The first topic of discussion is divorce with reference to the BBC drama series, A Very British Scandal, which is based on the renowned case of the Duke of Argyll v Duchess of Argyll 1962 SC (HL) 88.
Fault based divorce
Throughout the three-part drama, we see the journey of the marriage of the Duke and Duchess of Argyll from the start to its eventual end. They were married in 1951 and divorced in 1963. Their divorce was widely reported in the media and, at the time, rocked the Nation.
The Duke of Argyll alleged that the Duchess of Argyll had intimate relations with over 80 men during their marriage, and sought to rely on the Duchess’ adulterous behaviour as the ground for divorce. The Duchess countered that the Duke had also behaved in a similar manner and so their marriage was an open one. However, this was deemed to be irrelevant by the Court. The Court focused solely on the behaviour of the Duchess. The Duchess was a woman and it was apparent that the Court did not consider her to have behaved in an acceptable manner. The Duchess’ affairs were entirely the focus of the case despite the fact that her husband partook in similar behaviours.
The Court failed to take into account the financial contributions that the Duchess had made throughout their marriage. The Duke had no cash when the parties were married. The Duchess funded his lavish lifestyle and completely refurbished the castle he had inherited. The Duchess asked the Court to grant her a financial award in recognition of her financial contributions. The Court refused to grant a financial award. The Court deemed the Duchess’ behaviour to be so abhorrent and appalling that it did not consider her worthy of receiving any form of financial settlement. The Court, in delivering its judgment orally, was extremely critical of the Duchess. The Duchess walked away with nothing, other than shame and a sullied reputation.
It is unlikely that this outcome would occur in present times, as in terms of the Family Law (Scotland) Act 1985, conduct, including adultery, is not to be taken account of by the Court when ordering financial provision, unless the conduct has adversely affected financial resources, and the Court is directed to have regard to economic disadvantages suffered by either party.
How have things changed?
There is one ground for divorce in Scotland; that the marriage has broken down irretrievably. This can be established in four ways: (1) adultery; (2) unreasonable behaviour; (3) the fact that a couple have been separated for a period in excess of one year and both parties consent to divorce; and (4) the fact that a couple have been separated for a period in excess of two years.
If the Duke and Duchess of Argyll were to separate and divorce today, the Duchess would be able to rely upon the Family Law (Scotland) Act 1985. The introduction of this Act was ground-breaking for separation/divorce cases, with the overarching principle being one of fairness. It is provided in the legislation that the Court should share the net value of matrimonial property fairly and there are various principles and special circumstance arguments to be taken into consideration by the Court when making financial orders on divorce.
It would be argued on behalf of the Duchess today that the Court should recognise the financial contributions that she made throughout the parties’ marriage and the matter would have been dealt with fairly. In 1963, the Court did not recognise the efforts and contributions made by the Duchess and instead labelled her as a “wholly immoral” woman, clearly deserving of nothing.