Actually, the first of those is a misnomer – as we explored in an earlier post the law on divorce in England & Wales requires behaviour (maybe unreasonable, maybe not) on the one part of a spouse that means it is unreasonable to now expect the other to continue living with them. The law doesn’t require “unreasonable behaviour”.

This post is about the decision of the Court of Appeal in Owens v Owens, which has received a lot of media coverage since yesterday when the decision was announced. Many are calling for a reform of divorce law that will not let a mature, competent woman out of a loveless relationship in which she is evidently very very unhappy.

Some examples of coverage are here in The Times [paywall], and The Daily Mail (which we note in common with earlier reports in this publication includes gratuitous upsetting information about the death of the Judge’s wife, the purpose of which can only be to insinuate that there is some connection between the judge’s own tragic experiences and his decision making. In fact, the Daily Mail have sought out and published more distressing detail than before, and now include an intimate photograph of Mr and Mrs Tolson). [Edit 11.31 25/3/17: The Daily Mail say incorrectly that the original judge “asked” the Court of Appeal to overturn his own decision. We think this is meant to be a reference to granting permission to appeal, but the Court of Appeal say that he refused permission to appeal, so the Daily Mail must be wrong. Alternatively this may be a typo and may mean Mrs Owens asked the court to overturn it. Either way it’s wrong.]

Before looking at the decision itself it’s worth noting that the Finding Fault Research Project at Exeter University have just published their Interim findings. They say this :

In reality, we already have divorce by consent or ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. There is no evidence so far from this study that the current law does anything to protect marriage. The divorce process is currently being digitised. This is a timely opportunity for law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.

Given other Parliamentary priorities at present, it seems unlikely that this will happen any time soon. There have been calls for reform for years, and this is a political hot potato that has never been an attractive one for Parliament to pick up, even when it does have time. So, for the time being it seems likely that spouses will have to continue pleading the bad behaviour of the other in their divorce petitions, unless they are both prepared to wait for 2 years separation, so that they can get divorced by consent. In most cases, spouses can find a form of words that is just enough but not too much and respondents can bear allowing allegations to go through on the nod in order to secure a divorce. Cases like Mrs Owens’ where one party digs their heels in and says the relationship has not irretrievably broken down are fortunately vanishingly rare – so in practice the problem is usually one of discomfort and unnecessary hurtfulness at an already difficult time, rather than an actual inability to get a divorce at all.

This post does not aim to give a detailed legal analysis of the case. There will be plenty of that available online in due course for those with the appetite for it. A few highlights or points of interest from the judgment are drawn out below.

Why couldn’t the Court of Appeal fix this?

When the outcome was published many expressed surprise and shock given how obvious at a human level it seems to be (to all bar Mr Owens) that the relationship is over. So how did the Court of Appeal come to uphold the decision of HHJ Tolson, who was much criticised for his decision and in particular his tacit acceptance (so it went) of the husband’s “old school” approach to marriage?

Well. In a nutshell, the answer is this. Mrs Owens had relied upon a series of incidents of individually trivial behaviour that she said amounted to a pattern of conduct that had a far more significant impact when taken cumulatively. And what’s more she said that the examples she gave were just that – examples of a pretty much continuous state of affairs. The gist of her allegations was that Mr Owens talked down to her and told her off and humiliated her in front of others.

But HHJ Tolson’s job was firstly to make findings of fact about what had happened during the course of the relationship and secondly to decide whether on those facts, Mrs Owens could reasonably be expected to live with Mr Owens. So stage 2 depends very much on the answer to stage 1.

And HHJ Tolson found that the examples that Mrs Owens gave were not just individually trivial, but were “scraping the bottom of the barrel” – rather than an illustration of behaviour of which there was much more, the judge having heard the evidence thought that this was it. This was as bad as it got – there were no other examples, if there had been, Mrs Owens would have pleaded them or given evidence about them. What’s more, several of the incidents she relied upon came in the wake of Mr Owens finding out about her affair, and seen in that context were pretty understandable responses to his hurt – so those temporary reactions were not really capable of being relied upon to show that Mrs Owens couldn’t reasonably be expected to live with him, as they weren’t really indicative of the state of the relationship overall.

So, when HHJ Tolson got to stage 2 there was in his view insufficient material upon which to properly find that the test  for a divorce was met.

Alright, but clearly the relationship has irretrievably broken down now. But I still don’t get why the Court of Appeal couldn’t find a way? 

The Court of Appeal judgment explains this pretty clearly. It is just not the job of the Court of Appeal to interfere with findings of fact made by the original judge (except in very limited circumstances which didn’t apply here). So whatever the Court of Appeal did, they were stuck with those findings, and could really only explore whether the judge went wrong at stage 2. They didn’t think he had. That isn’t to say that it wouldn’t have been legally possible for another judge to allow the divorce on the same facts, but the judge had not made any error of law so his decision couldn’t be interfered with. The Court of Appeal cannot just substitute their own view for that of the judge if he hasn’t actually gone legally wrong.

