This article originally appeared in the Sunday Herald on Sunday 19th August 2018.

Family law teams across Scotland have paid great attention to the Supreme Court’s decision not to grant Tini Owens’s application under English law to divorce her husband.

As Lindsey Ogilvie, a Partner in Turcan Connell’s family law team notes, had the appeal been granted, it would have gone a long way to mitigating the effect of one of the major differences between the divorce laws of England and Scotland.

The case may still prompt legislators in England to consider whether moving closer to Scottish practice would be beneficial for English divorce law.

Tini Owens had been living apart from her husband since February 2015 when she made the application – more than enough time for a contested divorce in Scotland, where the requirement is simply for the couple to have been living apart for two full years. Where both spouses agree to the divorce the requirement is for a year’s separation. English law demands five years separation for a contested divorce.

However, Tini Owens was basing her application on section 1(2)(b) of the English Matrimonial Causes Act 1973, which allows a party to obtain a divorce upon the irretrievable breakdown of the marriage, on the basis that their spouse has behaved so badly that it is not reasonable to expect the applicant to continue to live with their spouse.

This did not work out well for her. Ogilvie points out that Owens’s legal advisors had followed established practice in presenting a fairly bland sample of the husband’s “unreasonable behaviour”, citing mood swings, prioritising work over home life and so on. In October 2015, after a directions hearing, Mrs Owens added to the list, citing 27 additional allegations of unreasonable behaviour.

However, taken individually and together, they all tended to sound to the judge like the kind of altercations that take place in marriages generally and were not Earth-shattering enough to cause them to come down in her favour and decide that she could not reasonably be expected to continue to live with Mr Owens.

What is of general interest, however, is that the Supreme Court judges made it clear that though their hands were tied, in that the legislation is what it is, the five-year term was something that legislators should take another look at, as well as perhaps looking at the implications of the “unreasonable behaviour” provisions.

As Ogilvie explains, one cannot blame Mrs Owens legal advisors for not really going to town and filling in all the gritty details behind Mrs Owens’ allegations of unreasonable behaviour.

“Lawyers generally take the view that it is best not to exacerbate tensions between divorcing couples with graphic accounts of unreasonable behaviour. These are always presented fairly blandly in the interests of reaching a mutually agreed outcome. The striking fact for lawyers here in Scotland is that Mrs Owens had already been separated for a longer period than the two years required by Scottish law and there would have been no need for a Supreme Court judgment had the parties resided here,” she comments.

In Scotland, Ogilvie points out, the emphasis is always on encouraging clients to negotiate an agreement, particularly where their financial assets are concerned and where there are children to be considered. “What we work towards here is what is called a ‘Minute of Agreement’. This records the division of capital, the payment of any agreed ongoing support pre- and post-divorce, child maintenance, and any arrangement in respect of children,” she explains.

The Minute records the fact that the terms of the agreement are in full and final settlement of all future claims, and is enforceable by the courts. Once agreed the Minute can rarely be challenged and the couples are financially separated for all time, leaving them free to divorce without the need to go to court.

“The court will still need to be satisfied that the care arrangements for any children under the age of 16 have been clearly set out and agreed, but that can be done via affidavits. Where there are no children in the marriage the parties can apply for divorce via a simplified procedure that is largely a formfilling process and the divorce can be granted within weeks, depending on the backlog in the Sheriff’s office,” Ogilvie comments.

The position for same sex couples is very similar. The Civil Partnership Act 2004, which was a UK statute, was a breakthrough for same sex couples in that it gave them a legal relationship. However, as Ogilvie notes, it was not entirely the same as a marriage in the eyes of the law, and was further developed and enhanced in the Married and Civil Partnership (Scotland) Act 2014. This allows same sex couples to marry or to convert a civil partnership into a marriage.

“Interestingly, there is now a case being considered in England where a heterosexual couple are arguing that they want to be able to enter into a civil partnership, and that it is discriminatory that the law does not allow this. It remains to be seen how this case turns out,” Ogilvie adds.

The position for unmarried, cohabiting couples (both same-sex and heterosexual) was set out in legislation in May 2006. If a person who was in a co-habiting relationship and has separated, wishes to make a financial claim against the other, they have to do so within the first year of separation. Any claims outside the period will not be considered by the court.

“Essentially, this is a compensatory award based on the person’s contribution to the relationship through the period of cohabitation,” Ogilvie notes. It differs markedly from marriage in that this is not a division of marital property.

“If you have suffered financially by contributing to the relationship, for example, giving up work to look after children, then you might be entitled to a capital sum at the discretion of the Sheriff,” she explains. If a cohabiting partner dies, the surviving partner has to make any claim on the estate within six months, if the partner dies without leaving a will.