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Domestic Relations Assignment

Part A- Research Methods

My initial research started with a broad search on Google to expand my knowledge

on what a waiting periods for divorce is and why they’re used in many jurisdictions
worldwide. This led me to a plethora of websites and in particular ‘Divorce Writer’1
and ‘Dads Divorce’2, where I found out the benefits in which a waiting period in
divorce can have, for example, to allow for a possible reconciliation. This gave me a
greater understanding of the concept of waiting periods for divorces and lay the
principles in which my report was based upon.

As my confidence grew in understanding the basis of a waiting period, I then began

to research Scotland’s position concerning waiting periods and the nature of these.
This research was carried out both online and in the law section of the library, using
various primary and secondary sources. It involved determining the current
legislation in Scotland regarding divorce law. I started with a simple Google search,
searching ‘divorce law in Scotland’. I found the Thomson Reuters Practical Law3
website useful as well as ‘BTO Solicitors’4 as it explained the law and provided the
key pieces of legislation used in Scotland in relation to family law. Various books in
the Andersonian library. especially ‘Family Law Reform’ 5 highlighted the legislation
set by the Scottish Parliament and used by the Scottish Courts in relation to
divorces. Once I identified what the legislation was, I used the book ‘Scots Family
Law’6 in order to detail and access the legislation to determine Scotland’s current
stance on waiting times in a divorce.

The next task which I faced was deciding which other jurisdiction my report will be
based upon and used as a comparison. I excluded non-English speaking countries
as the language barrier could prove to be quite difficult to overcome. Originally, I was
drawn towards Australia as I didn’t have much knowledge of their legal system.
However, as my research in the library and online broadened I was drawn towards
America. The use of online websites, especially ‘Oxford LibGuides’7, were vital in my
understanding of how the law in America works, with each individual state having
their own laws. It fascinated me that different States followed different laws and the

1
Divorce Writer, ‘How long does it take to get a divorce’, <https://www.divorcewriter.com/how-long-does-
divorce-take>
2
Jennifer M. Paine, ‘5 Reasons why we have divorce waiting periods’, Dads Divorce
<https://dadsdivorce.com/articles/divorce-waiting-period-5-reasons-why-we-have-them-why-you-want-
them/>
3
Alasdair Loudon, ‘Family law in the UK (Scotland): Overview’, Thomson Reuters Practical Law
<https://uk.practicallaw.thomsonreuters.com/8-575-5546?
transitionType=Default&contextData=(sc.Default)&firstPage=true> 1st May 2019
4
BTO Solicitors, ‘Divorce in Scotland’, <https://www.btofamilylaw.co.uk/separation-and-divorce/divorce-in-
scotland/>
5
Joe Thomson, ‘Family Law Reform’, (published by W. Green & Son Ltd 2006) 14
6
Jane Mair, ‘Avizandum Statutes on Scots Family Law’ (14th Edition, Avizandum Publishing Ltd Edinburgh 2016)
25
7
Oxford LibGuides, ‘United States: legal resources; Legal System,’ Bodlein Libraries University of Oxford
<https://libguides.bodleian.ox.ac.uk/c.php?g=422817&p=2887103> last updated 20th October 2020

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book ‘The Law and Separation and Divorce’8 narrated how different the laws in each
state regarding divorce can be. The easily obtainable state legislation and other
supporting information also made the decision to choose America a lot easier.

The next task which presented itself was the difficult one of choosing which State to
base the report on. I Googled the ‘divorce rate by State’ to find out which States
have the highest and lowest divorce rates. I used the ‘Word Population Review’9 to
gain the information. I found that the States of Oklahoma and Nevada had the
highest ratio of divorces in the United States and I was originally drawn to focusing
my research on one of these States. However, I decided to look into the lowest ratio
of divorces to see if there was evidence of a corelation between the legislation
dealing with divorces, and perhaps a complicated divorces process, leading to the
lower rates of divorce. The States of Illinois, Louisiana and Massachusetts had the
lowest rates of divorce in the United States and in the end, I decided to choose
Massachusetts. This was principally because of the great difference in their waiting
period compared to Scotland’s as well as the fact I’ve visited Massachusetts, making
my decision more interesting for me.

The more challenging part was understanding how the law worked in Massachusetts
and finding the primary legislation which regulated divorces. I used many different
secondary sources, in particular websites, to understand the law of Massachusetts
and direct me towards the primary sources. In particular, ‘Ballotpedia’10 , which
provided me with an overview of Massachusetts Law. The ‘Library of Congress11 was
the most important source as it provided me with a link to the primary legislation
which regulated divorces in Massachusetts - The Constitution of Massachusetts.
Additionally, vital secondary sources in particular online resources were used in
order to understand what a degree of nisi was and this directed me to various cases
in Massachusetts regarding divorces.

