This article has been produced by one of our Family Law experts Diane Matthews, who is a member of the family team specialising in divorce and all types of ancillary financial relief.
Wednesday 25th July 2018
Finally, on Wednesday 25th July 2018 the Supreme Court handed down the long awaited decision in the Owens case.
This case is one of the most significant divorce cases to be heard in recent years and the decision has been eagerly anticipated by family law practitioners throughout the country.
The significance of this case turns on the fact that it looked carefully on the interpretation of the meaning of the phrase “unreasonable behaviour”. This phrase is frequently used as a form of legal shorthand. It does not actually appear in the legislation. However, “unreasonable behaviour” is frequently cited as one of the five facts which provide evidence for the irretrievable breakdown of a marriage. It is very rare for Divorce Petitions to be defended in modern times. It is even more unusual for such matters to reach a final, contested Hearing. Therefore, Mrs. Owens’ journey from the Family Court to the Supreme Court has allowed the concept of “unreasonable behaviour” to be tested. Ultimately, the Supreme Court ruled, reluctantly, that Mrs. Owens (Mrs. Owens was the Petitioner in the proceedings) had not met the legal test and, as a result, she did not obtain the desired divorce. The Presiding Judges admitted having “uneasy feelings” about the appeal and they went on to invite “Parliament to consider replacing a law which denies Mrs. Owens a divorce in the present circumstances”.
The original application for divorce was filed by Mrs. Owens during May of 2015. Mrs. Owens, as has been widely reported, relied upon allegations of her husband’s “unreasonable behaviour” and Mr. Owens chose to take the unusual step of defending the Petition. This meant that Mrs. Owens’ allegations were tested in the Family Court under the conditions set out in the Matrimonial Causes Act 1973 which is the up to date legislation relating to such matters. The Judge at first instance (Judge Tolson) sitting in the Family Court acknowledged that the marriage had indeed broken down. However, he refused to grant Mrs. Owens a Decree Nisi of divorce finding that the evidence alleged against Mr. Owens was “flimsy” at best and “scraping the barrel” at worst. Mrs. Owens had listed 27 examples of her husband’s behaviour but the Judge found, in conclusion, that the incidents did not amount to much more than disagreements which might normally be expected to arise in a marriage of the length of the marriage subsisting between the parties.
The Judge had to decide whether or not Mr. Owens’ behaviour was such that living with him was impossible for Mrs. Owens. The Judge had to consider what a “right thinking” person might feel on hearing and considering the allegations made against Mr. Owens. Overall the Trial Judge found Mrs. Owens’ evidence to be “hopeless”, including the statement made by her that Mr. Owens had spent insufficient time with her and the family when they were growing up because he was concentrating on his career. The Judge, in fact, commented that the wealth generated by Mr. Owens’ business had contributed to the comfortable lifestyle about which Mrs. Owens made no complaint. The Judge went on to acknowledge that his decision did leave Mrs. Owens in something of a “no man’s land” because the marriage had clearly broken down but the breakdown was caused by issues not recognised by the law as being such as to lead to a dissolution of the marriage.
Mrs. Owens was allowed leave to appeal the initial decision and the matter came before the Appeal Court on 14th February 2017. The initial decision was upheld by the Court of Appeal, although much criticism of the existing law was made. It is notable that Lord Justice Munby stated that Appeal Judges can only interfere in a decision which cannot reasonably be explained or justified. This was not the position in the case of Owens where agreement was reached that Mrs. Owens had exaggerated the context and seriousness of the allegations and the resulting impact was minimal. The Appeal Court, therefore, upheld the decision of the Family Court stating that they did so with a “lack of enthusiasm”. Lady Justice Hallett 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. Later, in the Supreme Court, Lady Hale observed that “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”.
Lady Hale, sitting in the Supreme Court, went on to comment that “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”. She did, however, express serious concerns about the way in which the original Hearing was set up but was ultimately persuaded to join her fellow Judges and dismiss the appeal of Mrs. Owens.
It is clear that all the Judges sitting in all three Courts would have granted Mrs. Owens her divorce had they been able to do so. However, they were completely unable to take the next step as, quite simply, the legislation does not enable them to do so.
What is really clear is that the law does not recognise unhappiness as a reason to dissolve a marriage. The Presiding Judge in any case is only allowed 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”. This fact can only be established by applying the objective test of what would a “hypothetical, reasonable observer make of the allegations”? It is notable that the day before the Appeal Hearing, the Lords’ spokesperson for the Ministry of Justice had indicated that Parliament had no intentions to review the fault based system of divorce. A statement was made to the effect that there were no plans to change the current law but further reforms might be considered.
The need for reform of the current procedure is unarguable. There is a clear risk that Lawyers may now feel the need to prepare Divorce Petitions in stronger terms than previously they may have done. This, of course, has the “knock-on” effect of causing difficulty with regard to the negotiation of financial matters. Such difficulties will also arise in proceedings involving children and, of course, the net effect may well be a situation which is significantly more acrimonious than it could have been if the initial dissolution proceedings had been dealt with in a more sensitive manner.