Getting a Get in Scotland - 2 | Law Society of Scotland

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This follow-up to the article published in March 2006 explains how current Scots divorce law affects Jewish clients and how solicitors can give appropriate advice

14th July 2008 | Deanna Levine

Introduction – the legal framework

In my earlier article about Jewish divorce (Journal, March 2006, 26), I explained the religious provision contained in s 15 of the Family Law (Scotland) Act 2006 (“the Act of 2006”) after it had received Royal Assent on 20 January 2006, but before it had come into effect and before several pieces of subordinate legislation had been drafted. Part II now explains the recent legislative provisions, which are predominantly of a procedural nature.

Section 15 of the Act of 2006 inserted a new s 3A in the Divorce (Scotland) Act 1976 (“the Act of 1976”) and came into effect on 4 May 2006 by virtue of art 2 of the Family Law (Scotland) Act 2006 (Commencement, Transitional Provisions and Savings) Order 2006 (SSI 2006/212). Let us briefly remind ourselves that s 3A(1) and (2) of the Act of 1976 are the key provisions, giving a court in a divorce action the power to postpone granting decree until any impediment has been removed which would prevent a party to the action from entering into a future religious marriage.

Section 3A(7) of the Act of 1976 defines a “religious marriage” as “a marriage solemnised by a marriage celebrant of a prescribed religious body [author’s italics], and 'religion of that marriage' shall be construed accordingly”. And just to round it off, “prescribed” is defined in the same section as “prescribed by regulations made by the Scottish Ministers”, which of course means that a statutory instrument is required in order to know what is meant by a “religious body”.

The Divorce (Religious Bodies) (Scotland) Regulations 2006

There accordingly followed the Divorce (Religious Bodies) (Scotland) Regulations 2006 (SSI 2006/253), which, by reg 1, came into force on 3 June 2006. The only other regulation, which is reg 2, states: “Any Hebrew Congregation is prescribed as a religious body for the purposes of section 3A (7) of the Divorce (Scotland) Act 1976.”

These regulations have to be understood in context. In the first article, I referred to the recall of the order postponing the divorce decree and the possible prerequisite by the court for a certificate to be produced by “a relevant religious body” to the effect that the Get has been obtained – s 3A(5) of the Divorce (Scotland) Act 1976 refers. I went on to explain that, for all practical purposes, the “religious body” would be a Beth Din (court of Jewish religious law), and as a Get is facilitated by a Beth Din, it is this Jewish court which would, in the first instance, be involved with the grant of the certificate. Now that these regulations are in place, “a relevant religious body” would include a synagogue, which may produce the certificate to the court.

The rules of court and the simplified procedure

As family law practitioners are aware, the simplified procedure is set out in the rules of court and is often used when spouses decide not to use solicitors. The implications of this for the parties are explained below. The published forms take into account the most recent amendments contained in the latest Acts of Sederunt for the sheriff court and the Court of Session. There are six application forms in use for the simplified procedure – three for each court. It is a simple matter to know which form to use, as the form to be used will depend upon the circumstances of the divorcing spouses and each form makes it clear on the front page precisely what the different circumstances are. Details are provided below.

Procedure in the sheriff court

Certain amendments were made to the rules of court in the sheriff court by the Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2007 (SSI 2007/6), which was brought into force by para 1(2) on 26 February 2007. For the purposes of the Act of 1976, the relevant parts of these amending regulations are paragraphs 2(14), (15) and (16)(f) to (j).

There are three forms for use with the simplified procedure in the sheriff court. They all state on the front page that they are for use on/after 26 February 2007 and specify the relevant part of the Divorce (Scotland) Act 1976 from which they emanate. The form which is used will depend on the circumstances of the parties. The forms are:

1. Form SPA (s 1(2)(d) of the Divorce (Scotland) Act 1976) comprises an application for divorce with consent of the other party to the marriage (husband and wife having lived apart for at least one year).
2. Form SPB (s 1(2)(e) of the Divorce (Scotland) Act 1976) comprises an application for divorce, husband and wife having lived apart for at least two years.
3. Form SPC (s 1(1)(b) of the Divorce (Scotland) Act 1976) comprises an application for divorce (interim gender recognition certificate issued to one of the parties after the marriage).