8
Parnell J.T Callahan, ‘The Law of Separation and Divorce’, (Oceana Publications, Inc 1970, Third Edition
Revised by Oceana Editorial Staff)
9
World Population Review, ‘Divorce Rate by State 2020’ <https://worldpopulationreview.com/state-
rankings/divorce-rate-by-state>
10
Ballotpedia, ‘Massachusetts Constitution’ >https://ballotpedia.org/Massachusetts_Constitution
11
Law of Congress, ‘Commonwealth of Massachusetts’ <https://www.loc.gov/law/help/guide/states/us-
ma.php> last updated 11th October 2018

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Part B- Comparison of Jurisdictions

Law in Scotland

At this present time, the legislation which governs divorce law in Scotland is found in
the Divorce (Scotland) Act 1976 as amended by the Family Law (Scotland) Act 2006.
The Act narrates the instances when a waiting period is required when applying for a
divorce in Scotland. The Divorce (Scotland) Act 1976 as amended provided the two
grounds in which a divorce can be sought in Scotland. The first is when a marriage
has broken down irretrievably12, and the second deals with a gender recognition
certificate13. Only a divorce being sought under an irretrievable breakdown is
governed by any sort of waiting period and even then, only in specific instances.

In Scotland there are four instances in which a divorce can be granted under the
ground of an irretrievable breakdown of the marriage. The first two reasons do not
require a waiting period before a divorce can be applied for. This is when ‘adultery’ 14
has taken place, and also where the defender ‘has at any time behaved in such a
way that the pursuer cannot reasonably be expected to cohabit with the defender.’15
In these circumstances a divorce action can be raised straight away.

The two instances where a waiting period for divorce is required in Scotland, are
when irretrievable breakdown is to be established by the parties ceasing to cohabit
as husband and wife. The first is when there has been no cohabitation between the
parties for a continuous period of a year16 and both parties are in agreement to the
period of separation and the divorce itself. The second instance arises when the
other party refuses to consent the divorce. In that case there must be no cohabitation
for a continuous period of two years17. Before the amendment introduced by the
Family Law (Scotland) Act 2006 the periods were two years when the parties agreed
and five years when the parties did not agree.18 This possibly reflects the changes in
today’s society on the basis that divorce was becoming more common and accepted
than in the mid 1970’s, and that the legislation was required to reflect these changes
in attitude making the process easier and quicker.

Furthermore, the waiting period for non-cohabitation divorces can be effectively

extended under Section 2 of the Divorce (Scotland) Act 1976. If it appears to the
court that there is a reasonable chance of a reconciliation between parties it can
continue the divorce action and for whatever time they see fit for an attempt at
reconciliation.19 This provides discretion to the court to look at the specific facts of
particular cases and extend the waiting time to encourage reconciliation if it is
reasonable to do so.

Encouragement for reconciliation is further emphasised in Section 2(4) of the

Divorce (Scotland) Act 1976. This states that when parties split and then reconcile
12
Divorce (Scotland) Act 1976 s.1(a)
13
Ibid (b)
14
Ibid (2)(a)
15
Ibid (b)
16
Ibid (d)
17
Ibid (e)
18
Family Law (Scotland) Act 2006 s11. (a) & (b)
19
(n10) [s.2]

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for a period or periods of up to 6 months, then split again, the reconciliation period
does not count towards the separation. You don’t have to start the clock again, but
you do discount the period of reconciliation from the calculation.

Law in Massachusetts

The Constitution of Massachusetts was ‘the fundamental governing document of the

Commonwealth of Massachusetts’.20 This was interesting due to the fact Scots law
can be found in many different statutes, however in Massachusetts it is only located
in one lengthy constitution.

The position in Massachusetts is partly similar to Scotland, however, differs in

various ways. Chapter 208 of the Constitution of Massachusetts lays down the
ground for a divorce in Massachusetts. In Massachusetts there are more options
listed in which a divorce can take place compared to Scotland. For example,
impotency and habits of intoxication are acceptable ground for a divorce, as well as
cruel and abusive treatment, and similar to Scotland, an irretrievable breakdown of
marriage. 21

Likewise, in Massachusetts as it is in Scotland, a divorce based on irretrievable

breakdown is dealt with differently compared to the other grounds for a divorce and it
is only under an irretrievable breakdown when a waiting period is required. Section
1.A and 1.B of Chapter 208 of the Constitution detail the process for a divorce on the
grounds of an irretrievable breakdown. Both sections are quite discursive and
describe the divorce nisi which is the most prominent difference regarding waiting
times in Scotland and Massachusetts, as explained below.

Section 1A of Chapter 208 of the Massachusetts Constitution deals with the position
in which a separation agreement has been agreed by the parties, in other words both
the parties have agreed upon a divorce. The separation agreement will be heard
before the Court within 30 days. If the judge finds the terms of divorce is ‘fair and
reasonable’22, they will enter into divorce nisi. When this nisi period is over the
couple are officially divorced.

