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Digby Brown Family Law

Wife refused divorce by courts – what this means for others

28 March 2017 by Roger MacKenzie, Head of Family Law

 

The well-publicised case of Tini Owens, the wife who was refused a divorce because it was insufficient to say she was trapped in loveless and unhappy marriage, is a reminder that the granting of divorce is not automatic and the grounds for it still have to be proved.

 

The case has led to call for reform of the law in England to introduce no fault divorce, with the fear that the decision in the Owens case will only lead to more divorce cases where spouses have to cite examples of unreasonable behaviour.

Grounds for divorce in Scotland

In Scotland, other than recognised gender change of either party to the marriage, the only ground of divorce is irretrievable breakdown of marriage which must be established in one of four ways.

 

These are:

  1. adultery of the other spouse
  2. behaviour (usually referred to as unreasonable behaviour)
  3. non-cohabitation for a period of one year if the other party to the marriage consents to the divorce,
  4. non-cohabitation for a minimum of two years.

 

In the case of dissolution of civil partnership, the irretrievable breakdown needs to be established in the same ways, though adultery is excluded as the definition of adultery remains confined to relationships between people of the opposite sex.

Contested divorce cases in Scotland

In practice, in most cases the divorce will be uncontested and will proceed on the grounds of either one year or two years’ non-cohabitation.

 

However, in some instances it is necessary to raise divorce proceedings at an early stage after separation, and in those instances it will be necessary to be able to prove the adultery or unreasonable behaviour.

 

Whether the behaviour can be classed as unreasonable is determined in the context of the parties to that particular marriage.

 

Relationships must have come to an end

Some examples, such as alcohol abuse, physical violence or emotional abuse may be obvious. However, a link must always be made between these behaviours and the end of the relationship, which means problems can occur if the couple continued to live together in the relationship in spite of this behaviour from a spouse.

 

Proved by independence source

The behaviour leading to the breakdown of the marriage also needs to be proved by an independent source and this can cause issues where it has all occurred behind closed doors.

 

In most cases, finalising the divorce itself is straightforward and it is the process of arriving at arrangements in relation to children and finances which demands careful consideration.

 

However, the Owens case reminds us that care needs to be taken when the grounds of divorce are contested to ensure there is enough evidence before a court to clearly show the marriage has broken down for the reasons stated.

 

OUR SERVICES

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We will provide help and guidance tailored to your circumstances about how you may wish to deal with the challenges ahead.

 

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