has committed adultery that does not mean that the other party should receive a bigger share of the assets. Nor does the grounds of divorce affect the discussions in relation to the welfare of the children (Although if there has been unreasonable behaviour this might be a factor in determining where the children reside)

If you want to apply for a divorce before you have been separated for one year then you have to use the grounds of either adultery or unreasonable behaviour.

It tends to be more difficult to obtain the evidence for these two grounds and the fees are higher.

Also, there is little doubt that raising a divorce action on the basis of one of these grounds can cause bad feelings  even when both parties know that the grounds are true. This could make negotiation harder.

After they have separated many people want to try and resolve issues relating to the welfare of the children and the finances. Sometimes this can take months or even over a year.

A common approach would be to negotiate these issues and then agree to proceed with a divorce based on one years separation.

The best way forward is to pick the divorce that will be the quickest and most cost-effective to obtain without prejudicing any financial claim you may have. 

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