Making someone stay in an unhappy marriage smacks of old mores

Following hot on the heels of a decision by the English courts to award a woman who lost the bulk of her divorce settlement by making poor financial decisions, larger monthly payments from her long-suffering ex-husband years after their divorce, came another headline: 'Woman appeals against divorce refusal.'

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A family court in England refused to allow Mrs Owens, a woman of 66, to divorce her husband. It appears that the court heard evidence that the marriage had broken down in the context of controlling and deeply unpleasant behaviour on the part of her husband, but in the face of her husband’s objection, and on the basis of his claim they had “a few years” left to enjoy, the court ruled against divorce.

One of the family court judges concluded that the woman’s allegations were “of the kind to be expected in marriage”!

The couple have slept in separate rooms for years, what’s left of their relationship can only be described as toxic, and the woman is so determined to divorce that she is prepared to incur the not insignificant financial and emotional cost of referring the matter to the English appeal court.

Far from seeking to encourage actions for divorce based on spurious grounds, we have to question a court’s insistence that a person should be forced to remain living in deeply distressing domestic conditions.

In Scotland, we require to consider whether or not the marriage has irretrievably broken down. 
Irretrievable breakdown is generally established by one of the following:
n the other party’s adultery;
n the parties’ separation for a period of one year and the other party’s consent to divorce;
n the parties have been separated for a period of two years for which the other’s consent to divorce is not required;
n that a party’s unreasonable behaviour is such that the other party cannot reasonably be expected to cohabit with the other.

In England, the one and two year periods are replaced by two and five years, which in Scotland would have been the case in any divorce action raised prior to 4 May 2006.

That might, of course, be the crux of the difficulty for poor Mrs Owens, who simply cannot contend being married to her husband for the full five-year period.

As such, an action for divorce raised on the basis of unreasonable behaviour is an entirely subjective test, particular to the circumstances of the case. What might be considered unreasonable behaviour in one marriage might not be unreasonable in another, but that is catered for in the legislation.

To insist that a person remain in a deeply unhappy marriage when, as in this case, the extent of their misery has been outlined in excruciating detail to a court, and to force Mrs Owens to litigate the matter in a higher court, is in our respectful view a somewhat sinister return to a time when divorce was 
somehow shameful and not 
accepted in society. This woman, and indeed any party to a miserable marriage who, on a human level, will suffer untold damage, should, we would suggest, be given the very small courtesy of the courts to be allowed to live a life of their choosing – apart from their erstwhile spouse.

Lindsey Ogilvie is a senior associate with Turcan Connell