The Court of Session procedure

Similarly, certain amendments were made to the rules of court in the Court of Session and are to be found in the Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2007 (SSI 2007/7), which was brought into force by para 1(2) on 26 February 2007. For the purposes of the Act of 1976, the relevant parts of these amending regulations are paras 2(9) and (10) and certain parts of para 2(20)(a) to (f).

As is the case in the sheriff court, there are three equivalent forms for use with the simplified procedure in the Court of Session. Like those for use in the sheriff court, they all state on the front page that they are for use on/after 26 February 2007 and specify the relevant part of the Divorce (Scotland) Act 1976 from which they emanate. The form which is used will depend on the circumstances of the spouses. The forms are:

1. Form 49.73-A (SPA) (s 1(2)(d) of the Divorce (Scotland) Act 1976) comprises an application for divorce (with consent of the other party to the marriage), husband and wife having lived apart for at least one year.
2. Form 49.73-B (SPB) (s 1(2)(e) of the Divorce (Scotland) Act 1976) comprises an application for divorce, husband and wife having lived apart for at least two years.
3. Form 49.73-C (SPC) (section 1(1)(b) of the Divorce (Scotland) Act 1976) comprises an application for divorce, issue of interim gender recognition certificate.

Published guidance

Guidance has been published for divorcing spouses by the Scottish courts in the form of a “Guide to the Simplified Divorce/Dissolution of Civil Partnership Procedure in Scotland”. Solicitors will also find it useful.

The simplified procedure and the significance of the forms for solicitor and client

There are, as will be appreciated, quite a number of requirements to be met if divorcing spouses wish to make use of the forms for the simplified procedure, but they are not all considered here, as they will be well known. What follows is restricted to an explanation of the recent additional requirements which have to be met and which relate to the Get; and the consequences if they are not met.

If you are consulted for legal advice by a Jewish spouse who is planning to use the simplified procedure, it would be prudent to advise your client that it is stated on each of the forms that no application can be made to the court for the decree of divorce to be postponed under s 3A of the Divorce (Scotland) Act 1976 (as amended). Accordingly, if the divorcing spouses have not yet obtained their Get and intend to obtain it, it would be prudent to advise your client that if this procedure is used, and if an application is subsequently made to postpone the divorce, the simplified procedure will stop and the divorce action will be dismissed.

Explanations are provided in the application forms for the simplified procedure in the sheriff court – see Form SPA at section 11, notes on section 11 and note 3 re completing Part 2; Form SPB at section 12 and notes on section 12; and Form SPC at section 11 and notes on section 11.

Similarly, explanations are provided in the application forms for the simplified procedure in the Court of Session – see Form 49.73-A (SPA) at section 11, notes on section 11 and note 2A re completing Part 2; Form 49.73-B (SPB) at section 12 and notes on section 12; and Form 49.73C (SPC) at section 11 and notes on section 11.

It would be prudent to advise your client that the entitlement to make an application to the court for such a postponement is lost for all time if the spouses decide to proceed with the simplified procedure without first obtaining their Get. This is when all the problems mentioned in the first part of this article and in greater detail in www.gettingyourget.co.uk, an e-book about Jewish divorce, which includes articles, forms and explanations for solicitors and which has received judicial endorsement from Lady Cosgrove.

It would therefore be prudent for your client to be advised first to obtain the Get, following which the relevant form for the simplified procedure can be used in order to avoid these problems from arising at a future date.

Ordinary cause procedure

Where the ordinary cause procedure for family actions is used in the sheriff court (or its equivalent in the Court of Session), it is of course possible for a spouse to apply under s 3A of the Divorce (Scotland) Act 1976 (as amended) for the postponement. That can be done at any time prior to decree of divorce being granted. In terms of the Ordinary Cause Rules, the application for a postponement should be made by way of a formal minute in the action. There is similar provision in the Rules of the Court of Session.

The Author

Deanna Levine MA LLB NP is a dually qualified Scottish and English solicitor and consultant to Barnett, Alexander Conway Ingram, London. She is honorary secretary of the United Kingdom Association of Jewish Lawyers and Jurists and a member of the Family Law Group of the Board of Deputies. She co-authored the judicially endorsed e-book, “Getting your Get”, linked from the text.