Lord Wilson: (with whom
Lord Hodge and Lady Black agree)
The Background
1.
Mrs Owens appeals against an order of the Court of Appeal dated 24 March
2017 (Sir James Munby, the President of the Family Division, and Hallett and
Macur LJJ), [2017] EWCA Civ 182, [2017] 4 WLR 74, by which it dismissed her
appeal against the dismissal of her petition for divorce by Judge Tolson QC
(“the judge”) on 25 January 2016 in the Central Family Court in London.
2.
The petition of Mrs Owens was based upon section 1(2)(b) (“the
subsection”) of the Matrimonial Causes Act 1973 (“the 1973 Act”), which extends
only to England and Wales: she alleged that her marriage to Mr Owens had broken
down irretrievably and that he “has behaved in such a way that [she] cannot
reasonably be expected to live with [him]”.
3.
It was in the belief that the appeal of Mrs Owens would raise a novel
issue about the interpretation of the subsection that this court gave
permission for it to be brought. 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.
But, important though the effect on the petitioner of the respondent’s behaviour
is under the subsection, Mr Marshall QC on her behalf conceded at the hearing
that the principal ground went too far. So issues about the interpretation of
the subsection, at any rate as between Mr and Mrs Owens, have narrowed
substantially. But our judgments may nevertheless remain of some value to those
who in the future wish to invoke, or need to apply, the subsection. Resolution,
the name by which the Solicitors Family Law Association is now known,
intervenes in the appeal. It commends, by contrast, a re-interpretation of the
subsection along the lines of that principal ground of appeal. The court is
grateful for its presentation but in the circumstances will refer only briefly
to it.
4.
Mrs Owens is aged 68. Mr Owens is aged 80. They were married in 1978 and
have two children, now adult. During the marriage, with the support of Mrs
Owens, Mr Owens built a successful business and they each now have significant
wealth. The matrimonial home, in which Mr Owens continues to live, is a
substantial manor house in a village in Gloucestershire. Mrs Owens now lives
next door, in a property which they also own.
5.
It was in June 2012 that Mrs Owens first consulted her solicitors about
a divorce. In about November 2012 she began an affair. It ended in August 2013,
which was when (as Mrs Owens later discovered) Mr Owens learnt of it. Mrs Owens
told the judge that the affair “was the result of a bad marriage, not the cause
for divorce”. The judge did not say whether he accepted what she said: he could
not do so because, as I will explain, he did not receive evidence about the
quality of the marriage prior to 2013.
6.
In February 2015 Mrs Owens left the matrimonial home and, following five
months in rented accommodation, began to occupy the property next door to the
home. They have not lived together since her departure. The judge found as
facts that the marriage had broken down; that Mrs Owens could not continue to
live with Mr Owens; and that, in so far as he believed otherwise, Mr Owens was
deluding himself.
7.
Back in December 2012 Mrs Owens had handed to Mr Owens a letter written
by her solicitors, with which was enclosed a draft petition for divorce based
upon the subsection; and in the letter the solicitors had enquired of Mr Owens
whether, if a petition were to be issued in the terms of the draft, he would
defend it. As he accepts, Mr Owens then told Mrs Owens that, if she filed the
petition, he would never speak to her again. The judge remarked that, like the
petition which she filed much later, this initial draft “lacked beef”. That
should have been a compliment, not a criticism. Family lawyers are well aware
of the damage caused by the requirement under the current law that, at the very
start of proceedings based on the subsection, one spouse must make allegations of
behaviour against the other. Such allegations often inflame their relationship,
to the prejudice of any amicable resolution of the ensuing financial issues and
to the disadvantage of any children. Thus for many years the advice of the Law
Society, now contained in the second guideline of para 9.3.1 of the fourth
edition (2015) of the Family Law Protocol, has been:
“Where the divorce proceedings are
issued on the basis of unreasonable behaviour, petitioners should be encouraged
only to include brief details in the statement of case, sufficient to satisfy
the court …”
8.
In his judgment the judge observed that the draft petition was delivered
to Mr Owens at the time when Mrs Owens had begun the affair. “The strong
implication”, he said, “is that there was no substance in the draft petition”.
Indeed at the hearing he had suggested that the existence of the affair “knocks
out” the allegations made in it and provides an “ulterior motive” for the
proposed petition. With respect, I suggest that it is wrong to infer that a
spouse who aspires to present a petition while conducting an affair has no case
under the subsection.
9.
In the event the draft petition was never issued. Mr and Mrs Owens
continued to live in the matrimonial home, and to a substantial extent to live
together, for a further two years. But Mrs Owens continued to keep a diary of
incidents between herself and Mr Owens of which she might later wish to
complain.
10.
