A recent decision from an English family judge refusing as it did Tina Owen’s application for a divorce from her multi-millionaire mushroom farmer husband, after many years of marriage, throws into sharp relief the challenges facing couples when one of them simply refuses to accept that their marriage is over.
Rare though it may be, on some occasions, a husband or wife simply cannot come to terms with the breakdown of a relationship and objects to an application for divorce. And Courts are not in the business of rubber stamping the “will” of one party however determined they may be. Evidence is required to support the proposition that a marriage has broken down irretrievably, both in Scotland and in England. In Mrs Owen’s case, after many, many years of apparently being unhappily married, the judge rejected as “too flimsy” her application to be divorced despite the fact that she felt “unloved, isolated and alone”; so much so that she had sought solace elsewhere.
In Scotland, her path may not have been quite so difficult. In our jurisdiction the periods of separation which can be used to justify an application for divorce have been shorter than south of the border for some time. Whereas in Mrs Owen’s case after two years of separation, her husband’s consent was required to divorce, (and she will have to wait for five years where his consent is withheld), in Scotland a consent to divorce can be processed after one year and in the absence of consent, after two years if financial and childcare issues are resolved. On one view these time periods are more humane and whilst providing an opportunity for considered reflection on the state of a marriage, they avoid the spectre of an unhappily married couple being shackled together for protracted periods of time when, in the view of one party at least, the marriage is over.
Approaching the breakdown of marriage in a more enlightened way can also be encouraged by considering Mediation and Collaboration. Such methods of resolving differences between couples can encourage consensus on all issues including how and when to be divorced.