Owens v Owens is a Supreme Court decision about divorce, specifically about the level of behaviour needed to obtain a divorce on the basis of a spouse’s behaviour. Although we commonly refer to this as ‘unreasonable behaviour’, the proper wording says:
‘That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’: s 1(2)(b) Matrimonial Causes Act 1973; s 44(5)(a) Civil Partnership Act 2004.
In order to obtain a divorce on the basis of a spouse’s behaviour, the petitioner – the person seeking the divorce – must show
- That the marriage has irretrievably broken down, i.e. cannot be saved
- That they have been married for more than one year
- Some behaviour on the part of the respondent that makes it unreasonable to expect the petitioner to continue to cohabit with the respondent
- It is NOT necessary to show that the marriage broke down BECAUSE of the behaviour.
Defining ‘unreasonable’
The ‘unreasonableness’ relates to whether the petitioner should have to live with the respondent given the way the respondent is behaving, and does not describe the behaviour itself. In most cases, this behaviour will in fact be bad, but it could be behaviour that is entirely out of the control of the respondent and for which he or she cannot be blamed at all, such as behaviour caused by a mental or physical illness.
It’s important to understand that even if the petitioner thinks the marriage has irretrievably broken down, and even if both parties agree the marriage has broken down, the court still has to decide that it has. The test to be applied, from a case called Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47, is ‘would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?’ There is therefore an objective element (‘would any right-thinking person’) and a subjective element that enables the court to consider the cumulative effect on the petitioner (‘this wife’; or, as in our scenario, ‘this husband’). It is therefore important in the petition to spell out the effect of the alleged behaviour on the petitioner.
The court should
- first consider what the husband did,
- then consider what effect this had on the petitioner,
- then in light of that consider whether it would be unreasonable to expect the petitioner to continue to live with the respondent.
However, the leading cases on behaviour tend to be decades old and indicate a somewhat harsh approach to whether it would be unreasonable to expect them to continue to live together. In Buchler [1947] P 25, for example, the court said that the behaviour ‘must exceed in gravity such behaviour, vexatious and trying though it may be, as every spouse bargains to endure when accepting the other “for better, for worse”. The ordinary wear and tear of conjugal life does not in itself suffice.’ In Ash v Ash [1972] Fam 135, Bagnall J thought that ‘a violent petitioner can reasonably be expected to live with a violent respondent; a petitioner who is addicted to drink can reasonably be expected to live with a respondent who is similarly addicted … if each is equally bad, at any rate in similar respects, each can reasonably be expected to live with the other.’
Over time, this approach has become more lenient but this is largely because most cases are not defended and it has become best practice to include only the minimum level of details in the petition so as not to make a bad situation worse. Defended cases are few and far between, so practitioners’ concentration has not been on whether these cases still represent the law.
When Mrs Owens filed her divorce petition, she therefore included relatively mild details about why she wanted the divorce.
Here is what her petition said about her husband’s behaviour:
- “The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and family events. This has caused the Petitioner much unhappiness and made her feel unloved.
- During the latter years of the marriage the Respondent has not provided the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother which has made the Petitioner feel unappreciated.
- The Respondent suffers from mood swings which caused frequent arguments between the parties which were very distressing and hurtful for the Petitioner who has concluded that she can no longer continue to live with the Respondent.
- The Respondent has been unpleasant and disparaging about the Petitioner both to her and to their family and friends. He speaks to her and about her in an unfortunate and critical and undermining manner. The Petitioner has felt upset and/or embarrassed by the Respondent’s behaviour towards her as well as in front of family and friends.
- As a result of the Respondent’s behaviour towards her, the Petitioner and the Respondent have until recently lived separate lives under the same roof for many years and have not shared a bedroom for several years. On 10 February 2015 the Petitioner moved into rented accommodation and the parties have been living separate and apart since that date.”
These details are a similar to many behaviour petitions filed each day. This is all very well if the petition is not defended, because where both parties want a divorce the court will usually give it very little scrutiny (research says courts look at the divorce documentation for an average of 4 minutes per case).
The reason that we know about the Owens particulars is because their divorce was defended and therefore the case was fought in open court and not (as is the case in undefended divorces, just on paper). Mr Owens denied both that the relationship had broken down and that he had behaved in such a way that Mrs Owens should not reasonably be expected to live with him. Notwithstanding that Mrs Owens had amended the particulars stated above to include 27 allegations in the same vein, the judge at first instance, His Honour Judge Tolson, held that her petition was ‘flimsy’ and that it could not be held that it was unreasonable for her to continue to live with the husband even though the marriage was – whatever the husband thought – irretrievably broken down.
The Court of Appeal
‘With no enthusiasm whatsoever’, the Court of Appeal [2017] EWCA Civ 182 upheld the decision, noting that
‘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. Such is the law which it is our duty to apply.’
(See our earlier post, here.)
The Supreme Court
Mrs Owens appealed to the Supreme Court. Their decision [2018] UKSC 41 records that
‘Her principal ground of appeal had been that the subsection should now be interpreted as requiring not that the behaviour of Mr Owens had been such that she could not reasonably be expected to live with him but that the effect of it on her had been of that character’.
In other words, that the emphasis should be on the subjective element of the test. The Supreme Court rejected this, holding that
‘the question posed by the subsection is more narrow than whether the petitioner cannot reasonably be expected to live with the respondent; it is whether the respondent’s behaviour has been such that the petitioner cannot reasonably be expected to do so. In determining whether a continuation of life with the respondent cannot reasonably be expected of the petitioner, it is therefore impossible to avoid focus on the respondent’s behaviour, albeit assessed in the light of its effect on the petitioner.’ [29]
Lord Wilson notes that our conceptions of what might justify a divorce have changed over time, and refers to Ash v Ash’s approach as ‘comical’.