In May 2015 Mrs Owens issued the petition which is the subject of the
proceedings. Like the earlier draft, it was based on the subsection and was
cast in appropriately anodyne terms. The statement of case comprised five
paragraphs. In them Mrs Owens alleged only that Mr Owens had prioritised his
work over their life at home; that his treatment of her had lacked love or
affection; that he had often been moody and argumentative; that he had
disparaged her in front of others; and that as a result she had felt unhappy,
unappreciated, upset and embarrassed and had over many years grown apart from
him.
11.
For some reason Mr Owens declined to instruct the solicitors who had been
corresponding on his behalf with Mrs Owens’ solicitors to accept service of the
petition; so it was served upon him personally. He indicated an intention to
defend the suit. By his answer, he denied that the marriage had broken down
irretrievably and alleged, in the event incorrectly, that in bringing the suit
Mrs Owens was motivated by a wish to continue the affair and that the other man
was exercising a malign influence over her. At that stage Mr Owens largely
denied the allegations about his behaviour and said that, although never
emotionally intense, the marriage had been successful and that he and Mrs Owens
had learnt how to “rub along”.
12.
In October 2015 a recorder conducted a case management hearing pursuant
to rule 7.22(2) of the Family Procedure Rules 2010 (“the FPR”). In the light of
Mr Owens’ defence of the suit, Mrs Owens was granted permission to amend the
petition so as to expand her allegations of behaviour. The recorder also
directed that the parties should file short witness statements, which were to
stand as their evidence in chief.
13.
The recorder made two further significant directions. The first was that
there should be no witness other than the parties themselves. It appears that,
by counsel, Mrs Owens agreed to that direction. The second related to the
requirement under the rule for the recorder to give directions for the conduct
of the final hearing of the suit. The court is told that, by their respective
counsel, the wife suggested that a hearing of one half day would suffice
whereas the husband suggested that three days were required. In the event the
recorder’s direction was for a hearing of one day.
14.
Why did the experienced legal advisers to Mrs Owens consider that the
court would need only one half day in which to determine the issues raised by
her petition and that she would not need to call any witness to corroborate,
for example, her allegation of disparaging comments on the part of Mr Owens in
front of others?
15.
The answer to this question is not in dispute. It lies in an understanding
of the practical operation of the family court nowadays when determining a
defended suit for divorce. Defended suits are exceedingly rare. In his judgment
the President noted that, in relation to the 114,000 petitions for divorce
which were filed in England and Wales in 2016, fewer than 800 answers were
filed; and he estimated that the number of suits which proceeded to a final,
contested hearing was 0.015% of the petitions filed, which amounts to about 17
in that whole year. The degree of conflict between the parties which is evident
in a fully defended suit will of itself suggest to the family court that in all
likelihood their marriage has broken down. While it recognises that, unless and
until repealed by Parliament, section 1 of the 1973 Act must conscientiously be
applied, the family court takes no satisfaction when obliged to rule that a
marriage which has broken down must nevertheless continue in being.
16.
In No Contest: Defended Divorce in England and Wales, published
in 2018 by the Nuffield Foundation, Professor Trinder and Mark Sefton make a
report on their detailed study of recently defended suits. In an admirable
summary of the approach of the family court at pp 7-8, they say:
“While respondents are typically
focused on defence as a means to establish their ‘truth’ of why the marriage
broke down, the family justice system is predicated on settlement and
compromise. That settlement orientation applies even in cases where a formal
defence has been issued, with encouragement to settle at each stage of
proceedings, up to and including, contested hearings. The very active promotion
of settlement at each stage, with lawyers and judges working in concert,
reflects the dominant family justice perspective that agreed outcomes are less
costly and damaging, that trying to apportion blame is a fruitless and
inherently non-justiciable task and that defence is futile where one party has
decided that the marriage is over.”
17.
For reasons which I will explain, the subsection nowadays sets at a low
level the bar for the grant of a decree. The expectations therefore are that,
even when defended to the bitter end, almost every petition under the
subsection will succeed; that, in the interests again of minimising acrimony,
the petitioner will be encouraged at the hearing to give no more than brief
evidence in relation only to a few allegations of behaviour; and that then,
after an equally short riposte on behalf of the respondent by
cross-examination, oral evidence and submission, the court will deliver a brief
judgment, almost certainly culminating in the pronouncement of a decree. As Mr
Owens himself acknowledged when recounting the advice given to him, “Courts
rarely stand in the way of a party seeking a divorce”. Indeed the authors of
the No Contest report discovered no recent example, other than Mr Owens
himself, of a respondent to a defended suit who successfully opposed the grant
of a decree on some basis or other.
18.
Mrs Owens duly amended her petition. By alleged reference to her diary,
she gave 27 individual examples of the third and fourth allegations in her
petition that Mr Owens had been moody and argumentative and had disparaged her
in front of others. She cannot have thought that the time allowed for the
hearing would enable her to give evidence of more than a few of them. The
earliest of her examples was said to have occurred in 2013. So she chose not to
give any specific example of Mr Owens’ behaviour during the first 35 years of
the marriage or prior to the date of the initial draft petition. Perhaps there
was no such example which she could honestly give; or perhaps, on advice, she
did not regard it as necessary to do so. In his amended answer Mr Owens
admitted some of the alleged examples but sought to place them in a different
context; described some as exaggerated; and professed not to remember others.
