Penningtons Manches, 21 JUN 2018

How far will the Supreme Court go as it tackles Owens v Owens?

This article originally appeared in New Law Journal, the leading weekly legal magazine.

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On 17 May, the Supreme Court heard the case of Owens v Owens. It is the first time that the ‘fault based’ divorce provisions in the Matrimonial Causes Act 1973 (MCA 1973) have been considered by the highest court.

The case is of huge significance to divorcing couples, and to the professionals who advise them. Resolution, the representative body for family justice professionals, intervened (full disclosure: the author is Treasurer of Resolution).

The Supreme Court considered the correct interpretation of s 1(2)(b), MCA 1973, which sets out the basis for divorce commonly referred to as ‘unreasonable behaviour’. Specifically, the court considered the extent to which the statute does or does not in fact require someone seeking a divorce to prove that his or her spouse’s unreasonable behaviour has caused the irretrievable breakdown of the marriage.
It could be said that the very concept of unreasonable behaviour was on trial for its life.

The law

As a result of Owens, s 1 of MCA 1973 has been subject to unprecedented scrutiny. It is worth reminding ourselves what the Act says about the basis for divorce in England and Wales, and how it has been interpreted by the courts.

Section 1(1) MCA 1973 states that there is only one ground for divorce in England and Wales: ‘That the marriage has broken down irretrievably.’

Section 1(2) states that ‘the court shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts’.

The statute then sets out five ‘facts’. If the petitioner can satisfy one of them, the court will hold that the marriage has indeed broken down irretrievably and the petitioner can apply for a conditional order or decree nisi, and (after a six-week cooling off period) for decree absolute, the final decree of divorce.

The five facts are:

that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition… and the respondent consents to a decree being granted; and
that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

Facts (a) to (c) are ‘fault based’, whereas facts (d) and (e) are not. One effect of the way in which the five facts are drafted is that large numbers of people, who have concluded that their marriage has broken down irretrievably, have little option but to petition based on one of the ‘fault based’ facts. This would be the case, for instance, for a couple who have not been separated for at least two years, or for a petitioner who has been separated for three or four years, but whose spouse will not consent to a divorce. Article continues below...

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Choose a ‘fact’

So which fact to use? The ‘desertion’ fact has fallen into disuse. The ‘adultery’ fact frequently applies, but can involve contested proceedings, if the respondent will not admit to the adultery.

For the majority of couples, therefore, the ‘behaviour’ fact in s 1(2)(b) is the most appropriate, and it is by far the most widely pleaded fact. It is also the fact that was the subject of the appeal in Owens.

The rather convoluted wording of s 1(2)(b) has long been reduced to the shorthand ‘unreasonable behaviour’. The phrase appears in Judge Tolson’s judgment in Owens at first instance, and in the judgments of the President and Lady Justice Hallett in the Court of Appeal. It appears in the Law Society’s Family Law Protocol, and in Resolution’s Guide to Good Practice. It is a beguilingly comprehensible summary of a complex provision.

It is worth pausing to note that neither the word ‘unreasonable’ nor the word ‘behaviour’ appears in s 1(2)(b).

In his lead judgment in the Court of Appeal, the President reviewed the way in which the courts have interpreted s 1(2)(b) since 1973 ([2017] EWCA Civ 182, [2018] 1 FLR 1002) He then sought to deconstruct the task facing a judge when considering a ‘behaviour’ petition. It was his view that the law is settled. The judge’s task, he said, is to evaluate ‘what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?’ (The italics appear in the original, para [37].)

‘Unreasonable behaviour’ in practice

Lawyers and judges working in the field of family law have long been concerned that the need to cite examples of the respondent’s behaviour in a divorce petition gets matters off to the worst possible start. At a time when tensions are already running high, such allegations can aggravate the situation, and reduce the prospects of the couple reaching a consensual agreement about financial issues and the future shared care of their children.

Both the Law Society and Resolution recommend that solicitors should try to ensure that, wherever possible, petitions are drafted in such a way as to minimise the potential for conflict, while containing sufficient detail to convince a judge that the marriage has indeed broken down irretrievably. That approach was endorsed by the President in the Court of Appeal:

‘The challenge for the divorce lawyer is therefore to draft an anodyne petition, carefully navigating the narrow waters between Scylla and Charybdis to minimise the risks that if the petition is too anodyne it may be rejected by the court whereas if it is not anodyne enough the respondent may refuse to cooperate.’ (para [93])

In the vast majority of cases, the respondent will indicate that he or she has no intention to defend the divorce, and the case will be dealt with by a district judge on paper under the ‘special procedure’ set out in Part 7 of the Family Procedure Rules.

In a very small number of cases, the balancing act will fail and the respondent will decide to defend the divorce. In his judgment in the Court of Appeal, the President stated that in the year to January 2017, 113,996 divorce petitions were issued in England and Wales. In 2,600 cases, the respondent indicated an intention to defend, and in 760 he or she actually did so. Although no figures are available, the President estimated that only a fraction of those 760 cases actually resulted in a final contested hearing, and he estimated that ‘something in the order of magnitude of 0.015%’ of divorces culminate in a contested hearing.

Owens was one of the 0.015% of cases.

Owens in the lower courts

Mr and Mrs Owens married in 1978 and separated in 2015. Their children are grown up. Mrs Owens had had an on-and-off affair with another man during 2012 and 2013. Mrs Owens petitioned for divorce in May 2015 on the ground that the marriage had broken down irretrievably and alleging that Mr Owens had behaved in such a way that she cannot reasonably be expected to live with him.

