Family Law

Sally Pike, Partner, Coffin Mew

The family law community is eagerly awaiting the Court of Appeal decision in the divorce of Mr and Mrs Owens amidst renewed calls for no-fault divorce.

Mr and Mrs Owens had been married for 39 years when the wife petitioned for divorce based on her husband’s unreasonable behaviour. She cited her husband’s 'continued beratement' of her for an earlier affair amongst her particulars of behaviour. She argued that the cumulative effect of her husband’s behaviour toward her made it unreasonable for her to live with him. The couple had been living in separate homes for some time. Mr Owen argued that he did not agree the marriage had broken down and any differences were routine for any marriage. Judge Robin Tolson rejected the wife’s petition describing her allegations as 'exaggerated' and 'minor altercations of a kind to be expected in a marriage'. The Court of Appeal is now being asked to overturn that decision.

Since the introduction of the Matrimonial Causes Act 1973 it has been quite clear that any petition for unreasonable behaviour must establish:

1. The respondent has behaved in such a way it is unreasonable for the petitioner to continue to live with the respondent.
2. The marriage has broken down irretrievably as a result.

A number of early cases sought to establish the correct burden of proof in establishing whether behaviour was unreasonable and the test applied in Livingstone-Stallard v Livingstone-Stallard (1974) Fam 47 has been repeated in subsequent cases. Dunn J, as he was then, said dictum:

'Would any right thinking person come to the conclusion that  this husband has behaved in such a way that this wife cannot reasonably be  expected to live with him taking into account the whole of the circumstances  and the characters and personalities of the parties?'  

The Matrimonial Causes Act 1973, s 1(2)(b) requires the petitioner in divorce proceedings to prove the unreasonable behaviour and the court made it clear in Butterworth v Butterworth [1997] 2 FLR 336 that a respondent is entitled to oppose the petition and to have the allegations properly proved, to the satisfaction of the court, to a civil standard of the balance of probabilities. It is however quite clear the test is subjective which makes the comments of Judge Tolson that this wife is 'particularly sensitive' somewhat peculiar.

Statute is very much at odds with modern practice. Resolution members subscribe to a code of conduct to deal with family law matters in a way to reduce or manage any conflict and confrontation; for example, by not using inflammatory language. The code encourages practitioners to share and agree the content of a petition prior to issue and to avoid detailed and lengthy particulars of behaviour.

The government has heavily promoted mediation in divorce and for many couples this is the only way of accessing any publically funded advice or support. The expectation of mediation is couples will work together to find their own solutions. The principles of mediation to look forward, not to attach blame and to avoid asking the court to make decisions are completely undermined by the requirement to attach blame in a divorce petition.

Resolution members have been calling for 'no-fault divorce' for sometime and propose a new divorce procedure, where one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and, after a period of 6 months, if either or both partners still think they are making the right decision, the divorce is finalised. This goes further than the proposed No-Fault Divorce Bill 2016. The Bill failed to get past its first reading in the commons last year when presented by Richard Bacon MP. The proposed Bill would still require a joint petition to proceed on a no fault basis and would not assist Mrs Owens in her plight.

It is difficult to reconcile why the court should be so involved in deciding whether a marriage has broken down, when in all other respects there is a clear message that couples should be resolving their own disputes. Provided parties have capacity, there are no checks on suitability to marry and there is a lack of appetite for any law reform for the 3.3 million cohabiting families in the UK, yet statute insists on the court making the decision as to whether a marriage has come to an end. Many share the view this is an archaic system and reforms are supported by Munby P and Lady Hale.

Of the 110,000 divorces in 2015, less than 1% were defended and of those defended cases, even less actually got to trial. The decision of Judge Tolson is, to most family practitioners, somewhat surprising. On the face of it, the Judge appears to have minimised the wife’s concerns and accepted the husband’s position that there are still a few years left in the marriage, notwithstanding the fact the wife has refused to live with the husband for several months.

The county court judgement is not available at the time this article is written. One can only speculate whether this petition would have been granted a certificate of entitlement to decree if it were not defended. The reports in the media suggest that the Judge did not accept the allegations as being sufficient to find the respondent had behaved unreasonably as opposed to not being the cause of the breakdown. One would hope this decision will not lead to a return to reams of allegations of behaviour expressed in precise detail, which would only lead to a greater number of defended petitions and ensure the relationship between husband and wife was damaged beyond repair making any form of dispute resolution impossible.