He entered very few denials.
19.
At the outset of the hearing before the judge, which took place ten days
before he handed down his judgment, Mr Marshall QC, on behalf of Mrs Owens,
said that, although in her witness statement she had confirmed the veracity of
all 27 of the examples given in the amended petition, he proposed to focus only
on a very few of them. Mr Marshall did so; and, at the judge’s invitation, Mr
Dunlop, on behalf of Mr Owens, did likewise. Indeed, during his final
submission Mr Marshall, at the request of the judge, identified the four
examples on which he most relied. The result was that no evidence was put
before the judge in relation to most of the 27 examples, apart from the written
confirmation of their veracity on the part of Mrs Owens and from the mixture of
responses to them which Mr Owens had given in his amended answer and confirmed
to be true in his witness statement. It also follows that, although at one
point Mrs Owens told Mr Dunlop that Mr Owens had been making hurtful and
disparaging remarks to her long before 2012, in effect no evidence was given in
relation to the marriage prior to its two final years.
20.
In a short judgment written on six pages, to which I will refer in more
detail below, the judge announced at the outset that the petition was hopeless.
Having concluded that the marriage had broken down, he found that:
a)
all 27 of the pleaded examples of behaviour were at best flimsy;
b)
Mrs Owens had significantly exaggerated their context and seriousness;
c)
Mr Owens was “somewhat old-school”;
d)
Mrs Owens was more sensitive than most wives;
e)
three of the examples on which Mr Marshall had in particular relied (the
judge making no reference to the fourth) were isolated incidents, not part of a
persistent course of conduct on the part of Mr Owens;
f)
Mrs Owens had cherry-picked one of those examples, which illustrated her
approach;
g)
the three examples scarcely merited “criticism” of Mr Owens; and
h)
much the same could be said of the other 24 examples.
The Law
21.
This court, like the appellate committee of the House of Lords which
preceded it, has never had occasion to consider what the law requires a
petitioner to establish under the subsection. Its words largely speak for
themselves. But there are six judgments delivered in the lower courts which
helpfully illumine their effect. They are old authorities which date from a
period when controversy surrounding the establishment of a case under the
subsection was slightly less rare.
22.
First, Pheasant v Pheasant [1972] Fam 202. A husband petitioned
for divorce pursuant to section 2(1)(b) of the Divorce Reform Act 1969 (“the
1969 Act”), which came into force on 1 January 1971 and which was repealed when
the 1973 Act came into force on 1 January 1974. Section 1(2)(b) of the 1973 Act
is in the same terms as was section 2(1)(b) of the 1969 Act. The husband’s case
was that the wife had been unable to give him the demonstrative affection which
he needed. Ormrod J dismissed the petition. At p 206 he observed that
Parliament had not yet assimilated the law relating to marriage with the law of
partnership, which made different provisions both for dissolution and for the
resolution of financial issues consequent upon it. At pp 207-208 he construed
section 2(1)(b) as placing primary emphasis on the respondent’s behaviour
rather than on the petitioner’s personal idiosyncrasies. And at p 208 he asked
himself whether it was:
“reasonable to expect this
petitioner to put up with the behaviour of this respondent, bearing in mind the
characters and the difficulties of each of them, trying to be fair to both of
them, and expecting [of them] neither heroic virtue nor selfless abnegation …”
23.
Second, Livingstone-Stallard v Livingstone-Stallard [1974] Fam
47. Dunn J upheld a wife’s petition based on the subsection. At p 54 he
suggested that it was unhelpful to analyse the conduct required by the
subsection in terms of its gravity. While purporting to distance himself from
the question posed in the Pheasant case, Dunn J seems there to have
asked himself a closely similar question, namely:
“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?”
This question was approved and applied by the Court of
Appeal in O’Neill v O’Neill [1975] 1 WLR 1118 at 1125.
24.
Third, Thurlow v Thurlow [1976] Fam 32. A husband’s petition
under the subsection was based on the wife’s failure to contribute to the
running of the home and on her increasingly erratic behaviour, both of which
were the result of a severe neurological condition. At p 41 Rees J noted that,
before approving the form of words in section 2(1)(b) of the 1969 Act,
Parliament had considered and rejected a form of words that “the conduct of the
respondent has been so intolerable that the petitioner could not reasonably be
expected to continue or resume cohabitation”. At pp 41-43 he held that a
respondent’s failure to act could amount to behaviour for the purposes of the
subsection. Even more significantly, he held at p 46 that behaviour caused by
illness could fall within the subsection; and, in granting a decree to the
husband, he added that “no blame of any kind can be nor is attributed to the
wife”.
25.
