Birch v Birch

Under section 1(2)(b) of the Matrimonial Causes Act 1973, the court must assess whether the particular petitioner can reasonably be expected to live with the particular respondent. The inquiry is not based on an abstract reasonable-person standard. It requires consideration of the whole circumstances, including the parties’ characters, personalities, dispositions and behaviour, the petitioner’s capacity to endure the conduct, and what the respondent knew or ought reasonably to have known. Where the trial findings establish conduct which satisfies that test, the appellate court may apply the correct test to those findings and pronounce a decree nisi.

The wife petitioned for divorce after a marriage of more than 27 years, alleging that the husband’s dogmatic, chauvinistic and sometimes violent behaviour made it unreasonable to expect her to live with him. The husband denied the allegations and relied on the duration and overall nature of the marriage.

His Honour Judge Crowther found that the marriage had irretrievably broken down but dismissed the petition, concluding that the incidents had been relatively rare and that the wife could reasonably be expected to tolerate the husband’s behaviour. The wife appealed, arguing that the judge had applied an objective rather than the appropriate party-focused test under section 1(2)(b) of the Matrimonial Causes Act 1973.

Appeal allowed unanimously. Mr Justice Cazalet delivered the first judgment and Lord Justice Neill agreed. The Court of Appeal pronounced a decree nisi in the wife’s favour.

1. The wording of section 1(2)(b) of the Matrimonial Causes Act 1973 may appear objective, but the established approach requires the court to consider the particular petitioner and respondent. The relevant circumstances include their characters, personalities, dispositions and behaviour. This approach was supported by Ash v Ash [1972] Fam 135, O’Neill v O’Neill [1975] 1 WLR 1118 and Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47. Lord Justice Neill also regarded it as consistent with Gollins v Gollins [1964] AC 644.
2. The court was entitled to consider the wife’s particular sensitivities and capacity to endure the husband’s conduct, together with whether he knew or ought reasonably to have known of them. The relevant inquiry therefore concerned the effect of the husband’s conduct on this wife, not whether an abstract reasonable person would have tolerated it.
3. The trial judge’s findings established that the husband was dogmatic, outspoken and chauvinistic, while the wife was more passive and sensitive and had resented his views for many years. Those findings, taken together, required the conclusion that she could not reasonably be expected to live with him. The judge had approached the issue by applying the wrong test.
4. The appellate court could apply the correct legal test to the findings already made and grant the relief itself. There was no order for costs, subject to legal aid taxation of the wife’s costs.

• Court of Appeal (Civil Division): Appeal allowed. The court pronounced a decree nisi in the wife’s favour. No order for costs; legal aid taxation of the wife’s costs.
• Macclesfield County Court: On 26 June 1990, His Honour Judge Crowther dismissed the wife’s divorce petition.