Unreasonable behaviour

On 17 May, all eyes will be on the Supreme Court in London as Tini Owens attempts to persuade the UK’s most senior judges to allow her to divorce her husband.

Mrs Owens’ case is somewhat unusual.  Divorce cases are often litigated where there are fundamental matters in dispute, such as an argument about which is the appropriate jurisdiction, or more usually financial provision.  The current issue for Mrs Owens is that her case is one of the estimated 1% of divorce cases in England and Wales where the petitioner’s basis for divorce is itself contested.

Mrs Owens and her husband separated more than two, but less than five, years ago.   In England and Wales the time based grounds for divorce are either that the parties have been separated for two years and the other party consents, or that the parties have been separated for five years.   Therefore, if the other party is not prepared to consent, the choices are either to wait five years, or to seek a divorce on the grounds of unreasonable behaviour, which is exactly the situation in which Mrs Owens found herself.

The unreasonable behaviour cited by Mrs Owens included her husband criticising her in front of the housekeeper, making her pick up bits of cardboard in the garden, a row in an airport shop after a holiday, a silent meal in a local pub and unpleasant remarks made during a meal with a friend.   The Judge at first instance refused to grant the divorce petition saying that these were “minor altercations of the kind to be expected in a marriage” and the case was “an exercise in scraping the barrel.”

Mrs Owens took the case to the Court of Appeal, who refused to overturn the original decision.   Mrs Owens then appealed to the Supreme Court, and on 17 May the Supreme Court will now require to review the case and make a ruling.

The case has caused a great deal of uproar amongst family law professionals in England and Wales, who cite Mrs Owens’ predicament as further supporting the need for no-fault divorce in England and Wales, and questioning the appropriateness of the Supreme Court being asked to determine whether or not an individual should be entitled to be divorced from their husband.

For us looking on in Scotland, it is difficult to see how such an issue would be likely to develop in this way in our jurisdiction.   Like England and Wales, unreasonable behaviour is one of the ways in which irretrievable breakdown of the marriage can be established in Scotland and similarly it is highly unusual for an action to be defended “on the merits” such that the defender seeks to argue that the pursuer should not be entitled to be divorced.   We do see it from time to time in practice, but frankly (and perhaps because unlike in England and Wales, financial provision must be resolved either before or at the same time as decree of divorce is granted) the resolution of the financial and other issues arising from the separation tends to be the primary focus, and in my experience the judiciary in Scotland are not keen to see “dirty laundry” being aired unnecessarily where it is clear that a marriage has broken down.  Of course, it would be incorrect to presuppose that there is no judge in Scotland who would have refused Mrs Owens a divorce, but even if they had it may well have been much less of an issue for Mrs Owens in this jurisdiction.

Another reason why this is less of an issue in Scotland is the relevant time periods for establishing that the marriage has broken down irretrievably.  Since 2006, in Scotland it has been possible to divorce one year after separation if the other party consents, or two years after separation even if the other party does not consent.   This means that the maximum period any person will have to wait after separation to seek a divorce from the Court is two years.   It is easy to see that waiting for two years is a very different proposition than waiting five – if Mrs Owens had been living in Scotland, she would long ago have passed the relevant threshold.

In my view, there is a clear benefit and few downsides to our shorter time periods.   Disregard for the sanctity of marriage is often advanced in opposition of shorter timescales, but it is hard to see how, if a couple have been separated for two years with no intention or attempt at a reconciliation, there is any realistic prospect of the marriage being saved.  Those who support Mrs Owens would no doubt argue that the legal framework as it presently stands disregards her right not to stay in a marriage with a man that she no longer loves or wishes to be married to.  Arguably, that shows even more disrespect for the sanctity of an institution that should be presumably anchored in mutual love, commitment and respect.

Understandably the proposition that Mrs Owens might be forced by the Supreme Court to remain trapped married to a man she no longer wishes to be married to is causing controversy.  That said, the Supreme Court will have an interesting challenge on their hands on 17 May.  Even if they want to help Mrs Owens, there are always limited grounds upon which the decisions of a lower Court can be overturned. It will be interesting to see if the Supreme Court have the means and indeed the will, to do so.   Watch this space…

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.