Fourth, Stevens v Stevens [1979] 1 WLR 885. The facts were
unusual and, for present purposes, of interest. In March 1976 a judge had
dismissed the wife’s petition under the subsection. He had held that the
marriage had irretrievably broken down; that the wife had not established her
case of behaviour against the husband; and that the cause of the breakdown had
been her own behaviour. Thereupon the parties had continued to live under the
same roof. In due course the wife presented a second petition, again under the
subsection but relying only on the husband’s behaviour occurring after March
1976. Sheldon J granted her a decree. He adhered at p 887 to the earlier
findings that the marriage had irretrievably broken down prior to March 1976
and that the wife’s behaviour had caused it to do so. He held that he had to
consider “the totality of the evidence of the matrimonial history” and “the
cumulative conduct” of the husband. He found that following March 1976 the
husband had behaved in such a way that the wife could not reasonably be expected
to live with him; and he held that it was irrelevant that the husband’s
behaviour was not the cause of the breakdown of the marriage.
26.
Fifth, Balraj v Balraj (1981) 11 Fam Law 110. The husband’s
petition was based not on the subsection but on section 1(2)(e) of the 1973
Act, namely that he and the wife had lived apart for at least five years. The
Court of Appeal upheld the judge’s rejection of the wife’s opposition to the
grant of a decree, which was that it would result in grave hardship to her within
the meaning of section 5 of the 1973 Act. She had argued that the judge had
failed to pay sufficient regard to her subjective reaction, as a Hindu wife, to
the grant of a decree. In giving the leading judgment Cumming-Bruce LJ at p 112
offered an analogy:
“In behaviour cases … the court
has to decide the single question whether the husband (for example) has so
behaved that it is unreasonable to expect the wife to live with him. In order
to decide that, it is necessary to make findings of fact of what the husband
actually did and then findings of fact upon the impact of his conduct on that
particular lady. As has been said again and again between a particular husband
and a particular lady whose conduct and suffering are under scrutiny, there is
of course a subjective element in the totality of the facts that are relevant
to the solution but, when that subjective element has been evaluated, at the
end of the day the question falls to be determined on an objective test.”
27.
And sixth, Buffery v Buffery [1988] 2 FLR 365. A recorder had
dismissed a wife’s petition under the subsection on the basis that she had
failed to establish either that the husband’s behaviour had been grave and
weighty or that it had caused the breakdown of the marriage. The Court of
Appeal held that behaviour under the subsection did not have to be grave or
weighty. At p 367 May LJ said that “the gravity or otherwise of the conduct
complained of is of itself immaterial”. The court also reiterated what Sheldon
J had held in the Stevens case, namely that the 1973 Act did not require
the respondent’s behaviour to have caused the breakdown of the marriage. The
wife’s appeal was nevertheless dismissed on the basis that, even when judged by
reference to correct principles, her petition failed.
28.
As in effect the Court of Appeal in the present case has held, and as
Mrs Owens now concedes, these six old authorities continue to provide a correct
interpretation of the subsection. The inquiry has three stages: first (a), by
reference to the allegations of behaviour in the petition, to determine what
the respondent did or did not do; second (b), to assess the effect which the
behaviour had upon this particular petitioner in the light of the latter’s
personality and disposition and of all the circumstances in which it occurred;
and third (c), to make an evaluation whether, as a result of the respondent’s
behaviour and in the light of its effect on the petitioner, an expectation that
the petitioner should continue to live with the respondent would be unreasonable.
29.
Resolution explains that its members are gravely concerned about the
continued existence of a law which in substantial part links entitlement to
divorce to the making of allegations by one spouse against the other. It argues
that the State thereby actively precipitates dispute. Pending wholesale reform
of section 1 of the 1973 Act, it clearly wishes to mitigate what it regards as
the malign effect of the subsection. It therefore submits that historically the
lower courts have placed a flawed construction on it. It contends, as in effect
Mrs Owens contended in her grounds of appeal but no longer contends, that “the
entire focus should be on the reaction of the petitioner to the respondent’s
behaviour”; and that, if the petitioner genuinely cannot continue to live with
the respondent, “it might well be thought that the petitioner cannot reasonably
be expected to live with the respondent”. But 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. With respect to Resolution, its suggested interpretation of
the subsection is incorrect. So also, for the reasons given by the President in
paras 76 to 81 of his judgment, is its suggestion (not further maintained by
Mrs Owens in her grounds of appeal to this court) that either the subsection if
taken alone or section 1 of the 1973 Act if taken as a whole might be
incompatible with the rights of petitioners under article 8 of the European
Convention on Human Rights.
30.
But, although its interpretation by these courts remains correct even
after 40 years, the application of the subsection to the facts of an individual
case is likely to change with the passage of the years. In R (Quintavalle) v
Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687, Lord Bingham
of Cornhill said:
“9. There is, I think, no
inconsistency between the rule that statutory language retains the meaning it
had when Parliament used it and the rule that a statute is always speaking. If
Parliament, however long ago, passed an Act applicable to dogs, it could not
properly be interpreted to apply to cats; but it could properly be held to
apply to animals which were not regarded as dogs when the Act was passed but
are so regarded now. The meaning of ‘cruel and unusual punishments’ has not
changed over the years since 1689, but many punishments which were not then
thought to fall within that category would now be held to do so.”