The other instance in which a divorce based on irretrievable breakdown established

by a waiting period can take place is mentioned in Section 1B of Chapter 208 in the
Constitution. This is when there has been no signed statement between the parties
and no dissolution agreement. In this circumstance, the parties have to wait 6
months before further action can take place. It is only after the 6-month period has
expired that a hearing will take place and then the court may grant the parties a
divorce nisi.

20
(n8)
21
Massachusetts Constitution Ch.208 Section 1
22
O’Hickey, Brick, Jones McBrien & Hickey LLP, ‘Family law in United States: Massachusetts: Overview’,
Thomson Returns Practical Law<https://uk.practicallaw.thomsonreuters.com/2-611-0925?
transitionType=Default&contextData=(sc.Default)&firstPage=tru

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The nisi period is the most significant difference between the jurisdictions. It’s
described as a ‘mandatory waiting period between the time when your divorce in
granted and when it is final’. 23 This allows the couple one final chance to reconcile
their relationship before they are legally divorced.

The duration of the nisi period depends on whether the decree nisi has been
granted under Section 1A or 1B. Parties who have filed an ‘uncontested Joint
Petition for Divorce’ 24 under section 1A have to wait an additional 30-day period
compared to a ‘contested action’ 25 under Section 1B. Under Section 1A, after the
court hearing, if the judge approves the divorce, the divorce nisi will be issued 30
days later, and then the nisi period will begin which lasts a period of 90 days. This
means when the couples agree on a divorce, their waiting period will be 120 days
before they are legally divorced. 26

When filing for divorce under Section 1B the nisi waiting period of 90 days is
required before the divorce is final, however this is only after the initial 6-month
period has expired. The nisi period expires automatically after the waiting time has
passed, ‘giving rise to a Judgement of Divorce Absolute’. 27

It’s important to understand that the marriage hasn’t officially ended until after the
divorce nisi period, and only then are you are able to re-marry 28. This was
highlighted in case of Balistreri v Balistreri 29 which states that ‘the common-law rule
remains that a marriage is not over until the divorce judgment becomes absolute’,
this of course happens after the nisi period has expired.

The Nisi period in Massachusetts is frequently criticised and has been described as
being ‘a relic of a bygone era’30 which only complicates the process of divorce and
slows it down based on the idea that divorce is the morally wrong thing to do. It was
by State Senator Cynthia Stone Creem who proposed legislation to reduce the nisi
period to 30 days. The legislation was titled ‘An Act Relative to Equitable Divorce
Proceedings’31. No changes have been made regarding the original legislation,
however in 2019 it was heard in front of the Massachusetts House and Senate 32,
there is a desire for change.

23
O’Connor Family Law, ‘Massachusetts Divorce: Understanding the Nisi Period’,
<https://familylawma.com/blog/massachusetts-divorce-understanding-the-nisi-period/>
24
Robin Nardone & Burns & Levison LLP. ‘What is the Nisi Period’, JDSUPRA
<https://www.jdsupra.com/legalnews/what-is-the-nisi-period-90648/> 20th September 2019
25
ibid
26
ibid
27
Infinity Law Group, ‘Massachusetts Divorce Process’, <https://www.infinlaw.com/divorce-process/#the-nisi-
period>
28
(n21)
29
93 Mass.App.Ct. 515 (2018)
30
Jason V.Owens, ‘What is the 90-day Nisi Period in a Massachusetts divorce?’, Lynch & Owens P.C.
<https://www.lynchowens.com/blog/2016/march/what-is-the-90-day-nisi-period-in-a-massachusett/> 21st
March 2016
31
Bill S.873 191st (Current)
32
(n21)

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It’s clear to see from reviewing both laws regarding divorces and waiting periods in
Scotland and Massachusetts that there are various similarities and differences
between the jurisdictions. As previously explained, in both jurisdictions it is only
when filing for a divorce under an irretrievable breakdown when a waiting period is
required. The fundamental difference is the length of the waiting period, in order to
become divorced. In Scotland, when seeking a divorce under an irretrievable
breakdown as established by non-cohabitation, the parties must wait the requisite
period before they apply to court to obtain their divorce. In Massachusetts however,
when there is an agreement the waiting period begins after they have gone to court
and are then issued with a degree nisi, and when there is no agreement between the
parties, there is a waiting period both before and after going to court. The waiting
period in Scotland required, does require no cohabitation between the parties,
however there’s no mention of this in the Massachusetts legislation.

In summary both Scotland and Massachusetts have a waiting time for divorce in
particular circumstances. Similarly, in both jurisdictions however, there are signs that
this waiting period may be reduced as a result of differing attitudes in our changing
society. This was shown in Scotland with the reduction of the waiting period and in
Massachusetts with the proposed bill to also reduce it with a driving force to
eradicate it altogether. This shows that although there’s presently a waiting period in
both jurisdictions, this might be reduced further and especially in Massachusetts
case, removed completely.