The recent Supreme Court appeal case of Owens v Owens has resulted in considerable public and media attention. Mrs Owens sought decree of divorce from her husband. It was Mrs Owen’s positon that the behaviour of her husband meant that it was unreasonable to expect her to continue to require to live with him as his wife. Mr Owens defended the case by stating that the parties’ marriage had not broken down irretrievably. Mrs Owens stated a total of 27 allegations of Mr Owen’s behaviour. At the conclusion of the hearing the judge in the first instance refused to grant divorce. He described Mrs Owen’s allegations as flimsy, suggesting that she had exaggerated the context and seriousness of each instance.

The case was appealed to the Court of Appeal then to the Supreme Court. Both appeal courts refused to overturn to the original decision. The courts stated they were bound to apply the law and Mrs Owens had failed to establish that Mr Owens had behaved in such a fashion that it was not reasonable for her to continue to live with him.

An example of Mrs Owens’ allegations is the “airport incident”. The parties had been returning from a holiday together in South Africa. Mr Owens suggested that they buy a certain gift for their housekeeper. Mrs owns claims she could not see what he suggested and instead bought her a necklace. Mrs Owens then claims that Mr Owens raised his voice to her and embarrassed her in the airport because of her choice. She claims he stormed off and continued to berate her in the boarding queue. Mr Owens denied embarrassing her and claims she exaggerated the entire event following a pleasant holiday.

Mr Owens said in his evidence that, “I think she had an ulterior motive for collecting all these, what, to my mind was a collection of molehills which she felt suited her purpose to build up into mountains because she had aspirations outside of our marriage.”

The English law of divorce is very different to the Scottish law of divorce, albeit there are enough similarities for this case to be of great interest to both solicitors and parties north of the border. In both jurisdictions, there are three ways that a party can demonstrate that there has been irreconcilable breakdown of their marriage: adultery (of your spouse), so-called unreasonable behaviour and finally non-cohabitation.

Mrs Owens had an affair shortly before she told Mr Owens she believed their marriage was over. However it is not open to her in either jurisdiction to seek divorce on the basis of her own affair.  Mrs Owens is also unable, in England, to seek divorce on the grounds of non-cohabitation. English law requires that the parties are separated for at least five years before they can divorce if the other spouse does not consent. As Mrs Owens claims that the parties separated in 2015, divorce cannot be sought on this basis until 2020. In Scotland, the law was reformed in 2006 to allow parties who could establish that they had been separated for two years to seek decree of divorce, without requiring their spouse’s consent.

When considering whether a party has a basis in law to raise proceedings for divorce, we often consider whether such a case could be reasonably raised by stating that the behaviour of our client’s spouse resulted in the irretrievable breakdown of marriage. The test in Scottish law is:

“Since the date of the marriage the defender has at 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.”

This matter has been considered by the Scottish appeal courts once in recent history, in the case ofTaylor v Taylor, which was decided by the Inner House of the Court of Session in 2000. Mrs Taylor had been granted decree of divorce by proving that she could not be reasonably expected to live with Mr Taylor because of his behaviour. Mr Taylor appealed.

The allegations of Mr Taylor’s behaviour included devoting himself to his work as a Minister to the detriment of his life at home, including refusing to go to art galleries and picnics. Mrs Taylor claimed that he expected her to do everything for him at home. She claims he tried to control what she listened to on the radio and watched on television. He would not allow her to work or undertake an Open University course to prevent her from mixing with other men.

The court refused to grant the appeal in respect of the parties’ divorce, as it was satisfied that Mrs Taylor had established that Mr Taylor’s behaviour was sufficiently unreasonable that she should not be expected to live with him.

In many cases, like both Owens and Taylor, a party will require to establish a pattern of conduct to demonstrate the behaviour complained about. Some couples would consider a row in an airport to be a part of every holiday. Every marriage is different and the court will consider how the behaviour, or course of behaviour, complained about impacted the couple who is seeking divorce.