31.
In Miller v Miller, McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, the appellate committee developed a new approach to the exercise of
the discretionary jurisdiction under the 1973 Act to make financial orders
following divorce. It was in that context, somewhat similar to the present,
that both Lord Nicholls of Birkenhead at para 4 and Lord Hope of Craighead at
para 115 justified the new approach by reference to the change in social and
moral values from one generation to the next.
32.
I cannot readily think of a decision which more obviously requires to be
informed by changing social norms than an evaluation whether, as a result of
the respondent’s behaviour and in the light of its effect on the petitioner, an
expectation of continued life together would be unreasonable.
33.
In Ash v Ash [1972] Fam 135 Bagnall J suggested at p 140:
“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
similarly addicted; … and if each is equally bad, at any rate in similar
respects, each can reasonably be expected to live with the other.”
The judge’s suggestion now seems almost comical. In the two
specific examples quoted, surely each spouse would nowadays be entitled to a
decree against the other under the subsection.
34.
But the relevant social norm which has changed most obviously during the
last 40 years has, I suggest, related to our society’s insistence upon equality
between the sexes; to its recognition that marriage is a partnership of equals;
and, specifically, to its assessment of the moment when a husband’s behaviour,
in the light of its effect on his wife, begins to make it unreasonable to
expect her to continue to live with him. For a wife that moment now arrives
earlier than it did before; it now arrives at the same time for both sexes in
equivalent situations. In Priday v Priday [1970] 3 All ER 554, which was
decided months before section 2(1)(b) of the 1969 Act came into force,
Cumming-Bruce J dismissed a husband’s petition for divorce on the ground of the
wife’s cruelty under section 1(1)(a)(iii) of the Matrimonial Causes Act 1965.
But, in recounting the history of the marriage, the judge also commented at p 557
on the conduct of the husband towards the wife:
“Up to 1968 [the husband]
sometimes attempted intercourse by force in the hope that if he succeeded in
intercourse, even by such method, that ... might stimulate her again
emotionally to return to reality, but that was unsuccessful and he naturally
abstained from such attempts. I am satisfied that his recourse to force in
intercourse was not in any sense culpable but was a desperate attempt on his
part to re-establish what might have been an important element in matrimonial consortium.”
Today such an assessment would be
inconceivable.
35.
Eight years ago, in Miller Smith v Miller Smith in the Court of
Appeal, [2009] EWCA Civ 1297, [2010] 1 FLR 1402, I observed at para 15:
“Our society in England and Wales
now urgently demands a second attempt by Parliament, better than in the
ill-fated Part II of the [Family Law Act 1996], to reform the five ancient
bases of divorce; meanwhile, in default, the courts have set the
unreasonableness of the behaviour required to secure the success of a petition
on the second basis, namely pursuant to section 1(2)(b) of the Act of 1973,
even when defended, at an increasingly low level.”
36.
The ease with which a petitioner can nowadays establish a case under the
subsection, if undefended, led the President in his judgment to speak of its
widespread dishonest and collusive manipulation. If the allegations of
behaviour are not true, there is indeed dishonesty and, by not challenging
them, a respondent might loosely be said to collude with it; and unfortunately
such dishonesty is unlikely to be uncovered when, by reference only to the
papers filed, the court decides pursuant to rule 7.20(2)(a) of the FPR whether
to certify that the petitioner is entitled to a decree. But my reference in the
Miller Smith case to the greater availability of a decree under the
subsection was intended to recognise not its abuse in some cases but a
legitimate enlargement of its application reflective of changing social norms
in other cases.
37.
Nevertheless, in making that reference, I used a phrase which I regret:
for I referred to the “unreasonableness of the behaviour”. “Unreasonable
behaviour” has always been the family lawyer’s shorthand description for the
content of the subsection. But it is wrong. The subsection requires not that
the behaviour should have been unreasonable but that the expectation of
continued life together should be unreasonable. Within about a year of the
advent of the 1969 Act, the error inherent in the shorthand description was
exposed: Katz v Katz [1972] 1 WLR 955, 960. Indeed, in Bannister v
Bannister (1980) 10 Fam Law 240, in which the Court of Appeal allowed a
wife’s appeal against the dismissal of her petition for divorce, Ormrod LJ
observed at p 240:
“The learned judge, I am afraid,
fell into the linguistic trap which is waiting for all of us when we speak of
‘unreasonable behaviour’ in relation to section 1(2)(b) cases. The basis of
this subsection is not ‘unreasonable behaviour’ but behaving in such a way that
the petitioner ‘cannot reasonably be expected to live with the respondent’, a
significantly different concept. It is difficult to find an alternative
shorthand expression for this subsection, so we all talk, inaccurately, of
‘unreasonable behaviour’.”
