The comparative ease of obtaining divorce in Scotland reflects a disparity in cultures North and South of the border; Scotland is more ‘liberal’, placing greater emphasis on personal freedom, while England is more ‘conservative’, placing greater emphasis on the preservation of marriages. ‘Irretrievable breakdown of marriage’ is the UK-wide ground for divorce. However, the means of establishing this are starkly divergent. Here is how Scotland compares with England & Wales:
SCOTLAND:-
- 1 or more years continuous separation with consent of both parties;
- 2 or more years continuous separation where no consent;
- Adultery, or;
- Unreasonable behaviour on part of Defender.
ENGLAND & WALES:-
- 2 or more years continuous separation with consent of both parties;
- 5 or more years continuous separation where no consent;
- Adultery (and that the Pursuer finds it ‘intolerable’ to live with the Defender);
- Unreasonable behaviour, or;
- Desertion by the Defending party for a continuous period of 2 or more years.
The ongoing English Court of Appeal case of Tini Owens v Hugh Owens puts the spotlight on divorce, and raises new questions on the role of marriage in modern life. In brief, the family court concluded that Mrs Owen’s allegations of emotional absence and mistreatment by her husband were ‘of the kind to be expected in marriage’. Mrs Owens’ claims to be ‘desperately unhappy’ but Mr Owens claims that the marriage still has a ‘few years’. As Judge Munby observed however, ‘It is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be.’
Striking questions surface: should Mrs Owens be forced to remain married against her will? Should she be required to satisfy a court’s standard of her marital contentedness (or lack thereof)? Should legal rules trump individual freedom? Are current rules archaic legal formalities? One thing is clear: marriage is now subject to the spotlight of political theatre. And for those seeking divorce – good lawyers are a must!
If you are desperately unhappy and would like to discuss divorce, please feel free to contact McCarthy Law on 0141 337 6678, or via e-mail: enquiries@mccarthylaw.co.uk