Behaviour-based divorces still merit close consideration

Some recent cases illustrate the evidential and procedural issues involved in dealing with proofs on the merits of divorce which are worth considering even though most cases may conclude on a non-cohabitation ground.

YI v AAW [2020] CSOH 76 (8 July 2020) was the first Court of Session family proof to take place by videoconference. Both parties resided in Dubai; the defender had raised proceedings there after the pursuer had raised in the Court of Session. The parties agreed that the marriage had irretrievably broken down; however their behaviour during the marriage and the reason for their separation were disputed.

Lady Wise considered a number of evidential issues. First since only the parties knew what went on between each other their evidence required “the most careful scrutiny” (para 32). She did not accept that videoconferencing made assessing credibility and reliability particularly difficult. Her “vision and ability to hear the witnesses was clear and unimpeded” (para 44) and she had been able to observe body language just as she would in the physical courtroom. It is helpful to have such a clear view given the ongoing debate about the...