The Judgment
38.
In the course of his short judgment in the present case the judge
referred five times to “unreasonable behaviour”. Questions arise. Was he
looking for behaviour objectively worse than what the law requires? What lay
behind his search for “beef”? Was he looking for behaviour for which he might
“blame” Mr Owens, contrary to the decision in the Thurlow case cited at
para 24 above? Was he looking for behaviour of “gravity”, contrary to the
decision in the Buffery case cited at para 27 above? No doubt blameworthy
or grave behaviour often makes it more likely that the third-stage evaluation
under the subsection will be that an expectation of continued life together
would be unreasonable. But such is not a pre-requisite of a successful petition
under the subsection.
39.
It seems, however, that the judge gave himself a correct self-direction,
so far as it went. He said:
“In determining the question
whether this respondent has behaved in such a way I apply an objective test -
what would the hypothetical reasonable observer make of the allegations - but
with subjective elements. I have to take into account the individual
circumstances of the spouses and the marriage …”
The judge then proceeded to repeat the question which Dunn
J had asked himself in the Livingstone-Stallard case, set out at para 23
above.
40.
The President described the judge’s self-direction as “entirely
adequate”. But did it go far enough? Did he remind himself of the need, noted
in the Stevens case cited at para 25 above, to consider the behaviour of
Mr Owens as a whole? Or equally, of the need to consider the effect of all of
it on Mrs Owens cumulatively? In Jamieson v Jamieson [1952] AC 525 the
appellate committee reversed the decision of the Court of Session that a wife’s
allegations of cruelty should be struck out as irrelevant and insufficient.
Lord Normand suggested at pp 535-536:
“that it does not do justice to
the averments to take up each alleged incident one by one and hold that it is
trivial or that it is not hurtful or cruel … The relationship of marriage is
not just the sum of a number of incidents …”
Equally, as Hallett LJ pointed out in the present case,
behaviour which the other spouse may consider trivial in the context of a happy
marriage may bear more heavily upon a spouse trapped in an unhappy marriage. In
his judgment the President noted that the judge had failed to make explicit
reference to the cumulative effect of Mr Owens’ behaviour on Mrs Owens, of
which indeed she had given copious evidence. He said, however, that once he had
surveyed the whole of the judge’s judgment, including in particular the
reference to “the whole of the circumstances” in the question first articulated
by Dunn J, he had become satisfied that the judge had paid sufficient regard to
the cumulative effect of it on Mrs Owens, whom he had acknowledged to be more
sensitive than most wives. But had the judge heard enough evidence to be able
to appraise the cumulative effect on Mrs Owens of the conduct, taken as a
whole, upon which she relied? How could he find the three examples of behaviour
to which he made specific reference to be no more than isolated incidents, not
part of a persistent course of conduct, in circumstances in which it had been
agreed to be convenient to place so many other pleaded examples, albeit
verified in writing by Mrs Owens, to one side? This, says Mrs Owens, represents
appealable error even in this court.
41.
It was this court itself which, at the hearing, raised with counsel
another possible cause for concern about the judgment. It is clear from the
cases of Stevens and Buffery, cited in paras 25 and 27 above,
that section 1 of the 1973 Act does not require the behaviour under the
subsection to have caused the breakdown of the marriage. Nevertheless Mr Owens
and his advisers energetically denied that any behaviour on his part had caused
the breakdown of the marriage. In his witness statement Mr Owens twice averred
that if, which he did not accept, the marriage had broken down, the breakdown
had not been the result of his behaviour; and his counsel’s skeleton argument before
the judge spoke of the possibility “that the marriage was at an end but not due
to [Mr Owens’] fault”. This court’s question to counsel was whether these no
doubt innocent misrepresentations of the nature of the inquiry under the
subsection had misled the judge into considering that Mrs Owens needed to
establish that the alleged behaviour of Mr Owens had caused the marriage to
break down. For, in adverting briefly to the allegation in the petition, never
particularised, that Mr Owens had prioritised his work over life at home, the
judge first pointed out that Mr Owens had in effect been retired for many
years; and then, in a passage which Mr Dyer QC on behalf of Mr Owens
acknowledged to be unfortunate and difficult for him to interpret, continued:
“The idea that the lifestyle,
whatever it may have been, now contributes to the breakdown of the marriage is
fanciful. The ground is no more than a conventional form of words with no
application to the present or the breakdown of the marriage at all.”