Lady Justice Hallett was obviously sympathetic, saying :

1. With no enthusiasm whatsoever, I have reached the same conclusion on this appeal as my Lord, the President, for the reasons that he gives. It was the trial judge’s duty, and ours, to apply the law as laid down by Parliament. We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them. It is for Parliament to decide whether to amend section 1 and to introduce “no fault” divorce on demand; it is not for the judges to usurp their function. Furthermore, this court cannot overturn a decision of a trial judge who has applied the law correctly, made clear findings of fact that were open to him and provided adequate reasons, simply on the basis we dislike the consequence of his decision. 
2. This was a petition for divorce under section 1(2)(b) of the 1973 Act; the judge could only grant the petition if satisfied that the husband has behaved in such a way that the wife cannot reasonably be expected to live with him. I accept that concepts of unreasonable behaviour may change over time. I need no persuading that behaviour considered trivial in the context of a happy marriage may assume much greater significance for a husband or wife trapped in an unhappy marriage. I bear very much in mind the cumulative effect of any proven behaviour and, of course, I bear very much in mind the impact of this particular husband’s behaviour on this particular wife. 
3. However, try as I might, I cannot find a legitimate basis for challenging the judge’s conclusions. He applied the law correctly and on the evidence before him, he was entitled to reach the conclusions that he did and provided good reasons for them. In my view, the criticisms made of the judge in this court and elsewhere were unwarranted. 
4. I very much regret that our decision will leave the wife in a very unhappy situation. I urge the husband to reconsider his position. On any view, the marriage is over. I can only hope that he will relent and consent to a divorce on the grounds the parties have lived apart for a continuous period of two years, rather than force his wife to wait until five years have elapsed.

The issue here is the gap between what many people think would be fair or humane (including it seems at least some of the judges in the Court of Appeal), and what the law actually says. The court can’t make the law something it isn’t. And the law doesn’t offer divorce on demand. In 99% of cases where both parties want to achieve the same end this gap can be skated over, but when the matter is contested the problem has to be confronted. The President of the Family Division, Lord Justice Munby, in the leading judgment acknowledged this :

1. The hypocrisy and lack of intellectual honesty which is so characteristic a feature of the current law and procedure differs only in magnitude from the hypocrisy and lack of intellectual honesty which characterised the ‘hotel divorce’ under the old law, so mercilessly satirised in 1934 first by Evelyn Waugh in A Handful of Dust and then by A P Herbert in Holy Deadlock and, in the post-war world, more soberly described by Sir Robin Dunn in Sword and Wig, Memoirs of a Lord Justice, 1993, pp 139-140. Too often the modern ‘behaviour’ petition is little more than a charade. The ‘hotel divorce’ centred on a charade played out in front of the chambermaid or private inquiry agent who then gave evidence of events which would enable a judge, who either was or affected to be credulous, to find that adultery had been committed even though the services provided by the unnamed woman found in the respondent’s bed when breakfast was taken in usually did not include the sexual intercourse which was, as it remains, essential to the act of adultery. That particular charade ‘worked’ because of the legal principle that adultery could be inferred if there was inclination and opportunity; the modern charade ‘works’ because of the operation of the rule of pleading (not in the real world much affected by either section 1(3) or FPR 7.20(2)(a)), that if a claim is conceded it goes through in effect by default.

The President sums up somewhat depressingly :

1. Mr Marshall [Mrs Owen’s barrister] complains that the effect of Judge Tolson’s judgment is to leave the wife in a wretched predicament, feeling, as she put it in her witness statement, unloved, isolated and alone, and locked into a loveless and desperately unhappy marriage which, as the judge correctly found, has, in fact if not in law, irretrievably broken down.
2. It may be of little consolation to the wife but she is not totally without remedy under the present law. If she waits until February 2020, assuming that she and her husband are still alive, she will, seemingly, be able to petition in accordance with section 1(2)(e) of the Act. Of course, the husband may seek to dispute that there has been five years’ continuous separation or to defend the petition in accordance with section 5(2) on the footing that the dissolution of the marriage would result in “grave hardship”. Both seem unlikely. It is also possible that her husband may eventually consent to a divorce on the grounds of two years’ separation in accordance with section 1(2)(d). But, unless she can bring herself within the “no fault” provisions of subsections 1(2)(d) and (e) she must remain trapped in her loveless marriage. As I observed during the course of argument, Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be. 
3. Such is the law which it is our duty to apply.

It is difficult to imagine Mrs Owens will have been greatly cheered by this, particularly the reference to the fact that one or both of them might be dead by the time they reach the 5 years separation point.

So, unless the law or Mr Owen’s mind changes, she will be stuck. The only other alternatives are a second appeal to the Supreme Court or a fresh petition alleging new facts – some press coverage suggests a further appeal might indeed be pursued. There has been some debate on twitter as to whether or not Mr Owens’ response to his wife’s desperate pleas for a divorce might itself be behaviour sufficient to justify a divorce (particularly since a Court of Appeal judge has herself pleaded with him to relent). It certainly cannot have contributed to a rapprochement between them, as through Mr Owens’ refusal to accept his wife’s feelings about their relationship the couple have had to air their differences very publicly in not one but two court hearings, and are splashed all over the newspapers. It seems unlikely that Mrs Owens will awake this morning to the sudden realisation that her husband was right all along and she didn’t really want out at all. Whether or not the husband’s attitude to the proceedings can or will amount to a way out for Mrs Owens is a question for another day.

[Edit 12.18 24/03/17

Why does it matter? She’s separated anyway?

We’ve noticed that a fair number of online comments by readers on mainstream press coverage suggest people think that Mrs Owens may have thought running behaviour may have been designed to get her more money on divorce. That’s a misapprehension. Bad behaviour rarely makes ANY difference to the amount of a financial award on divorce, and the sort of behaviour complained of here would certainly not give Mrs Owens any advantage. But without a divorce (and Mrs Owens at present can’t get one for another 3 years) Mrs Owens can’t remarry and (probably more importantly), she has no way of separating her finances from her husbands. She is currently living next door to him in one of their several properties which may be a somewhat uncomfortable experience for both of them. She is fortunate that between them they have more than one house, but if she wanted to move away she would struggle to achieve this without her husband’s cooperation. ]