Mrs Owens clearly felt the marriage was over, and she had no other fact on which she could rely: they had not been separated for two years, a petitioner cannot rely on her own adultery and there was no desertion. Like countless others since 1973, Mrs Owens relied on her husband’s ‘unreasonable behaviour’ as the only option open to her to end her legal marriage.

Her petition set out a number of anodyne examples of Mr Owens’s behaviour. In the Court of Appeal, the President commented:

‘I cannot help thinking that, if the husband had not sought to defend, the petition would have gone through under the special procedure without any thought or challenge from the court.’

It was, in other words, a petition similar to thousands of others issued every year.

For his part, Mr Owens did not want the marriage to end. He certainly did not accept that his behaviour had brought it to an end. He indicated that he wished to defend the proceedings. Mrs Owens was ordered to file more detailed particulars, which she duly did. These amounted to 27 separate allegations. Mr Owens filed a response, and the matter was set down for a one-day hearing before HHJ Tolson, sitting in the Central Family Court.

Having heard the parties give evidence, the judge found as a matter of fact that the marriage had broken down, that Mrs Owens ‘cannot go on living with the husband’, and that Mr Owens was ‘deluding himself’ if he believed otherwise.

Nonetheless, the judge did not allow Mrs Owens’s petition to proceed. He found that she had failed to establish that it was Mr Owens’s behaviour towards her that had caused her to conclude that the marriage had broken down. He concluded:

‘I have not found this a difficult case to determine. I find no behaviour such that the wife cannot reasonably be expected to live with the husband. The fact that she does not live with the husband has other causes. The petition will be dismissed.’

The Court of Appeal concluded, with some side-swipes at the unsatisfactory state of the law, that the first instance judgment could not be faulted: the judge had been entitled to make the findings he did and had not mis-directed himself as to the law. Mrs Owens appealed to the Supreme Court.

The Supreme Court

There was some surprise among family lawyers when the Supreme Court agreed to hear Mrs Owens’s appeal. There had been no dissenting judgment in the Court of Appeal, and the judgment appeared unassailable. To those of us who have campaigned vociferously for ‘no fault’ divorce, this did not appear to be a case that would advance the cause. Some are concerned that, if the Supreme Court upholds the decision of the lower courts, the uneasy arrangement whereby behaviour petitions are allowed through ‘on the nod’ under the special procedure might be compromised.

Much of the argument before the Supreme Court centred on the historic interpretation of s 1(2)(b). Does it really mean that the respondent’s ‘unreasonable behaviour’ must have caused the petitioner to conclude that the marriage had broken down?

The Supreme Court comes at the question afresh as it is not bound by the existing case law, which was all decided at High Court and Court of Appeal level.

The Supreme Court also has a historic role in interpreting statute purposefully, in light of current social values. In a family law context, that was the role performed by the House of Lords in White v White [2001] 1 AC 596, [2000] 2 FLR 981 when the court interpreted the provisions of s 25 of MCA 1973 to find that there was no place for discrimination between husbands and wives on the basis of the nature of their contribution to the marriage.

The finding of the House of Lords in White reflected society as it was in 2001, not as it had been in 1973, when the Act was implemented. Will the Supreme Court sitting in 2018 interpret s 1(2)(b) in the same way that it has been interpreted by lower courts since 1973? Is there even scope for a different interpretation?

Mrs Owens argued (and Resolution supported her) that there is indeed scope to argue that ‘unreasonable behaviour’ has no role to play, and that MCA 1973 does not in fact require the apportionment of blame.

One interpretation of MCA 1973 is that its purpose is to enable courts to dissolve marriages that have broken down irretrievably. Where a marriage has become ‘an empty legal shell’, as it has become for Mr and Mrs Owens, there is no public interest in maintaining the legal structure in place. There is certainly no justification for insisting that one party must remain in a marriage for up to five years after he or she has concluded that it has broken down irretrievably.

It is worth remembering, in this context, that the courts’ powers to make financial orders under Part II of MCA 1973 are only enabled once a decree nisi of divorce has been pronounced. If the Supreme Court upholds the concept of ‘unreasonable behaviour’, it is entirely possible that a petitioner could have to wait five years before she could apply to the court for an order for sale of the matrimonial home. Indeed, that is the position in which Mrs Owens currently finds herself.

An objective or subjective test?

But surely, the 1973 Act introduced a ‘fault-based’ divorce procedure specifically for couples who had been separated for less than two years? A close examination of the statute suggests an alternative interpretation may be possible.

In relation to adultery, the Act only requires the petitioner to demonstrate that adultery has taken place and that he or she finds it intolerable to live with the respondent. There is no requirement on the petitioner to establish a causal link between the respondent’s adultery and the petitioner’s decision.

Similarly, in relation to desertion, the petitioner simply needs to establish that there has been desertion for the requisite period. Two of the so-called ‘fault-based’ facts therefore require no finding that the ‘fault’ has caused the breakdown of the marriage. What of the third, so called ‘unreasonable behaviour’?

An alternative reading of the section would be that the petitioner in fact only needs to demonstrate that the respondent’s behaviour (whether or not it is objectively unreasonable) has caused the petitioner to conclude that he or she can no longer live with the respondent. In other words, the objective test of the unreasonableness or otherwise of the respondent’s behaviour should be replaced by a subjective test of the impact of the respondent’s behaviour on the petitioner.

There are strong counterarguments to all of this. Mr Owens argued that Parliament clearly had in mind that the petitioner must establish that there has been some element of fault, if the marriage is to be dissolved before the parties have been separated for two years. He questioned why Parliament went to the trouble of passing the ‘no fault’ divorce provisions contained in Part II of the Family Law Act 1996 (since repealed), if the existing provision did not require the establishment of fault.

The Supreme Court’s judgment will provide a fascinating gauge of how far the courts are prepared to go when interpreting statute in light of societal change.

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