Celebrity divorces are not the norm

A poll by English law firm Pannone showed that 57 per cent of Brits agree it is too easy to divorce these days. The widespread publication of celebrity divorces can give the impression it is an uncomplicated process.

A good example is the Cheryl Cole and Ashley Cole divorce. In my understanding, Cheryl was able to divorce Ashley on the basis of his behaviour. He did not contest that and the divorce in England was granted before any financial arrangements were ultimately agreed between the parties.

With Katie Holmes and Tom Cruise, Katie reportedly moved to the jurisdiction of New York state so, having reached a quick agreement on finances and care arrangements for the couple’s daughter, they were able to be divorced in a matter of weeks.

Celebrity magazines can lead people to believe divorce rules are the same everywhere, but this is not the case.

Unlike England, in Scotland, the court will not grant divorce until all arrangements for the care and upbringing of children of the marriage under the age of 16 are determined or agreed by the parties and financial provision has been determined by the court or agreed by the parties. The more dispute, the longer the process, unless an alternative dispute solution such as mediation is successful.

Clients are often surprised by how complicated it can be if they are required to embark upon a court process. People tend to think they can be divorced separately from the arrangements for the children and financial provision having been determined.

Time apart

In Scotland, there has been a reduction in the length of time couples have to be separated before they can divorce. This was reduced to one year if both partners consented, and to two years without consent, in May 2006.

Prior to this, people had to wait two years or five years unless adultery or behaviour within the marriage was an issue. Those separation periods remain in England.

This led to some divorces taking place earlier than if these changes had not taken place. And there was a sharp increase in divorces immediately after the legislation was passed, which dropped off again over the following years (although the reported average of the years since 2006 is slightly higher than levels recorded immediately before the change in legislation).

This increase may be because of the reduced separation period, non-cohabitation periods in Scotland and the number of marriages where there are no children, so that simplified divorce is possible with the same reduced separation periods.

The reduction of the separation periods meant people no longer had the same reliance upon adultery and divorce grounds, which can still carry a certain stigma.

Also, people in both jurisdictions may have waited initially for the end of the financial crisis, but having seen it was going to last a lot longer, decided there was no point delaying the divorce further.

Some people, however, may still be put off divorce proceedings because of poor property and financial markets. They anticipate that potentially it is better to wait for an improvement in the markets before liquidating assets rather than transferring them to the other spouse in the current deflated markets.

Interestingly, judges in a high profile case are set to announce their ruling on whether company assets can be claimed in a divorce.

Although the High Court ordered the husband to pay £17.5m to the wife, it decided he was unlikely to comply and ordered that properties held in the name of companies owned and controlled by him be transferred to his wife as part of the payment. The companies appealed to the Court of Appeal on the basis that the properties belonged to the companies (separate legal entities) and not to the husband personally.

Siobhan Kelly is a solicitor at HBM Sayers in Glasgow