Buffery v Buffery

For divorce under section 1(2)(b) of the Matrimonial Causes Act 1973, the requirements that the marriage has irretrievably broken down and that specified behaviour is proved are separate. The behaviour need not cause the breakdown. The question is whether, viewed objectively but in light of the history, circumstances, characters and personalities of the particular spouses, the petitioner cannot reasonably be expected to live with the respondent. A “grave and weighty” threshold derived from constructive desertion or cruelty is inappropriate. Gravity is not independently decisive. No retrial is required where the evidence was fully investigated and the findings do not establish the statutory fact.

The wife appealed from the dismissal of her petition for dissolution of marriage by Mr Recorder Stembridge in the Worcester County Court on 19 December 1986. The petition relied on section 1(2)(b) of the Matrimonial Causes Act 1973. The recorder accepted that the marriage had irretrievably broken down but held that the husband’s conduct was not sufficiently grave and weighty and that the breakdown could not be blamed on him.

The wife contended that the recorder had applied the wrong legal test. She sought a decree of dissolution or, alternatively, a new trial. The central issues were whether the statutory requirements were separate and what standard governed the question whether she could reasonably be expected to live with her husband.

The appeal was dismissed. Lord Justice May delivered the principal judgment, and Mr Justice Ewbank agreed.

1. The requirements in section 1(1) and section 1(2) of the Matrimonial Causes Act 1973 are separate. The petitioner must establish both irretrievable breakdown and one of the statutory facts. Under section 1(2)(b), the respondent’s behaviour need not have caused the breakdown.
2. The recorder applied the wrong standard by asking whether the husband’s conduct was “grave and weighty” and by approaching the matter through concepts associated with constructive desertion or cruelty. The correct inquiry, stated in O’Neill v O’Neill [1975] 1 WLR 1118 and Livingstone-Stallard v Livingstone-Stallard [1974] Fam. 47, is whether the petitioner cannot reasonably be expected to live with the respondent. The test is objective, but the court must consider the particular spouses, the history and whole circumstances of the marriage, and their characters and personalities.
3. The gravity of the conduct is not, of itself, decisive and there is no separate grave-and-weighty threshold. Very grave conduct will probably make the statutory test easier to satisfy, but the statutory question remains the reasonable expectation of continued cohabitation.
4. The recorder’s factual findings showed that the parties had grown apart, could not communicate and had nothing in common. The husband’s insensitivity in financial matters was insufficient. The failure to go out socially reflected a mutual deterioration rather than behaviour making it unreasonable for the wife to live with him. The recorder therefore reached the correct result, although for the wrong reasons.
5. The evidence had been fully investigated and the findings could not properly be improved by a retrial. The petition was dismissed with costs, not to be enforced without leave of the court. Legal aid taxation was ordered for both parties.

• Court of Appeal (Civil Division) dismissed the wife’s appeal, with costs and legal aid taxation.
• Worcester County Court, before Mr Recorder Stembridge, dismissed the petition on 19 December 1986.