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The Divorce Trap: Life After Owens v Owens

Georgina Rushworth, Family Law Barrister at Coram Chambers, where she specialises in divorce and its financial consequences, considers the implications of the recent Supreme Court decision

Georgina Rushworth, Family Law Barrister at Coram Chambers

As the dust begins to settle in the wake of the hotly anticipated decision of the Supreme Court in Owens v Owens [2018] UKSC 41 heard on 17th May 2018 and handed down on 25th July 2018; in which the Supreme Court considered for the first time, what the law requires a petitioner for divorce to establish under section 1 of the Matrimonial Causes Act 1973 ("MCA 1973"), it is time to reflect and consider what the judgment means.

History of the Case
Mr and Mrs Owens, aged 80 and 68 respectively, were married in 1978.  They have two adult children.

Mrs Owens had first consulted solicitors about a divorce, in June 2012. In December 2012, Mrs Owens delivered a draft petition to Mr Owens but that was not pursued.  In February 2015, Mrs Owens left the family home and in May 2015, Mrs Owens filed the petition which was the subject of these proceedings, seeking a divorce under section 1(2)(b) of the MCA 1973.

The statement of case comprised five paragraphs couched in "anodyne" terms. Mrs Owens alleged as follows:

"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." [para 10]

At a case management hearing ("the CMH") in October 2015, Mrs Owens was permitted to amend her petition to expand on the allegations.  The court also provided for statements from both parties and listed the matter for one day, directing that there should be no witnesses other than the parties themselves.  Mrs Owens had proposed half a day; Mr Owens three days.

Mrs Owens duly amended her petition.  She provided 27 examples of the third and fourth allegations detailing Mr Owens' alleged behaviour from 2013 over a 2-year period. At the hearing, a decision was made to focus on four of them.  It is noted by the Supreme Court that Mr Owens entered very few denials, albeit he disputed the context.

The matter came before His Honour Judge Tolson QC.  Giving what is recorded in the lead judgment of Lord Wilson, to be a short judgment of 6 pages, His Honour Judge Tolson QC declared that the petition was "hopeless".  He found that the allegations were "flimsy", that Mrs Owens had "exaggerated their context and seriousness", that she was "somewhat old school", that she was "more sensitive than most wives", that the three incidents relied on were "isolated" and "not part of a persistent course of conduct", that Mrs Owens had "cherry picked" one of those examples, which illustrated her approach" and that the examples (in fact all) "scarcely merited criticism." [cf para 21].  HHJ Tolson QC concluded that whilst it was clear and he found as a fact, that the marriage had irretrievably broken down; Mrs Owen could not continue to live with Mr Owens, he found no behaviour such that she could not reasonably be expected to live with him. He stated that (t)he fact that she did not live with the husband has other causes" [cf para 59].

Mrs Owens appealed. On March 24th 2017, the Court of Appeal, comprising Sir James Munby, Lady Justice Hallet and Lady Justice Macur rejected the appeal, albeit one might glean their reticence from the judgment given by Lady Justice Hallett, who recorded that she reached that conclusion, "with no enthusiasm whatsoever" [para 99].

Mrs Owens appealed to the Supreme Court; Resolution were given permission to Intervene but by written submissions only.  The Court, comprising Lady Hale, Lord Mance, Lord Wilson, Lord Hodge and Lady Black dismissed Mrs Owens' appeal, albeit Lady Hale concludes that she did so with "reluctance" [para 54] and there is a common sense of unease.

The lead judgment is given by Lord Wilson (with whom Lord Hodge and Lady Black agreed) and separate judgments by Lady Hale and Lord Mance.  The lead judgment concludes with the Court's express recognition that in dismissing the appeal, the effect is that Mrs Owens must remain trapped in a marriage, which she wishes were at an end, and with a clear invitation to Parliament to consider reforming a law which is no longer fit for purpose [paras 44-45].
What Mrs Owens had to prove: The Current Law
Section 1 of the MCA 1973 provides as follows:

(1) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –

a. …

b. That the respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.

(3) On a petition for divorce it shall be the duty of the Court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the Respondent

(4) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 (…), grant a decree of divorce.

It was the opportunity to consider the interpretation of this subsection, specifically what the law required Mrs Owens to establish under it, which had at the permission stage, grasped the Supreme Court's attention, not having had a previous opportunity to do so and the authorities being few and far between; limited to the six historic judgments considered by the Court in reaching its decision [cf paragraphs 22-27].  As is expanded upon below, the Court was unanimous, that these decisions provide the correct interpretation of the subsection, requiring a three-stage inquiry as follows:

"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 of 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." [para 28]

The Case before the Supreme Court
One assessment of the Supreme Court decision might be that the outcome was rather a disappointment.  The principle ground of appeal, so as to require reinterpretation of section 1(2)(b) MCA 1973, with focus to be placed on the effect on the Petitioner, was not pursued by Mrs Owens' legal team, Counsel for Mrs Owens conceding, and the Supreme Court assess "rightly" [para 43], that the current interpretation of the subsection, requiring a three-stage inquiry was correct.

Lord Wilson acknowledges that Resolution pursued the argument in their written submissions, however, in expressing the view of the majority, he confirms that that the construction which Resolution advanced is incorrect and held that the subsection correctly interpreted could not ignore the behaviour of the Respondent. The Court also dismisses the suggestion that there was any incompatibility with Article 8 of the European Convention on Human Rights. 

