Yesterday, Wednesday 25 July 2018, the Supreme Court dismissed Tini Owens’ appeal in Owens v Owens, one of the most significant divorce cases to be heard in recent years.

Significant because its focus was on the interpretation of the meaning of ‘unreasonable behaviour’– a phrase which does not actually appear in the legislation – as one of five grounds (and the most frequently cited) for proving a marriage has broken down irretrievably. It is extremely rare for divorce petitions to be defended, and even rarer for them to reach a final, contested hearing so Mrs Owens’ pursuit of her case from the Family Court to the Supreme Court has enabled the principle of ‘unreasonable behaviour’ to be tested. The Supreme Court ruled, albeit very reluctantly, that Mrs Owens had not met the legal test and thus denied granting her a divorce. However, the judges admitted having ‘uneasy feelings’ about Mrs Owens’ appeal and have invited “Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances”.

Evidence that marriage broken down ‘flimsy’

Mrs Owens filed for divorce in May 2015 citing ‘unreasonable behaviour’, and suffered the unusual experience of her husband deciding to defend the petition.  This meant that her allegations underpinning her charge of ‘unreasonable behaviour’ were tested in the Family Court under the terms of the Matrimonial Causes Act 1973, the most recent legislation in this area. Although Judge Tolson in the Family Court acknowledged that the marriage had broken down, he refused to grant a divorce because Mrs Owens’ evidence that her husband had behaved unreasonably was ‘flimsy’ at best and ‘scraping the barrel’ at worst. Mrs Owens’ legal team put forward 27 examples of her husband’s behaviour but Judge Tolson found, overall, that the incidents did not amount to much more than disagreements which might normally be expected to arise in a marriage of that length.

The Court had to decide whether or not Mr Owens’ behaviour was such that made living with him impossible, relying on what a ‘right thinking’ person might feel on considering the allegations made. Overall, Judge Tolson found Mrs Owens’ evidence ‘hopeless’ including her statement that her husband spent insufficient time with her and the family when they were growing up because he was concentrating on his career. He commented that the wealth Mr Owens’ business had created had contributed to her comfortable lifestyle about which she did not complain. However, he went on to acknowledge that his decision left Mrs Owens in no-man’s land because the reasons she did not want to continue living with her husband were down to causes not recognised by the law.

Appeal judges critical of existing law

Mrs Owens was given leave to appeal and there was a certain irony that the Appeal Court hearing into her divorce case was scheduled for 14 February 2017. Unfortunately for Mrs Owens, the Court of Appeal upheld the previous judgment – albeit with much criticism of the existing law. Lord Justice Munby noted that the Court was not there to try and find error ‘by tortuous mental gymnastics’ in the decision under review, and it was only interested in substance not semantics.  He went on to say that Appeal judges can only interfere in a decision which cannot be reasonably explained or justified. This was not the position in this case where they agreed that the wife had exaggerated the context and seriousness of the allegations and the resulting impact was modest. Therefore the Appeal Court upheld the decision of the Family Court albeit with a considerable ‘lack of enthusiasm’. Lady Justice Hallatt made the point that the criticisms levelled at the husband would probably be tolerated within an otherwise happy marriage but would be intolerable within an unhappy one. Indeed, sitting in the Supreme Court, Lady Hale observed: “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”.

Unhappiness is no reason to divorce

The nub of the matter, acknowledged by the judges in each court, is the requirement for someone who wishes to divorce to cite one of five reasons: adultery, desertion, unreasonable behaviour, two years’ separation with the consent of both parties, or five years’ separation without consent. The law does not recognise unhappiness in a marriage as a reason to seek a divorce and, as it stands, only allows a judge to grant a divorce if, on the balance of probabilities “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. In turn, this can only be established by applying the objective test of what would a “hypothetical, reasonable observer make of the allegations”? In response, Mrs Owens argued that a subjective test of how her husband’s cumulative behaviour impacted on her should be applied. The Court was sufficiently sympathetic to her argument that it allowed an appeal to the  Supreme Court – which found its hands similarly tied by legislation that, when put the test, was found wanting.

Time for change

All the judges involved in each stage of this case agreed that the law was inadequate as this marriage had quite clearly and irretrievably broken down but not in a way recognised by the law – and judges can only interpret the law made by Parliament. Almost all petitions are undefended as, generally speaking, once someone gets to the point of filing for divorce their spouse is aware that the marriage is over and accepts it as such. The anomaly in the law only comes to light if a petition is defended as in this case; a situation which extremely rare. Most petitions cite unreasonable behaviour and solicitors are encouraged by the Law Society and Resolution (which has supported Mrs Owens’ appeal) to use relatively uncontentious examples, not least to avoid inflaming an already difficult situation, so Mrs Owens’ legal team was following accepted practice. Of course, once the claims were tested, they were found to be too anodyne to stand detailed scrutiny. As the Appeal judges pointed out, the laws on which they have to base their decisions on are based on ‘hypocrisy and lack of intellectual honesty’.

Parliament should heed Lady Hale’s misgivings

As Lady Hale, sitting in the Supreme Court, commented: “It is not for us to change the law laid down by Parliament - our role is only to interpret and apply the law that Parliament has given us”. Nonetheless she expressed serious misgivings about the way in which the original hearing was set up but was ultimately persuaded to join her fellow judges and dismiss Mrs Owens’ appeal. There is no doubt that all the judges sitting in the three courts would have granted Mrs Owens’ her divorce, had the legislation enabled them to do so. On this basis, this judgment should give Parliament pause for thought –the most common reason for proving that a marriage has irretrievably broken down, when examined in court, has shown that it is out of step with modern thinking.

Argument for no-fault divorce is strong

It just so happened that the day before the Appeal hearing, the Lords’ spokesperson for the Ministry of Justice had replied in the negative to a question about whether or not Parliament intended to review the fault-based system of divorce, stating that there were no plans to change the current law but further reforms might be considered. Although this case is unlikely to encourage a sudden rush of contested cases (only 760 divorces were defended out of 113,996 petitions filed in the last 12 months), it might embolden some people to defend a divorce petition, particularly in the context of the financial implications of splitting up.  There is also the danger that solicitors might be persuaded to draft petitions in much more robust terms with the potential for making a divorce considerably more acrimonious than need be. The overall argument for reform is strong and the Supreme Court’s commentary may be just the nudge that Parliament needs to carry out a root and branch review.

About the author

Justin Creed Head of the family team

Justin is a family and divorce lawyer, experienced in all aspects of family, divorce & matrimonial law. As a qualified collaborative lawyer and a member of Resolution, he actively seeks the resolution of disputes without involving the courts.