Working as a Family lawyer with a knowledge of English and Spanish laws and procedures one thing that stands out is the concept of no-fault divorce. Spain in line with many countries in Europe introduced no-fault divorce some years ago. After three months of marriage either party can apply to the courts in Spain to get a divorce without having to allege any grounds.
In England & Wales as well as in Scotland and Northern Ireland a reason must be given. In English law there are five grounds, 5 years separation; 2 years separation; adultery; desertion and unreasonable behaviour. In addition to proving one of the 5 grounds it must be shown that the marriage has broken down irretrievably.
The most frequently stated ground when getting a divorce in England is unreasonable behaviour. The test for this is partly objective – in that it must be proved as a fact – and partly subjective in that it must show that this particular spouse could not live with the behaviour in question. Having read a great deal of case law over the years I thought I had considered most possible scenarios. For example, a husband’s obsession with DIY and failure to complete projects in the family home led to the wife alleging and proving unreasonable behaviour that she could not live with.
However, having just read the 24 pages of transcript and the decision in Owens v Owens (2017) EWCA Civ.182 I can only agree with the statement made as long ago as 1906 by Sir Gorrell Barnes P who attacked this aspect of law saying that matrimonial law in England is “full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; ….”. The case of Owens hit the front pages when a wife was refused a divorce by the Judge based on the evidence that was presented in court.
A detailed reading unveils disagreements over a present bought at an airport in Mexico; a restaurant meal with a friend and a pub dinner where the husband claimed he was merely too tired to talk to his wife having worked in the garden for the day. As Lady Justice Hallett stated in judgement … “what may be regarded as trivial disagreements in a happy marriage could be salt in the wound of an unhappy marriage.” Or perhaps more lyrically put by Tolstoy in Anna Karenina “All happy families are alike; each unhappy family is unhappy in its own way.”
Sandra Wrightson – Partner at De Cotta Law. For more information on getting a divorce in England or in Spain contact us on 952 527014 or on [email protected]