Protecting Privacy in Divorce Actions: Article 8 and the Need for Law Reform

Abstract

This article makes the case for reform of divorce law by demonstrating that the current provisions in the Divorce (Scotland) Act 1976 are not compliant with Article 8 ECHR. Scots law's mix of fault and no fault provisions requires the mandatory disclosure of often highly personal and intimate details in order to establish adultery, behaviour, or non-cohabitation. This statutory requirement to disclose private and personal information to the state, to fulfil the test for irretrievable breakdown of the marriage, constitutes an invasion of the spouses’ privacy. The article then goes on to show that such invasion cannot be justified as necessary in a democratic society, in terms of Article 8 jurisprudence. Consequently, reform is required to ensure that Scots divorce law is ECHR compliant. The final section sets out a proposal to transform divorce law in Scotland into a no-fault notification procedure, removing the damaging and invasive process currently in force.