There is a concession by Lord Wilson, that the application of the facts of the individual case will change with the passage of time [para 30 – 31] particularly with respect to the third line of inquiry, whether an expectation of continued life together is unreasonable and that leads us into what had previously been referred to, by Ormerod J in Bannister v Bannister (1980) 10 Fam Law 240 as "the linguistic trap." [p240].  Admitting that he is equally at fault in using the phrase, Lord Wilson confirms that the shorthand term "unreasonable behaviour" is wrong [para 37] stating:

"The subsection requires not that the behaviour should have been unreasonable but the expectation of continued life together should be unreasonable" [para 37]

Arguably, this poses the question, what then is the behaviour?  That remains at large.

Whilst  confirming that His Honour Judge Tolson QC, despite using the now illicit phrase five times, gave himself the correct self-direction Lord Wilson does express " uneasy" feelings in respect of the lower court, including whether Mrs Owens had been failed by the almost summary procedure conventionally adopted for a defended divorce suit [para 42] and whether the judge had heard enough to appraise the cumulative effect of the behaviour on Mrs Owens and in respect of aspects of the judge's findings, however he stated, these were not the consequence of this Court [para 43], Lady Hale's uneasiness sounds louder.

Lady Hale's separate judgment makes her lack of relish with the approach the judge at first instance had taken clear.  Agreeing with the lead judgment in respect of the law and its construction, Lady Hale refers to being "troubled" by the trial judge's repeated reference to unreasonable behaviour. She states:

"This is a convenient but deeply misleading shorthand for a very different concept. 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." [para 48]

The concept of what constitutes "behaviour" becomes perhaps yet more elusive. 

Lady Hale also raises concern that HHJ Tolson QC appears to have thought that the behaviour complained of had to be the cause of the breakdown, which she, in agreement with Lord Wilson confirms "is simply not the law" (paragraph 49). She expands:

"One of the five "facts" prescribed in the section 1(2)(a) - (e) has to be proved.  But the Act does not require that there be causal connection between them" [para 49]

Ultimately however, she shares the misgivings expressed in the lead judgment regarding the way in which the hearing was set up and, as a consequence, expresses that her preferred approach would be to allow the appeal and send the case back to be tried again.  Having regard to the unsurprising "dread" with which Counsel for the Wife greeted this prospect on behalf of Mrs Owens, that was not pursued.  Lady Hale confirms that she was "reluctantly persuaded" that the appeal should be dismissed.

Lord Mance delivered a separate judgment, concurring with the lead judgment in respect of the law, and its application.  He states, contrary to Lady Hale, that there is no reason to think that the trial judge, when using the term "unreasonable behaviour" did not apply the correct test [ para 56].

Notably, he does not share the misgivings of the lead judgment and Lady Hale in respect of the judge's assessment of the allegations, stating:

"it appears fanciful to suppose 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 a view that there was nothing in the case overall" [para 57].

Lord Mance does however share the "unease" expressed in the lead judgment and Lady Hale's about what he refers to as an "apparently conventional procedure, whereby a defended divorce petition was listed for what, in common law terms, might be regarded as a relatively short period – in this case one day", in doing so though he notes that it was Mrs Owens who through Counsel submitted that even that was not required [para 58]. 

In concluding, however, he also departs from Lady Hale in her assessment that the trial judge had thought that the husband's conduct had to cause the breakdown [para 60].

Where do we go now?
Whilst the outcome has been met with disappointment in virtually all quarters, the decision is of value to practitioners, albeit it raises its own conundrum.  James Turner QC who acted for Resolution has expressed "puzzlement" in respect of what now is the "behaviour" and if not causally related to the breakdown of the marriage, what is the need to prove it?  The answer must be reform of the law.

What then does the decision mean for us in the interim, pending such reform?

Firstly, the commonplace, shorthand phrase "unreasonable behaviour" must be forgotten. So too, must the notion of "fault-based divorce" and be replaced with "conduct based".

Second, the court makes clear that the practice of drafting anodyne particulars is to be commended. Lord Wilson states:

"The judge remarked that, like the petition which she had 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 guidelines of para 9.2.1 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…"
[para 7]

Mrs Owen's petition is said to be in appropriately anodyne terms [para 10].

Thirdly and finally, the Supreme Court has confirmed that the correct interpretation of section 1(2)(b) of the MCA 1973 requires a three-stage approach.  Bearing in mind that application of that inquiry will change over time.  It might be recollected, that until the mid 1950s divorcees were banned from entering the Royal Enclosure at Ascot.  Times change. 

On the 25 July 2018, the same date that judgment was delivered, the Ministry of Justice twitter account, tweeted as follows:

"Responding to Owens versus Owens @UKSupremeCourt judgment: The current system of divorce creates unnecessary antagonism in an already difficult situation. We are already looking closely at possible reforms to the system."

At the same time, it is noted that the Divorce (etc) Law Review Bill introduced in House of Lords, draft legislation designed to encourage the Government to make the first major changes was published on 18 July 2018, when it received its first reading in the House of Lords. The date of its second reading is yet to be confirmed. Professor Liz Trinder has suggested that the timing was deliberate. This might suggest that the overall impact of the Supreme Court's decision may prove to be more positive than it initially appeared to be.