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Till death do us part

Senior Family Law Specialist at Pagan OsborneIt’s a term that might seem a tad archaic today, however a recent ruling in England has shown that sometimes the letter of the law is not what you would expect!

Last month Mrs Tini Owens, 66, went to the English Court of Appeal to ask them to overturn a previous Family Court ruling which said she could not divorce her husband, Hugh Owens, 78. 

Mrs Owens claimed that she was “locked in” to a marriage which had broken down irretrievably. However her husband disagreed and said that the couple still had “a few years left to enjoy together.”  

Judge Robin Tolson ruled against Mrs Owens in the Family Court last year, concluding that her allegations were “of the kind to be expected in marriage”. She had made 27 allegations against her husband, including that he was “insensitive" in his "manner and tone" and said she was "constantly mistrusted" and felt unloved.

Her solicitor stated that it was extraordinarily unusual in modern times for a court to dismiss a petition for a divorce.

In Scotland as long as you can show that a marriage has broken down irretrievably, you will be entitled to a divorce. You can prove this in four ways:

1. Unreasonable behaviour

2. Adultery 

3. A year’s separation plus your spouse’s consent 

4. Or two years separation – no consent is needed

While Mrs Owens’ application for divorce was based on unreasonable behaviour, the judge found that her claims were not sufficient to constitute grounds for divorce. 

This case calls into question the subjectivity around what ‘unreasonable behaviour’ really means, and around how this may be evidenced in the courts. While for some an unhappy marriage would seem enough reason to end a marriage, as this case shows sometimes the courts require a little more!

It will certainly be interesting to note the outcome of this English case, which does seem out of date with modern times.

If you are interested in any more information regarding Family Law, please contact Jenny Broatch on jbroatch@pagan.co.uk or 0131 624 6850

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