Owens v Owens

Under section 1(2)(b) of the Matrimonial Causes Act 1973, irretrievable breakdown alone does not entitle a petitioner to divorce. The court must determine what conduct occurred and its impact on the particular petitioner. It must then decide objectively whether the respondent behaved so that the petitioner cannot reasonably be expected to live with the respondent.

The assessment considers the particular spouses, the marriage’s whole circumstances and history, and the cumulative effect of the conduct. Contemporary social standards apply because the provision is always speaking. An appellate court cannot substitute its own assessment where the trial judge applied the correct law, made findings reasonably open on the evidence and gave adequate reasons.

The wife petitioned for divorce on the ground of irretrievable breakdown, relying on the husband’s behaviour under section 1(2)(b) of the Matrimonial Causes Act 1973. The husband defended the petition. Following a one-day hearing, His Honour Judge Tolson QC found that the marriage had broken down and that the wife could not continue living with the husband. He nevertheless dismissed the petition because the pleaded behaviour did not satisfy the statutory fact.

The wife appealed, alleging procedural unfairness, inadequate factual findings, failure to assess her characteristics and the cumulative impact of the husband’s conduct, misapplication of the statutory test, and incompatibility with articles 8 and 12 of the European Convention on Human Rights. The central question was whether the judge’s decision was wrong within CPR 52.11(3)(a).

1. The appeal was dismissed. The trial judge correctly directed himself under section 1(2)(b) of the Matrimonial Causes Act 1973. He was entitled to conclude that the proved incidents did not amount to behaviour making it unreasonable to expect the wife to live with the husband. The Court of Appeal could not interfere merely because the marriage had in fact irretrievably broken down or because the result was deeply regrettable.

2. The statutory evaluation requires the court to determine what happened in the context of the particular marriage, consider the particular spouses and all the circumstances, and assess the cumulative effect of the respondent’s conduct. It must then answer the objective statutory question. Conduct which appears trivial in a happy marriage may have greater impact in an unhappy marriage.

3. The trial judge’s focused treatment of selected allegations was procedurally proper. The parties had agreed to a one-day hearing and had presented the case through selected incidents intended to show its overall complexion. The Family Procedure Rules permitted proportionate case management. The judge was not required to make a separate finding on every pleaded allegation, but had to explain adequately what he found.

4. Read as a whole, the judgment addressed the wife’s sensitivity, the impact of the incidents and their cumulative effect. The findings that the allegations were exaggerated, isolated and minor were reasonably open on the evidence. Appellate restraint therefore precluded a redetermination of the facts.

5. Section 1(2)(b) is always speaking. Its objective standard must be applied according to contemporary social standards and attitudes. That principle did not permit the court to replace Parliament’s statutory scheme with no-fault divorce.

6. Articles 8 and 12 of the European Convention on Human Rights confer neither a right to divorce nor a right to a favourable result in domestic divorce proceedings. The Convention challenge therefore failed.

Hallett LJ reached the same conclusion without enthusiasm and emphasised that reform was for Parliament. Macur LJ agreed with both judgments.

1. Court of Appeal (Civil Division): The wife’s appeal was dismissed by [2017] EWCA Civ 182. The court upheld the refusal of a decree nisi.

2. Central Family Court: His Honour Judge Tolson QC dismissed the wife’s defended divorce petition because she had not proved the statutory fact in section 1(2)(b) of the Matrimonial Causes Act 1973. He refused permission to appeal.