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Recent publicity around the Supreme Court’s refusal to grant a divorce to a woman, who claimed to be ‘trapped in a loveless marriage’ to her husband of 40 years, has highlighted the differences in divorce law in England and Wales, compared with Scotland.                                                                                                                                                                                                                     

Mrs Owens petitioned the Central Family Court in London for divorce on the basis that her husband Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. Her petition was refused, and her appeal to the Supreme Court was dismissed.

The law in England and Wales requires the petitioning party to evidence their marriage has broken down irretrievably. The court must be satisfied that one of five defined circumstances exist to evidence that. Two such circumstances are that the parties have lived apart for two years and the respondent consents to the divorce, or five years without such consent.  Whilst it was recognised that the Owens’ marriage did appear to be over, Mrs Owens failed to prove Mr Owens’ alleged behaviour.  The parties separated in 2015.  Mrs Owens will now have to wait until 2020 before she can go on to seek a divorce. 

Whilst many are now voicing enthusiasm for the reform of the divorce law, with a view to bringing it into line with other jurisdictions, such as Scotland, the controversial ruling will no doubt have raised questions around finances and procedures for those looking to break ties with a spouse. 

Had a Scottish court been presented with Mrs Owens’ case, it is very unlikely that she would have found herself in the position of remaining married to Mr Owens. That’s because a different system for divorce exists in Scotland.  Under the Divorce (Scotland) Act 1976, a party will still have to establish the marriage has broken down irretrievably but the time periods for separation are much shorter than that of England and Wales, namely two years without the consent of the defender, or one year with consent.  In addition, a divorce could be obtained if it can be proved the defender has committed adultery or their behaviour is such that the pursuer cannot reasonably be expected to live with them, which is similar to England and Wales. However, it is clear that the “no-fault” grounds are patently more accessible.

Of note is that, before a court in Scotland would grant a divorce, it requires to be satisfied that appropriate arrangements for any children have been made and that financial matters have been resolved.  The court can be asked to make various orders regarding these matters in terms of separate family law legislation. 

As far as financial provision goes in Scotland, both parties are entitled to a fair share of the matrimonial property.  This is generally presumed to be an equal share unless there are special circumstances to justify a deviation.  Matrimonial property comprises any asset or interest acquired during the marriage whether by the parties individually or jointly, with some exceptions, and the majority of the matrimonial property is valued as at the parties’ date of separation.  

The regime of financial provision applies irrespective of whether an application is made for divorce with reliance on the “no-fault” grounds or otherwise.  Parties can however agree to contract out of the legislative framework in Scotland and pre-nuptial/post-nuptial agreements are becoming more popular with those wishing to document exactly what should happen financially in the event of a future separation. Those looking for advice on this should speak to a family lawyer.

Times have changed and it is clear that family law in Scotland has kept up with the pace, leading us to speculate on the increasing pressure from those looking for reform within the English and Welsh system.  The case of Owens may well lead the charge.

Michelle Fearn, Associate

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