O’Neill v O’Neill

Under the Matrimonial Causes Act 1973, section 1(2)(b), the question whether a spouse could reasonably be expected to live with the respondent is prima facie objective. It must nevertheless be assessed in the context of the marriage’s history and the actual spouses. The Prayer Book’s better-or-worse standard is not the statutory test. Personality may explain unreasonable conduct but does not excuse it. Prolonged serious domestic inconvenience, or a single sufficiently cruel act, may satisfy the statutory threshold. Once the behaviour ground is established, divorce follows unless the respondent shows that the marriage has not irretrievably broken down.

The wife petitioned for dissolution under the Matrimonial Causes Act 1973, section 1(2)(b), alleging that the husband’s behaviour made it unreasonable to expect her to live with him. After a 21-year marriage, she left the matrimonial home with the children. The husband defended the petition.

His Honour Judge Polson, sitting as an additional judge of the Family Division, accepted the proved conduct but dismissed the petition. He treated it as conduct which a wife could reasonably tolerate and regarded the test as objective. The appeal challenged that legal approach and the assessment of the evidence. The central issue was how the statutory phrase should be applied to the marriage and the parties, and whether the proved conduct met the statutory threshold.

Unanimous outcome. The appeal was allowed, a decree nisi was pronounced, and costs were awarded here and below, not to be enforced without further order. The certificate of satisfaction and ancillary matters were left to a different judge at Exeter.

1. Correct statutory approach. Lord Justice Cairns held that the statutory words, rather than the language of the Prayer Book, supplied the test. The phrase “reasonably be expected” is prima facie objective, but the court must consider the history of the marriage and the individual spouses before it. The assessment is not based on an abstract reasonable person. Cairns LJ relied on Gollins v Gollins (1964) Appeal Cases 644. Lord Justice Roskill adopted the formulation in Livingston-Stallard v Livingston-Stallard (1974) 3 Weekly Law Reports 302, asking whether, in the whole circumstances and having regard to the parties’ characters and personalities, the statutory conclusion followed.
2. Personality and conduct. The husband’s personality and the unhappy background of the marriage were relevant context, but they did not make the later conduct trivial. Roskill LJ emphasised that a personality defect might explain conduct but could not excuse it or make it less unreasonable.
3. Application to the evidence. The prolonged condition of the home, caused by extensive work under the floors, seriously inconvenienced the family and prevented ordinary domestic and social life. The husband’s letter casting unfounded doubt on the children’s paternity was independently grave. Cairns LJ held that the conduct, including the letter taken alone, justified the conclusion that the wife could not reasonably be expected to continue living with her husband. The trial judge had failed to assess the evidence and the letter correctly.
4. Consequence. The wife’s case was established. The husband produced no sufficient evidence that, despite his conduct, the marriage had not irretrievably broken down. The statutory ground was therefore made out.

1. Court of Appeal. Allowed the wife’s appeal, pronounced a decree nisi, and made costs and ancillary directions.
2. High Court, Family Division. His Honour Judge Polson dismissed the wife’s petition after finding that the proved behaviour was no more than she could reasonably be expected to tolerate.