Moreover, at the end of his judgment, the judge explained
his crucial conclusion in the following few words:
“I find no behaviour such that the
wife cannot reasonably be expected to live with the husband. The fact that
she does not live with the husband has other causes. The petition will be
dismissed.” (italics supplied)
The facts remain, however, that Mr Marshall on behalf of
Mrs Owens never argued in the Court of Appeal that the judge had fallen into
this possible error; that the Court of Appeal did not see fit to raise it of
its own motion; and that, even after it was raised at the hearing in this
court, Mr Marshall did not squarely rely on it. The judge has long experience
of family law (albeit, as he said, that he had previously tried only one
defended suit for divorce) and the view must have been taken that the quoted
passages represent too weak a foundation for a conclusion that he had fallen
into elementary error. In such circumstances it is inappropriate for this court
further to consider the point.
42.
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.
43.
But uneasy feelings are of no consequence in this court, nor indeed in
any other appellate court. The advantages of the judge in reaching the relevant
conclusions need no rehearsal. The complaints of Mrs Owens about his judgment
have already been analysed and dismissed by members of the Court of Appeal who
have unrivalled authority in this sphere. Permission for her further appeal to
this court was founded upon a novel interpretation of the subsection which at
the hearing - and in the event correctly - she abandoned. As the above
paragraphs testify, this court is not precluded from proceeding to address her
remaining complaints, in particular in relation to the judge’s evaluation at
the third stage of the inquiry; but in the above circumstances it is most
unlikely to be appropriate for it to intervene.
The Conclusion
44.
The appeal of Mrs Owens must be dismissed. She must remain married to Mr
Owens for the time being. Were she to continue to live apart from Mr Owens
until 2020, he would surely have no defence to a petition then brought under
section 1(2)(e) of the 1973 Act on the basis that they had lived apart for a
continuous period of five years.
45.
Parliament may wish to consider whether to replace a law which denies to
Mrs Owens any present entitlement to a divorce in the above circumstances.
Lady Hale:
46.
I have found this a very troubling case. 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.
47.
Lord Wilson has explained very clearly what that law requires. He sets
out the three stages of the inquiry at para 28. He explains at para 30 that the
application of that inquiry to the facts of an individual case is likely to
change with the passage of the years. Expectations of whether it is reasonable
to expect one spouse to continue to live with the other, in the light of the
way the latter has behaved and its effect upon the former, have indeed changed
over the 47 years since the Divorce Reform Act 1969 came into force. As Lord
Wilson observes at para 34, the social norm which has changed most obviously
over that time is the recognition that marriage is a partnership of equals.
Indeed, the equality of the sexes is now also a legal norm, reflected in developments
not only in family law but also in equality and anti-discrimination law.
48.
With that statement of the law in mind, I have several misgivings about
the trial judge’s judgment in this case. The first is his repeated reference to
“unreasonable behaviour”. This is a convenient but deeply misleading shorthand
for a very different concept. And it can so easily lead into error. In
particular, it can lead to a search for “blame”, which is not required. Indeed,
those of us who have made or supported proposals for reform of the law over the
years may not have helped by referring to “no-fault” divorce when the current
law does not require fault. Worse still, referring to “unreasonable behaviour”
can also lead to a search for who is the more to blame, which is also
irrelevant. The Divorce Reform Act 1969 swept away the concepts in the old law
relating to matrimonial “offences” which did make an attempt, however crude, to
work out who was the more to blame. The current law simply does not do this. It
is, for example, no answer to a petition based on adultery that the petitioner
had been unfaithful and unloving for years or that the couple had not lived
together for a long time. We should be referring to the “facts” in section
1(2)(a) and (b) as “conduct-based” rather than “fault-based”.
49.
My second misgiving is that the judge appears, at least from the
passages quoted by Lord Wilson in para 41, to have thought that the behaviour
complained of had to be the cause of the breakdown of the marriage. That is, as
Lord Wilson has explained, simply not the law. The marriage has to have broken
down irretrievably. One of the five “facts” prescribed in section 1(2)(a) to
(e) of the 1973 Act has to be proved. But the Act does not require that there
be a causal connection between them. It is, for example, most unlikely that the
fact that a couple have been living apart for five years (fact (e)) is the
cause of the breakdown of their marriage: it will have broken down for other
reasons - often attributable to the petitioner - and long ago.
50.
But my third misgiving is the most troubling of all. 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. There is an analogy here with
constructive dismissal cases in employment law. As Langstaff J (President) in
the Employment Appeal Tribunal has put it (in Ukegheson v London Borough of
Haringey, UKEAT/0312/14/RN, at paras 30-31):
“The meaning that correspondence
or observations have when they are directed by one person to another may often
depend very much on the context of the relationship between the two ...
[Looking at incidents in isolation] is perhaps to fail to see the eloquence of
the story painted by the whole of the series of events and to focus instead
upon events taken individually as though they were in silos. In a constructive
dismissal case arising out of a poisoned relationship between parties, what
matters is the totality of the picture rather than any individual point along
the way.”
The problem, as Lord Wilson has shown, is that this hearing
was not set up or conducted in a way which would enable the full flavour of
such conduct to be properly evaluated. But what are we to do about it?
51.
