Owens v Owens

Under section 1(2)(b) of the Matrimonial Causes Act 1973, the court must determine what the respondent did or omitted to do, assess its effect on the particular petitioner in all the circumstances, and decide whether it would be unreasonable to expect the petitioner to continue living with the respondent.

The provision does not require unreasonable, blameworthy or grave behaviour. Nor must the behaviour have caused the marriage to break down. The conduct and its cumulative effect must be considered as a whole. Although the statutory meaning remains constant, its application reflects contemporary social norms, including the legal and social recognition of marriage as a partnership of equals.

The wife petitioned for divorce under section 1(2)(b) of the Matrimonial Causes Act 1973, alleging that the husband had behaved so that she could not reasonably be expected to live with him. The trial judge found that the marriage had broken down and that the wife could not continue living with the husband, but dismissed the petition because the pleaded behaviour did not satisfy the statutory requirement.

The Court of Appeal dismissed her appeal in Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74. The Supreme Court granted permission on a proposed interpretation focused principally on the effect of the behaviour upon the petitioner. That argument was abandoned at the hearing. The remaining issues concerned the correct statutory inquiry, the cumulative assessment of the alleged conduct, and whether the trial judge had made an appealable error.

1. Disposition. The appeal was dismissed unanimously. Lord Wilson gave the leading judgment, with which Lord Hodge and Lady Black agreed. Lord Mance agreed with the governing law and the dismissal. Lady Hale expressed substantial misgivings about the trial but was reluctantly persuaded that the appeal should be dismissed.

2. Section 1(2)(b) of the Matrimonial Causes Act 1973 requires a three-stage inquiry: the court must determine what the respondent did or omitted to do; assess the effect upon the particular petitioner, taking account of personality, disposition and all the circumstances; and evaluate whether, because of that behaviour and its effect, it would be unreasonable to expect the petitioner to continue living with the respondent. The subsection cannot be reinterpreted so that the petitioner’s reaction becomes the entire focus. The required connection remains between the respondent’s behaviour and the reasonableness of expecting continued life together.

3. The familiar expression “unreasonable behaviour” is inaccurate. The statute does not require the behaviour itself to be unreasonable. It asks whether the expectation of continued cohabitation would be unreasonable. Blame, fault and gravity are not prerequisites. Behaviour may include a failure to act and conduct attributable to illness.

4. The respondent’s behaviour need not have caused the breakdown of the marriage. Irretrievable breakdown and one of the statutory facts must both be established, but the statute requires no causal connection between them. The alleged conduct and its effect should also be considered cumulatively and in the context of the marriage, rather than as a collection of isolated incidents.

5. The statutory language retains its meaning, but its application to individual facts develops with contemporary social standards. The relevant evaluation must reflect the recognition that marriage is a partnership of equals and that equivalent conduct is assessed equally for both sexes.

6. Lord Wilson identified serious unease about the abbreviated procedure and the limited evidence concerning an alleged course of authoritarian conduct. Nevertheless, the original basis for permission to appeal had correctly been abandoned, the Court of Appeal had rejected the remaining complaints, and the circumstances did not justify appellate intervention. Lord Mance considered that the judge had stated and ultimately applied the correct test.

7. Lady Hale considered that the judge may have erred by using the misleading shorthand, appearing to require causation, and failing adequately to assess cumulative conduct. Her preferred legal response would have been a rehearing, but the appellant had submitted that a further contested hearing was undesirable. She therefore concurred in dismissing the appeal. Any replacement of the governing divorce law was a matter for Parliament.

1. United Kingdom Supreme Court: The wife’s appeal was dismissed unanimously: Owens v Owens [2018] UKSC 41.
2. Court of Appeal: The wife’s appeal from the dismissal of her divorce petition was dismissed: Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74.
3. Central Family Court: Judge Tolson QC dismissed the wife’s petition for divorce on 25 January 2016.