This week, the Supreme Court has refused to allow Mrs Owens to divorce her husband on the basis that she was unhappy in her marriage. Despite giving numerous reasons as to why she was unhappy in the marriage, the court was unable to grant her a divorce. The only ground for divorce in England and Wales is that the marriage has broken down - due to either adultery, unreasonable behaviour, desertion or separation. Separation has to be for at least two years if the other spouse gives consent, otherwise the separation has to be for more than 5 years. In this case, Mr Owens refused to give his consent and they had only been separated since 2015. The Supreme Court told Mrs Owens that she would have to wait until 2020 before being entitled to get a divorce.
The law in England and Wales reflects the position that used to be in Scotland. Fortunately the law in Scotland has now moved on. The Family Law (Scotland) Act 2006 brought in changes to the grounds of divorce. While it is still possible to apply for a divorce on the grounds of your spouse’s unreasonable behaviour or adultery, you can now apply for a divorce after you have been separated for one year, if your spouse consents. If your spouse does not consent then you only need to wait until you have been separated for two years.
The Supreme Court noted that the law in England and Wales is perhaps not as progressive as it could be and did have considerably sympathy with Mrs Owens, however they were bound to follow the law. It is a matter for the government to seek to amend the law.
Divorce on the ground of separation is often referred to as a “no-fault” divorce, as one party does not need to prove that the other party is to blame for the separation. In Scotland, 94% of divorcing couples rely on no-fault based grounds of divorce. In England and Wales, it is only 40%, which perhaps reflects that fact that people cannot wait 5 years before seeking a divorce. Divorce on fault-based grounds can speed matters up, but is also likely to make matters more acrimonious which can be difficult in the long term, especially where there children involved.
It remains in the hands of the government to change the legislation to shorten the separation periods in England and Wales, but when or if that will take place, remains to be seen.
In Scotland we don’t have to wait 5 years, and divorce can be applied for once parties have been apart for one year, if both consent, or two years without consent. A divorce can also be applied for earlier than that if a party is relying on the grounds of adultery or unreasonable behaviour. Different procedures apply if there are outstanding financial matters to sort out or if there are issues of contact and residence to sort out in respect of children of the marriage.
Elaine Sym is a Legal Director in our specialist Family Law Team in Angus. If you are considering a separation or divorce, or need advice on any other family related issues, please contact Elaine on 03330 430150 or alternatively contact any member of our Family Law team.
