The recent highly publicised English appeal case of Owens v Owens has created a media frenzy. Mrs Owens remains trapped in a loveless marriage and how awful of the judge for not granting a divorce.
As ever, there is more to it than meets the eye. As an English case, it demonstrates a significant difference in how we approach divorce in Scotland.
“The irretrievable breakdown of marriage”
Before a court can consider granting decree of divorce, it has to be satisfied that the marriage has irretrievably broken down. The irretrievable breakdown of marriage is the sole ground for divorce. One basis upon which it can be established is the unreasonable behaviour of a spouse such that it is no longer reasonable to expect the other spouse to continue to live with him or her.
For Mrs Owens she described 27 instances of what she considered to be her husband’s unreasonable behaviour towards her to prove that her marriage had irretrievably broken down. This included her husband berating her in public and embarrassing her or prioritising work over family life. Mr Owens defended the action and successfully explained away his behaviour. The judge could not, in the face of the law he was expected to apply, treat this behaviour as so unreasonable that she could not be expected to continue to live with her husband.
The judge did what he had to do in the face of the applicable law. He considered he had no choice in light of the evidence he heard and the Court of Appeal agreed with him. There is a very real sense of frustration from him, as referred to in the Appeal Court judgment, that his hands are tied and he describes the current state of the law as antediluvian. It is so out of date in these modern times and so out of step with the huge advances made in other areas of family law reform, that it lives in Biblical times.
No fault principle
The judgement is critical of the state of English divorce law as it does not operate on a “no fault basis”. For any family lawyer in Scotland, relying on unreasonable behaviour to prove that a marriage has irretrievably broken down is a last resort. We are also loathed to rely on spouse’s adultery which is the other “fault” basis. The Family Law (Scotland) Act 2006 radically changed our approach to divorce law and effectively formalised the “no fault principle”. In Scotland if parties have lived apart for one year or more then a divorce can be sought if the other party provides formal consent. If no consent is forthcoming then the divorce can be sought on the basis of two years non cohabitation. The radical change was to reduce the periods of non cohabitation - two to one and five to two. English law is still saddled with these lengthy periods of non cohabitation.
There is no doubt that this change has made a significant difference to how parties and solicitors approach the ending of the marriage. There is no mileage in making someone wait for that divorce. If a spouse is unwilling to consent, it is just another year, 365 days to go before it does not matter. In England it is another 3 years, 1095 days. Imagine the bitterness and impact this has.
Generally only out of necessity, usually because there is another pressing urgent issue will there be reliance on “fault grounds”. We as family lawyers steer clear of such bases if at all possible . Our job is not to make people relive their pasts but to move on hopefully with dignity and respect for the other half. We are assisted by our law because it specifically provides for “no fault”.
The judgement here takes a swipe at how decent English family lawyers and their clients are backed into corners forced to use fault grounds, perhaps on the flimsiest of evidence of unreasonable behaviour because the majority of actions are undefended. This is undignified for all concerned. The media frenzy will have been worth it if it highlights the critical need for English family law reform and it is subsequently changed.
Who Pays For This?
This debacle was privately funded. Mr Owens could afford to defend the action and chose to do so. Legal aid would not have been available in Scotland. It is not available to defend a divorce action to challenge why a marriage broke down. Of course the ending of a marriage is a difficult and emotional time for both parties. Feeling slighted and wanting to say your piece and defend yourself are all understandable emotions but not ones to be encouraged. If a marriage has irretrievably broken down - no matter the basis on which that can be proved - it is cheaper and more dignified to accept that outcome than resist for resistance sake.
Angela Wipat is a Legal Director in our specialist Family Law team in Perth. If you are looking for advice in relation separation and divorce, please contact Angela on 01738 621212 or alternatively contact any member of our Family Law team.