Ewan Campbell: Down south, divorce can be difficult

How easy is it to get a divorce? Not very easy in England, it would seem, following the now well-known case of Tini Owens v Hugh Owens, which has attracted considerable media attention.

Ewan M Campbell is an Associate and Accredited Specialist in Family Law at Russel + Aitken LLP

Mrs Owens wished to divorce her husband on the grounds that she was unhappy. She alleged that her marriage had broken down irretrievably as her husband had behaved in such a way that she could not reasonably be expected to live with him. However, her husband refused to accept this and the Family Court refused to grant a divorce to her on the basis that her allegations were ‘of the kind to be expected in marriage’.

An appeal (to the Court of Appeal) refused to overturn the decision of the Family Court.

Faced with the prospect of having to wait until 2020 (five years from the date of the parties’ separation) Mrs Owens requested that the Supreme Court overturn the earlier decision. However, in July of this year, the Supreme Court unanimously rejected her appeal, meaning she will have to remain married until 2020. It was reported that Mrs Owens was devastated by the decision as it meant she could not ‘move forward with her life’.

Thousands of couples 'exaggerate marriage faults to get divorce'

Following the ruling, the Ministry of Justice said: “The current system of divorce (in England) creates unnecessary antagonism in an already difficult situation. We are already looking closely at possible reforms to the system.”

Nigel Shepherd, a former chair of Resolution, said: “In this day and age, it is outrageous that Mrs Owens – or anybody – is forced to remain trapped in a marriage, despite every judge involved in the case acknowledging it has come to end in all but name. It should not be for any husband or wife to ‘prove’ blame as the law requires to do. This is archaic, creates needless conflict, and has to change.”

At present, in England, unless it can be proved that a marriage has broken down irretrievably due to unreasonable behavior, adultery or desertion, the only way to obtain a divorce without a spouse’s consent is to live apart for five years (two years with a spouse’s consent).

The good news is that Scotland’s divorce law is more progressive. In Scotland divorce law was reformed by the Family Law (Scotland) Act 2006 which, recognising that divorce was taking too long, reduced the separation periods for divorce without consent from five years to two years and from two years to one year with consent. It also abolished the ground of ‘desertion’ which up until 2006 was one of the five means of establishing irretrievable breakdown set out in the 1976 Divorce (Scotland) Act.

In Scotland the irretrievable breakdown of the marriage is established in one of four ways: adultery of the other spouse; the other spouse’s ‘unreasonable behaviour’; one year’s separation if the other spouse consents to the divorce; or two year’s separation if the other spouse does not consent.

In Scotland, it is possible to apply for divorce due to irretrievable breakdown within the first year of marriage. In England & Wales parties must have been married for at least one year.

Further, in Scotland, the courts do not have to rubber stamp any formal separation agreements entered into between the parties. In addition, in Scotland, a simplified divorce procedure can be used where financial issues have been resolved, there are no children under 16 years, and either of the periods of separation grounds applies. Obviously, the benefits of the simplified procedure are that it is straightforward and inexpensive.

Of course, some might argue that by making couple wait provides an appropriate period of reflection out of which might come a chance of reconciliation, but it would seem that once parties have decided to separate, property and financial matters have been discussed, and arrangements for children have been agreed, it is most unlikely that a reconciliation will then occur.

The Owens case is likely to provide the motivation needed in England & Wales to enact a no fault divorce system and to introduce reduced periods of separation.

Baroness Shackleton, a leading divorce QC in London, agrees: “If all these experts concur, surely there’s no need for another commission to investigate how to change our divorce laws, we should simply bring them into line with Scotland.”

Ewan M Campbell is an associate and accredited specialist in Family Law at Russel + Aitken LLP