This court is not a court of error. If the law is clear, permission to
appeal is not normally given, either by this court or the court below, simply
because the law may have been misapplied in the individual case. In this case,
as Lord Wilson has explained, permission to appeal was given because it was
argued that it was the effect of the respondent’s behaviour, rather than the
behaviour itself, which should make it unreasonable to expect the petitioner to
live with the respondent. That argument is no longer pursued.
52.
However, permission having been given to come to this court, we would in
my view be failing in our duty if we were not to correct any error into which
we found that the courts below had fallen. I am concerned that the trial court
did indeed fall into error in the three respects identified earlier. Are we
then to do nothing? Or are we to allow the appeal? And if so can we decide it
ourselves or should we send it back to be heard again? Given that the principal
problem is that the hearing did not enable the court to evaluate the petition
as a whole and in context, it seems to me that the case would have to go back
for a rehearing. We cannot assume that a properly instructed and constructed
hearing would inevitably lead to a decree being granted.
53.
In my view therefore, the correct disposal of this appeal would be to
allow the appeal and send the case back to be tried again. However, in the
appellant’s written case, it was argued that “it cannot be in the interests of
the parties or in accordance with the overriding objective for there to be a
further contested hearing” (para 94). Orally, counsel viewed such a prospect
with “dread”. It would place the appellant in an unenviable dilemma, given
that, in February 2020, five years will have elapsed from their separation and,
should the petitioner still wish to be divorced, it is difficult to see that
there would be any obstacle standing in her way.
54.
I am therefore reluctantly persuaded that this appeal should be
dismissed.
Lord Mance:
55.
I agree that this appeal should be dismissed. As to the law, I agree
with paras 21-37 of Lord Wilson’s judgment. As to its application to the facts,
my reasons can be put in like terms to those contained in Lord Wilson’s summary
in para 43. I also agree with his conclusions and observations in paras 44-45.
56.
The judge stated and explained the legal test correctly in his para 10.
His references, when summarising or referring to the evidence, to allegations
of “unreasonable behaviour” adopted an inaccurate shorthand which is evidently,
though regrettably, common in the profession. But there is no reason to think that
the judge did not ultimately apply the correct test to the allegations. He
expressly applied it when reaching his conclusions in his para 15.
57.
The judge, in the course of explaining the correct test in para 10,
identified the need to take into account the individual circumstances of the
spouses and the marriage - “the whole of the circumstances and the characters
and personalities of the parties”. He went on find that “all” of the
allegations were at best flimsy, and, having heard both parties give evidence,
that Mrs Owens had exaggerated their context and seriousness to a significant
extent. He then considered various batches of allegations and three allegations
which counsel for Mrs Owens ranked foremost in terms of seriousness. He
concluded that these were all insignificant and that much the same could be
said of all the other allegations and of Mrs Owens’ case generally. It appears
fanciful to suppose that it would have made any difference to the judge’s
assessment if he had also expressly put and answered the question whether, even
if the allegations were individually insignificant, they were cumulatively
significant. The judge clearly formed the view that there was nothing in the
case overall.
58.
I share Lord Wilson’s unease in paras 13-19 and 42 about an apparently
conventional procedure, whereby this defended divorce petition was listed for
what, in common law terms, might be regarded as a relatively short period - in
this case one day. But it was Mrs Owens who through counsel submitted that even
that period was not required, and that only half a day would suffice, while Mr
Owens’ case was that three days were required. The case was conducted, and the
judge was invited to decide it, on the basis of his direction for a hearing of
one day, not appealed as such. I do not think that we can now interfere to say
that it was not possible in the circumstances to have a fair determination or
for the judge to reach the overall conclusions which he did.
59.
Finally, I do not think that the judge’s judgment is open to the
construction (raised with counsel by the Supreme Court) that he thought that
the husband’s conduct had to cause the breakdown. Considering the allegation
that the husband’s working lifestyle had caused Mrs Owens “much unhappiness and
made her feel unloved”, the judge said (para 7) that:
“The idea that the lifestyle,
whatever it may have been, now contributes to the breakdown of the marriage is
fanciful.”
In his conclusions in para 15, he said:
“I find no behaviour such that the
wife cannot reasonably be expected to live with the husband. The fact that she
does not live with the husband has other causes.”
60.
The judge’s use of the word “contributes” in the first passage is
consistent with his recognising that, even though the actual breakdown may have
had some other cause, the husband’s behaviour may still have been such that the
petitioner could not be expected to live with him. After expressly rejecting,
in the first sentence quoted above from para 15, Mrs Owens’ case that the
husband’s behaviour had been such, the judge was in my view doing no more in
the second quoted sentence than responding to the obvious factual or evidential
question: if the husband’s conduct was not such as the wife could not
reasonably be expected to put up with, why is she living apart from him? There
is to my mind no inference that he thought that the husband’s behaviour must
not only be such that the wife could not reasonably be expected to live with
him as a matter of fact, but also that it must as a matter of law be the actual
reason why she had determined to live, or was living, apart from him.
