They say that all is fair in love and war, but it might not seem that way for Mrs Owens who, following a recent Court of Appeal decision, is deemed to remain in a loveless marriage having been unable to persuade the Court that her husband's behaviour was such that she cannot reasonably be expected to live with him.
The facts of this case have been highly publicised, but in short involved defended divorce proceedings with the respondent husband denying that his behaviour had made it unreasonable for his wife to continue living with him and that their marriage had therefore irretrievably broken down. Despite His Honour Judge Tolson QC finding that the marriage had broken down, he then went on to dismiss the wife's petition on the basis that she had failed to prove, within the meaning of section 1(2)(b) of the Matrimonial Causes Act 1973, that her husband had indeed behaved in such a way 'that she cannot reasonably be expected to live with him'.
The parties separated in February 2015 after 37 years of marriage and two children. The allegations of behaviour set out in the wife's petition included allegations that have probably been cited in thousands of petitions in the country and included inter alia that the husband prioritised his work over family, gave the wife no emotional support or love, had frequent mood swings that caused arguments and was generally unpleasant and disparaging, which embarrassed and undermined her. When the husband gave notice of his intention to defend the petition on the basis that the marriage had not irretrievably broken down as the particulars were insufficient to prove behaviour, the wife, by way of a belt and braces approach, amended her petition to provide further allegations. When it came to court, there were 27 allegations in total.
The question for the Court was whether or not these allegations, taken cumulatively, had the effect of wearing the wife down and making it unreasonable for her to continue living with the husband. Counsel for the wife focused on the allegations that the wife said had caused her embarrassment in a public place, and therefore the most serious, which were then examined in excruciating detail during the course of the hearing. Ultimately, the Judge, however, found that they lacked 'beef' and were not sufficient in themselves to be any more than the ordinary. Judge Tolson found that they were 'at most minor altercations of a kind to be expected in a marriage. Some of them not even that'. The Court of Appeal reviewed both the case-law and authorities, which shed light on the approach to be taken when reviewing whether a behaviour petition is made out. It confirmed that the Court first has to conduct a fact-finding mission to satisfy itself on what is proved to have happened - taking into account the characteristics of the individuals concerned - in light of all the circumstances and having regard to the cumulative effect of the conduct alleged. Once it has assessed this subjective element, it then asks itself the objective question: has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent? As Judge Sir James Munby put it, 'what may be regarded as trivial disputes in a happy marriage could be salt in the wound in an unhappy marriage'.
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