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Digby Brown Family Law
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.
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.
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.
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.
Divorce or dissolution of a civil partnership can be a stressful and emotional experience.
We will provide help and guidance tailored to your circumstances about how you may wish to deal with the challenges ahead.
The collaborative process recognises that a painful, high conflict divorce can have long-term damaging repercussions for you, your family and wider friends.
Collaborative law steers you away from court.
A prenuptial agreement is a legal document that can protect your interests and assets before you enter into a marriage or into a civil partnership so that, in the event of a divorce, the agreement can be used to help settle any future disputes over who is entitled to what.
Moving in together can be an exciting time. As more and more couples take this step, a cohabitation agreement can be essential to protect assets and regulate who pays for what over the course of the relationship.
The legal position is often much less clear cut than divorce and strict time limits apply to bringing any claim arising from the end of a cohabiting relationship, so it is important to get legal advice at the earliest possible stage.
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