This week the Supreme Court issued its decision in the appeal of Tini Owens against her husband, Hugh Owens. 
Mrs Owens had appealed against an English Judge’s decision not to grant her Petition for Divorce, which had been brought in terms of Section 1(2)(b) of the Matrimonial Causes Act 1973.  That Section provides that “a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court…that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. 
The Judge in Mrs Owens’ case held that the examples of Mr Owens’ behaviour – that Mrs Owens said demonstrated that she could not reasonably be expected to live with him – were insufficient to satisfy the terms of Section 1(2)(b) of the 1973 Act.  It is that decision that the Supreme Court has upheld, albeit with some reluctance. 
In Scotland, like England & Wales, the starting point for any divorce action is to establish the “ground for divorce”, with the Supreme Court’s decision highlighting that, if an individual is unable to establish the ground relied on in the same way that Mrs Owens was unable to, the Court will not grant that individual’s application for divorce. The law on divorce in Scotland is governed by the Divorce (Scotland) Act 1976 and the grounds for divorce are slightly different than in England & Wales. In terms of Section 1(1) of the 1976 Act, the Scottish Courts “may grant decree of divorce if, but only if, it is established in accordance with the following provisions of this Act that (a) the marriage has broken down irretrievably; or (b)…an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the date of marriage, been issued to either party to the marriage”.  The rule in (b) is subject to a couple of exceptions. 
Section 1(2) of the 1976 Act then goes on to confirm that the “irretrievable breakdown of a marriage shall, subject to the following provisions of this Act, be taken to be established in an action for divorce if…since the date of the marriage – ”
(i) “the defender has committed adultery”;
(ii) “since the date of the marriage the defender has any time behaved (whether or not as a result of mental abnormality and whether such behaviour has been active or passive) in such a way that the pursuer cannot reasonably be expected to cohabit with the defender”
(iii) “there has been no cohabitation between the parties at any time during a continuous period of one year after the date of the marriage but immediately preceding the bringing of the action and the defender consents to the granting of decree of divorce”; or
(iv) “there has been no cohabitation between the parties at any time during a continuous period of two years after the date of the marriage and immediately preceding the bringing of the action”. 
Whilst these provisions are similar to those that apply under English Law, the 1973 Act in England & Wales makes it harder to seek a “no fault” divorce – that being a divorce that does not require the individual seeking divorce to prove adultery or unreasonable behaviour on the part of their spouse – in that, where the other party opposes the granting of divorce, for whatever reason, a continuous period of five years’ non-cohabitation requires to elapse before divorce can be granted without the consent of the other party. In Scotland, the period is much shorter, i.e. two years, and, accordingly, if Mrs Owens was subject to Scottish jurisdiction, she would be unlikely to find herself in her current position, that being that, because she has been unable to prove that decree of divorce should be granted based on one of the other grounds, and because Mr Owens will not otherwise consent to divorce, she will require to remain married to her husband for the time being and until a period of five years has elapsed, starting from the date she and her husband ceased living together.  As Mrs Owens left the matrimonial home in February 2015, she will accordingly require to remain married to her husband until at least 2020. 
This decision is likely to have far reaching consequences in England & Wales and, indeed, the Supreme Court Judges hinted that the legislature may wish to reconsider the law of divorce in England & Wales. However, it should be remembered that the position in Scotland when it comes to divorce is different and, as above, governed by different legislation entirely. There is also separate legislation, applicable to Scotland only, in relation to how finances are to be divided upon divorce, as well as what rights parents have in relation to their children. 
In the event you have any queries in relation to an aspect of Family Law, please do not hesitate to contact a member of our Family Law Team.