A recent case in the Supreme Court has caused much discussion on the rules surrounding when a spouse can apply for divorce. Mrs Owens, who lives in England, wanted to be divorced from her husband as she was unhappy in the marriage and considered his behaviour towards her to be unreasonable.
Under the current law in England and Wales, unless people can prove their marriage has broken down due to adultery, unreasonable behaviour or desertion, the only way to obtain a divorce without a spouse's consent is to live apart for five years.
The Supreme Court ultimately decided that Mr Owens behaviour was not so unreasonable that his wife could not be expected to continue to live with him. This left her in a very difficult position of waiting for five years to be divorced. Understandably, this case has led to much discussion about the concept of "no-fault" divorce and the timescales which apply in England.
The timescales for divorce in Scotland
There is often confusion about the timescales which apply in Scotland and how long, in fact, spouses who want to divorce need to wait before they can ask the court to grant a divorce. While the basis on which the court can divorce couples is broadly similar to those in England and Wales, the timescales in Scotland are different.
In Scotland the law in respect of time before a divorce can be granted is contained within the Divorce (Scotland) Act 1976.
The only basis upon which a divorce can be pronounced is on the basis that the marriage has broken down 'irretrievably'. The irretrievable breakdown of a marriage can be established by one of the following facts:
- (a) One spouse has committed adultery;
- (b) If since the date of the marriage a spouse has at any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender;
- (c) If the couple have not lived together as husband and wife for a period above one year and the other spouse consents; or
- (d) If the couple have not lived together as husband and wife for a period above two years (no consent is required from the other spouse)
A pre-requisite of being formally divorced in Scotland is that the financial matters arising from the separation are resolved (by agreement or by court order) and that if there are children of the marriage under the age of 16 years the arrangements for their care and upbringing are resolved (again, either by agreement or court order).
If the Court does need to become involved in determining financial matters or matters involving children the divorce will not be granted until those matters are resolved but the case can be raised using points a, b, c or d.
'Fault' grounds for divorce
Points (a) and (b) are grounds where the 'fault' of a spouse has to be proven.
In practice in Scotland, these 'fault' grounds are often only used if there is an urgency to have a court become involved in considering matters. This can be because the unreasonable behaviour/ adulterous relationship is having such a negative impact on the spouse that divorce is required quickly or because urgent decisions need to be made about finances or children by a court.
A divorce based on adultery requires proof of the adultery. Sometimes this can be established by statements from the spouse and their new partner if they are willing to provide them but it can be very difficult to establish without such co-operation.
Unreasonable behaviour is something that will depend on the particular facts and circumstances of a couple and the events which have transpired but it is important to be careful before proceeding on this ground – as with Mrs Owens, if the court finds that the behaviour is not so unreasonable that the spouses could not reasonably be expected to live with one another, then a lot of time, effort and cost can be expended without divorce being granted.
'No fault' grounds for divorce
Points (c) and (d) could be considered 'no-fault' grounds. They are only based on how long the spouses have been separated. Separation effectively means that a couple is no longer living together as husband and wife. Sometimes couples will have to still live under the same roof but as long as the relationship as a married couple has come to an end and that can be established then that will be the date on which the time-based grounds start being calculated.
In a best-case scenario, couples will be able to agree on matters regarding finances and (if applicable) arrangements for their children under 16 and can then proceed to divorce after one year with consent.
It is important, however, to remember that there are other routes to divorce if they are needed and that in Scotland, the longest time you will have to wait before being able to raise proceedings for divorce is two years, rather than the five years faced by Mrs Owens in England.
What is the best course of action for Divorce?
The best advice in a separated situation is to think carefully about trying where possible to agree on financial matters and matters involving the welfare of children so that after a year has passed the court can grant a divorce with consent.
We understand that this is not always possible and our team of family law specialists will work with you to advise on the quickest, most cost-effective way to deal with the matters arising from separation so that you can be divorced with an outcome that works for you and your family.
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