So far, this is looking good for Mrs Owens. But unfortunately that’s the best it gets for her. There is no evidence that the judge understood the law wrongly, and to succeed on an appeal you have to show this. The Court of Appeal ‘who have unrivalled authority in this sphere’ didn’t think he had. The Supreme Court didn’t think he had.
The judge did look at the behaviour, and did look at the effect on Mrs Owens, and did assess whether it was unreasonable to expect Mrs Owens to continue to live with Mr Owens. He therefore applied the right legal test.
However, Lord Wilson does express reservations about the way in which a pattern of what he termed ‘authoritarian’ behaviour on the part of Mr Owens had been reduced to ‘only a few individual incidents’ which, coupled with an agreement that third party witnesses to the allegations would not testify therefore reduced the judge’s impression of the impact upon her:
‘There is no denying that the appeal of Mrs Owens generates uneasy feelings: an uneasy feeling that the procedure now conventionally adopted for the almost summary despatch of a defended suit for divorce was inapt for a case which was said to depend on a remorseless course of authoritarian conduct and which was acknowledged to appear unconvincing if analysed only in terms of a few individual incidents; an uneasy feeling about the judge’s finding that the three incidents which he analysed were isolated in circumstances in which he had not received oral evidence of so many other pleaded incidents; and an uneasy feeling about his finding that Mrs Owens had significantly exaggerated her entire case in circumstances in which Mr Owens had not disputed much of what she said.
But uneasy feelings are of no consequence in this court, nor indeed in any other appellate court.’
That’s the majority view, held by Lord Wilson, Lord Hodge, and Lady Black. Lord Mance agrees with them, except that he takes a slightly different interpretation of a few things said by the judge at first instance.
However, there is a dissent from Lady Hale. I read some interesting research recently that Lady Hale seeks consensus, so although she has some notable dissents (e.g. Radmacher) she’s usually in the majority:
- She thought the Tolson J’s repeated references to unreasonable behaviour were concerning. As noted above, the unreasonableness does not relate to the behaviour even if it’s common for people to use the phrase ‘unreasonable behaviour’. That may indicate an error in the judge’s understanding of the legal test.
- She is concerned that Tolson J thought there had to be a causal link between the behaviour and the marriage breaking down (the pleadings by the husband referred to him not being the cause of the marriage breaking down, and there are some phrases by Tolson J that may indicate the judge wrongly thought this was relevant). As stated above, the marriage has to be irretrievably broken down, but not necessarily because of the behaviour.
- Third, ‘this was a case which depended upon the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time. Those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which should exist in any marriage. The problem, as Lord Wilson has shown, is that this [first instance] hearing was not set up or conducted in a way which would enable the full flavour of such conduct to be properly evaluated.’
She would have sent the case back for rehearing. However, in the end she is persuaded that the prospect of a further contested hearing would be horrible for the parties (even Mrs Owens says this) and suggests that Mrs Owens waits until 2020 to divorce on the basis that the parties have been separated for 5 years, a fact that doesn’t require Mr Owen’s consent and is hard to deny.
Of course, her view is not the majority so she alone could not direct a rehearing but nevertheless, I have to say that her characterisation of the correct outcome being a rehearing, and then refusing either a rehearing is very strange even if the overriding objective of courts is to deal with cases expeditiously, but that is a subset of dealing with cases fairly, and it seems somewhat more just to help release the ties that bind.
Comments
The Court does not have the power to change the law itself. It cannot say that we should abolish all fault-based grounds of divorce and get divorced just because we want to. However, it can indicate how we should interpret what level of behaviour judges should treat as making it unreasonable to live with the respondent.
The Supreme Court judges were concerned that an agreement to concentrate at the first hearing on only a few of the allegations minimised the judge’s appreciation of the cumulative effect of the alleged behaviour on Mrs Owens over the decades of her marriage. One wonders whether a different first instance approach to case management would have changed the outcome.
However, despite this there is no evidence that the judge understood the law wrongly, and to succeed on an appeal you have to show this. The judge did look at the behaviour, and did look at the effect on Mrs Owens, and did assess whether it was unreasonable to expect Mrs Owens to continue to live with Mr Owens. He therefore applied the right legal test.
The decision is based upon a lack of evidence that the judge applied the law wrongly, despite some concerning phrases by him. Lady Hale is more forthright about these errors and would have had a rehearing. Practitioners may well be sympathetic to her view of the case.
So, where now for divorce petitions?
Owens is a cautionary tale that reminds us that the law does not necessarily accord with current views about exiting marriage and that there is a conflict between trying to make the process as painless as possible and having a sufficiently strong petition.
However, it would be a disproportionate response to bolster petitions: the harm of doing so in the form of raised acrimony is surely much more likely to occur as a result than disincentivising a defence that is unlikely anyway. Defended divorces, although commonly threatened, are very, very rare. (Of course, this itself causes unfairness to a respondent who feels wronged but has a snowball’s in hell chance of succeeding or of having the money to defend: Mr Owens is the only successful defence in recent years). Nor are they likely to become more successful after Owens, given that the judgment sounds cautionary notes to judges about legal interpretation and makes it clear that behaviour that would not justify a divorce decades ago will now do so. The only change I recommend as a result of this decision is to ensure that you have your ducks in a row for any first hearing because of the limited likelihood of success at showing the first instance judge was wrong on appeal. Otherwise, carry on as you were.
Featured image: wilted and brittle by A, via Flickr creative commons, reproduced with thanks.