Mrs Owens’s marriage had broken down, but under the law then in force that finding did not by itself entitle her to a divorce. Her petition relied on her husband’s behaviour. The appeal concerned the evidence needed to establish that she could not reasonably be expected to live with him.
A broken marriage, but no decree
Mrs Owens had left the matrimonial home. She wanted a divorce and Mr Owens opposed the petition.
In May 2015 she petitioned under section 1(2)(b) of the Matrimonial Causes Act 1973. She alleged irretrievable breakdown and that he had behaved in such a way that she could not reasonably be expected to live with him. The particulars were brief: he had put work before home life, lacked love or affection, was often moody and argumentative, and had disparaged her in front of others. Family lawyers are commonly advised to keep such allegations short, because they can inflame the dispute. Mr Owens defended. He denied irretrievable breakdown and alleged that she wished to continue the affair under another man’s influence. Lord Wilson recorded that this allegation was incorrect. Mr Owens said that they had learnt to rub along.
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The hearing had been listed on the assumption that it could be dealt with quickly. That mattered because Mrs Owens relied on the cumulative effect of several incidents.
The amended petition gave 27 examples, the earliest from 2013, and none from the first 35 years. Mr Owens admitted some, put others in a different context or called them exaggerated, and entered very few denials. At trial her counsel relied on only a few and, at the judge’s request, identified four. Most examples were not explored orally.
The judge called the petition hopeless. He found all 27 examples at best flimsy and found that Mrs Owens had significantly exaggerated their context and seriousness. He described Mr Owens as somewhat old-school and Mrs Owens as more sensitive than most wives. Of the examples particularly relied on, he treated three as isolated incidents which scarcely merited criticism, not a persistent course of conduct, and made no reference to the fourth. He found no behaviour such that she could not reasonably be expected to live with him, and said that her living apart had other causes. He dismissed the petition on 25 January 2016. The Court of Appeal dismissed her appeal on 24 March 2017.
The statutory test in 2018
Permission to appeal was given because the case appeared to raise a new question of interpretation. Mrs Owens’s principal argument was that the court should look to the effect of the behaviour on her, rather than to whether the behaviour itself meant she could not reasonably be expected to live with him. At the hearing her counsel conceded that this went too far. Resolution, intervening, maintained that broader reading and suggested that the subsection, or section 1 as a whole, might be incompatible with article 8 of the European Convention on Human Rights. Both suggestions were rejected.
Lord Wilson, with whom Lord Hodge and Lady Black agreed, held that the older authorities still stated the law. The inquiry has three stages: what the respondent did or failed to do; what effect that had on this petitioner, given her personality, disposition and the circumstances; and whether, as a result, it would be unreasonable to expect her to continue living with him. The question is narrower than whether she cannot reasonably be expected to live with him. His behaviour must have been such that she cannot. Its effect matters, but the focus on behaviour cannot be removed. The behaviour need not be grave, weighty or blameworthy, and need not have caused the breakdown.
In applying the legislation, a court had to consider the particular spouses and the circumstances of their marriage. Social expectations could change over time even where the statutory wording remained the same.
Why the appeal failed
Lord Wilson was uneasy. A near-summary hearing was inapt for a case said to depend on a remorseless course of authoritarian conduct. He questioned how three incidents could be called isolated when so many other pleaded examples had been put aside, and how significant exaggeration could be found when much of what Mrs Owens said had not been disputed. Unease was not a ground of appeal. The judge had heard the parties, the Court of Appeal had rejected the complaints, and permission had rested on an interpretation which was abandoned. The Supreme Court was most unlikely to reopen his evaluation.
The Court asked whether the judge had wrongly required the behaviour to have caused the breakdown. His reference to other causes gave that concern some support. The point had not been argued in the Court of Appeal, and counsel did not squarely rely on it even when it was raised. Lord Wilson thought that too weak a basis for finding elementary error, and declined to take it further.
Lady Hale found the case troubling, but agreed that the Court could not change Parliament’s law. She thought the trial judge had been led by the language of unreasonable behaviour towards a search for blame; had treated the behaviour as needing to cause the breakdown; and had not held a hearing capable of judging the cumulative effect of many small humiliations. If the appeal were allowed, she considered that the case would have to be reheard, and that a decree could not be assumed. Mrs Owens’s case was that another contested hearing would not serve the parties or the overriding objective, and her counsel viewed that prospect with dread. By February 2020, five years would have passed since the separation. Lady Hale was therefore reluctantly persuaded that the appeal should be dismissed.
Lord Mance agreed with Lord Wilson’s statement of the law and with dismissal. He considered that the judge had stated and applied the correct test, that asking expressly about cumulative effect would not have changed a conclusion that there was nothing in the case, and that the one-day hearing could not now be called unfair when Mrs Owens had asked for less time. He did not read the judgment as requiring the husband’s conduct to be the legal cause of the breakdown.
Verdict: The Court unanimously dismissed Mrs Owens’s appeal. Under the legislation applicable to her petition, the finding that the marriage had broken down did not justify a decree without proof of the statutory fact on which she relied. The Court did not order a rehearing.
Source: Owens v Owens [2018] UKSC 41
