On 25th July 2018 the Supreme Court reluctantly ruled in favour of the husband in a case relating to a divorce under Section 1(2)(b) of the Matrimonial Causes Act 1973. This section allows a spouse to divorce the other on the basis that the other party has behaved in such a way that the Petitioner cannot reasonably be expected to live with them. Whilst commonly referred to as ‘unreasonable behaviour’ the legal team on behalf of the wife pointed out that these words are not actually used within the section.
The case concerns a 68-year-old wife and an 80-year-old husband. They had married in January 1978 and separated in February 2015 when the wife left the family home. They have two adult children.
In line with the Family Law Protocol, solicitors for the wife filed a divorce petition in May 2015 containing mild examples of the husband’s behaviour, including that he suffered from mood swings, did not show any love or affection and did not support her role as a home maker. These are fairly standard particulars.
The difficulty for Mrs Owens came when her husband sought to defend the divorce, which is unusual. Mrs Owens then amended her divorce petition, significantly expanding on her examples of her husband’s behaviour and providing 27 allegations. Only four of these allegations were explored in evidence at a one-day trial and these examples are alleged to demonstrate the husbands controlling approach to the wife in front of third parties.
The judge at first instance, HHJ Toulson QC rejected the wife’s petition, referring to it as hopeless. The allegations were not sufficient to demonstrate that the husband behaved in such a way that the wife could not reasonably be expected to live with him. The allegations were described as ‘at best flimsy’.
Sir James Mumby gave the leading judgement in the Court of Appeal. He summarised the current legal position, which sets out that a Petitioner must demonstrate that a reasonable person would conclude that this particular Respondent has behaved in a way that this particular Petitioner cannot reasonably be expected to live with the Respondent, taking into account all of the circumstances and the history of the marriage. HHJ Toulson QC’s decision was upheld. Human Rights arguments were also launched on behalf of the wife, but the Court of Appeal decided that there was no contravention to the Petitioner’s right to respect for private and family life or her right to marry. It was clarified that a right to marry was never intended to include a right to divorce or the right to a favourable outcome.
The Supreme Court reluctantly dismissed Mrs Owen’s appeal. The Supreme Court did, however, raise questions about whether HHJ Toulson QC has heard enough evidence to determine the effect of the wife’s allegations on her having only examined four of her 27 allegations.
There has for several years been campaigns from family lawyers for a no-fault divorce system. This case serves to advance the calls for reform. At the moment, in order to proceed with a divorce a party must petition either on the basis of the other party’s adultery, behaviour (as in this case) two years separation with consent (Mr Owens will not provide his consent), five years separation without consent or desertion. As it currently stands, Mrs Owens cannot petition for a divorce based on five years separation without consent until February 2020, at which point she will be 70 years old.
This also means that for Mr and Mrs Owens, the financial matters arising from their divorce cannot be finalised by a Clean-Break Consent Order until the Decree Nisi has been pronounced, presumably in mid-2020. This provides uncertainty for both parties. Mrs Owens is therefore trapped in an unhappy marriage for a further period of two years.
This decision comes in the same week that there has been media interest in the change in laws relating coercive control. When considering the limited information that we have about Mrs Owens examples of her husband’s behaviour, we know that he deliberately put her down, both privately and in public, which is one of the examples of coercive and controlling behaviour.
This situation has arisen only because Mr Owens has sought to defend the divorce petition. In most cases, a divorce petition on the basis of unreasonable behaviour proceeds because the other party does not seek to defend it. However, there are cases, particularly those involving incidents of domestic abuse where the Petitioner does not want to make extreme allegations of behaviour for fear of reprisals from the Respondent. It is hoped that this decision will prompt reform for the no fault-based divorce system which family lawyers have sought for many years.
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