A recent English case, which attracted headlines across the media, has highlighted once again the differences in Scottish and English law in relation to divorce. These differences are significant, and in practice make it possible to be divorced sooner in Scotland than in England and Wales.
The case of Tini Owens
Tini Owens, 66, issued a divorce petition in England & Wales on the basis of her husband's unreasonable behaviour. However, last year the Family Court refused to grant the petition on the basis her allegations were "of the kind to be expected in marriage".
Mrs Owens then appealed to the Court of Appeal to try to overturn the decision. Last week, the Court of Appeal refused to overturn the decision. So, Mrs Owens has been unable to divorce her husband of 40 years, despite her clear wish to do so. The court held that Mrs Owens had not succeeded in showing that the marriage had irretrievably broken down.
Mrs Owens tried to divorce based on her husband's unreasonable behaviour. However, the court held that she had not set out enough to justify a divorce on that basis. The judge in the appeal court decision stated that "parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be".
The definition of unreasonable behaviour for the purposes of divorce is that your spouse has behaved in such a way that you cannot reasonably be expected to live with them. Mrs Owens has incurred significant legal fees in her battle to be divorced and has also been found liable for her husband's costs, because she has been unsuccessful.
The grounds for divorce
In both Scotland and England & Wales, there is only one basic ground for divorce, namely that the marriage has broken down irretrievably. Irretrievable breakdown can be established in different ways. In both Scotland and in England adultery and unreasonable behaviour are two of the ways to establish irretrievable breakdown. England has a further way, which was abolished in Scotland, known as desertion. This is where one spouse argues that the other has deserted him or her without consent for a continuous period of at least two years.
The final two ways are based on the period of separation. In England & Wales, it is possible to present a divorce petition on the basis that you and your spouse have been living apart for at least two years. However, both spouses must agree to the divorce. If consent is not forthcoming, and adultery or unreasonable behaviour cannot be used, parties must live apart for at least five years. If that can be shown, then the other spouse does not need consent to the divorce.
This is the unfortunate position in which Mrs Owens has found herself, and why she will need to wait a while longer before securing her divorce.
The differences between the law for divorce in Scotland and England
In Scotland, it is possible to apply for divorce due to irretrievable breakdown within the first year of marriage. In England & Wales you must have been married for at least one year.
In Scotland, the periods for divorce based on the period of separation also used to be two years with consent and five years without consent. However, following a change to the law in 2006, it is now possible to divorce after one year of living apart, provided the other spouse consents. If the other spouse does not consent, then the application can be made after two years of living apart, and consent is not the required.
So, it is possible to be divorced sooner in Scotland than in England & Wales. Financial and childcare arrangements would still require to be sorted out as part of the overall divorce process.
In Scotland, unlike in England & Wales, the court does not have to rubber-stamp formal agreements (known in Scotland as Minutes of Agreement or Separation Agreements) entered into by the parties and resolving the issues arising from their separation. In Scotland a simplified divorce procedure can be used where the financial issues have been resolved, there are no children under the age of 16 and either of the separation grounds applies. The simplified process is straightforward and inexpensive.
So, as you can see, there are a number of important differences in the divorce process north and south of the Border.
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The small print: This blog is for information purposes only and should not be construed in any way as providing legal advice.