Amending for non-cohabitation: is it allowed?
Sheriffs are differing over whether a divorce action raised before the expiry of the required non-cohabitation period can be amended later to found on such a period, and legislation may be needed
Douglas v Douglas  SC PER 4 (13 November 2018) has raised a number of interesting points for practitioners, but perhaps the most noteworthy is the sheriff's comments regarding the interpretation of the Divorce (Scotland) Act 1976, and its interaction with the amendment procedure.
Since 2004 there are two grounds for divorce in Scotland: the irretrievable breakdown of the marriage or the issuing of an interim gender recognition certificate to either party. The first, and most common ground, is established by appropriate averments which fall into, now, four categories. Those categories are set out in s 2 of the 1976 Act. The first is the defender's adultery; the second is the defender's unreasonable behaviour; and the third and fourth are periods of non-cohabitation immediately preceding the raising of an action.
As is often the case at the raising of (what will likely be) a defended action of divorce, the pursuer is compelled to include averments regarding the defender's unreasonable behaviour, as parties have not lived apart for the requisite period of time prior to raising the action. It is also the case that practitioners are, insofar as is possible, expected to try to limit the matters for which evidence requires to be led at proof – which includes giving careful consideration to the merits of the action. Accordingly it is not uncommon for the pursuer to seek to reduce the basis of divorce prior to proof, and indeed defenders often intimate their intention to consent to the divorce in terms of s 2(d) of the 1976 Act in the context of negotiation.
However Sheriff S G Collins QC has again (having made similar observations in McNulty v McNulty 2016 Fam LR 145) made us question whether practitioners, and indeed sheriffs, are interpreting and applying the 1976 Act correctly when considering such amendment.
In Douglas, the parties separated on 8 October 2014. The pursuer raised a divorce action as evidenced by the defender's unreasonable behaviour on 30 July 2015. In June 2017, the pursuer sought to reduce the grounds of divorce on the basis that the parties had, by that time, been separated for more than two years. At the outset of the proof, Sheriff Collins queried whether it was competent for the pursuer to do so notwithstanding his amendment having already been allowed. His reason was one of statutory interpretation. He observed that the wording of the statute was that parties had to have been separated for the requisite period of time before an action is raised in order to prove divorce on that basis. Sheriff Collins discusses the difference between "raising an action" and "amending an action", and concludes that Parliament must have deliberately made the distinction between the two when drafting the legislation.
In McNulty Sheriff Collins does however observe that if a strict interpretation of the statute were followed in practice, it would produce unfortunate results. Either more divorce actions would proceed using contentious averments, or else actions would require to be dismissed and new actions brought to introduce non-cohabitation averments, resulting in additional effort and expense.
Neither counsel in Douglas tried to persuade Sheriff Collins that Ray v Ray  SC BAN 60 (which also considered this point) was correctly decided, or that his concerns in McNulty were unreasonable. Pragmatically the pursuer sought to reintroduce averments of the defender's unreasonable behaviour by way of amendment in a diluted form, to “take some of the heat out of it”, as stated by the pursuer's agent. No opposition to the amendment was lodged. Accordingly the divorce was granted as established by the defender's unreasonable behaviour.
A word of caution to all practitioners when giving advice to clients. In Douglas, Sheriff Collins states that had he been asked to determine the pursuer's motion in June 2017, it was “likely that I would have refused it on the grounds that the facts necessary to prove divorce on the basis of two years' non-cohabitation could never be proved… the mere fact that the court did allow the amendment does not amount to a judicial determination to the contrary. There was no suggestion that this point was ever raised, let alone determined, when the motion to amend was granted”.
Evidently the wording of the statute requires to be updated to reflect what is happening in practice, and it is hoped that this is considered in the Scottish Law Commission's current review of family law in Scotland. At present, however, there is clearly a variance of approach of which practitioners ought to be aware.
Trudy E Burns is a senior solicitor with Morton Fraser LLP