Divorce law reform – England is still playing catch up with Scotland
Getting divorced in Scotland depends on the ground that a marriage has broken down irretrievably with no prospect of reconciliation. That is taken to be evidenced by one of four situations:-
- The parties have been separated for one year and both wish a divorce;
- The parties have been separated for two years or more;
- The defending spouse’s unreasonable behaviour;
- The defending spouse has committed adultery.
Numbers 3 and 4 are known as the “fault grounds”. So, in Scotland “no fault” divorce can take place one year after a separation if both spouses wish a divorce, or two years after separation if only one does.
The situation in England is different. In England, divorce can proceed after two years, if both parties wish a divorce, after five years if only one party wishes a divorce and the other does not, or, on the same behaviour “grounds” as in Scotland, these being that the defending spouse has committed adultery, or behaved unreasonably.
Therefore, in England spouses require to wait a minimum of two years after separation prior to raising divorce proceedings on a “no fault” ground.
The difficulty with English law on divorce was thrown into sharp focus down south by the case of Owens v Owens. The wife sought a divorce due to her husband’s behaviour. However, the judge stated that the husband’s behaviour described by the wife could not be regarded, on an objective test, as “unreasonable”. The matter went to the Court of Appeal in England where the appeal was refused. Sir James Munby pointed out that the law as it stands in England simply could not allow divorce to be granted on the grounds of unreasonable behaviour, because such behaviour could not be proved; “Although many held the view that the present law was badly outdated, indeed antediluvian, it was the Court’s judicial duty to apply the law as laid down by parliament”.
At Appeal, the lawyer for the wife complained that the effect of the first judgment “is to leave the wife in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down.” Sir James Munby, in the Appeal Judgment, went on to observe that “it may be of little consolation to the wife but she is not totally without remedy under the present law. If she waits until February 2020 (2 years hence) assuming that she and her husband are still alive, she will, seemingly, be able to [proceed upon the basis that the couple had been separated for five years]”.
The case of Owens v Owens is now before the Supreme Court and the outcome of the appeal is eagerly awaited by family lawyers in England.
In England the case of Owens v Owens has created a brisk debate about the requirement for an easily accessible “no fault” divorce to reflect the wishes of society and the changes that were made to the law on divorce in Scotland almost 12 years ago now.
As recently as 1 January 2018 in an article in the Times newspaper, a former English High Court judge, Sir Paul Coleridge stated that the laws of divorce in England are out of date, not having been updated for 50 years. He further comments that such laws “urgently” require reform as they are a “real disincentive to couples making permanent, legally binding commitments to one another”. He, and a number of other very senior English judges seek a reform of the law on these points.
We offer an initial consultation with one of our expert family solicitors for a fixed fee of £250 plus VAT. During that meeting we will provide you with advice on your situation and your options going forward.