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Owens v Owens: when unreasonable behaviour is not unreasonable behaviour
Date:27 JUL 2018
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The much anticipated judgment in the case of Owens v Owens [2018] UKSC 41 was handed down this week by Lord Wilson at the Supreme Court, with both Lady Hale and Lord Mance providing additional commentary in the written judgment.

This case epitomises all that is wrong with the current law as it stands; where a husband and wife are forced to remain married, when the wife wants a divorce. That was the outcome of the case when the Supreme Court dismissed Mrs Owens' appeal.

Much interest and publicity has surrounded this case and it has been used as the driving force for re-igniting the campaign for the introduction of a 'no fault' divorce. However, it was never within the power of the Supreme Court to change the law, all they can do is interpret and apply it. That said they have provided the clearest indication yet that there should be reform and Parliament should address this. 
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The Divorce (etc.) Law Review Bill introduced to the House of Lords by former President of the Family Division, Baroness Butler-Sloss, had its first reading last week. She describes the current divorce law as not being fit for purpose and this Bill places a duty on government to review the law. The Bill highlights the impact of finding fault in the divorce process and the consequences on children. In essence the Bill asks for a review of the current law and suggests the introduction of a no fault divorce. 

Lord Wilson ends his judgment by saying Parliament may wish to consider whether to replace a law which denies Mrs Owens any present entitlement to a divorce.

Mr Owens (aged 80 years old) and Mrs Owens (aged 68 years old) married in 1978 and have 2 adult children. Mrs Owens first wished to commence divorce proceedings in 2012 but abandoned this. She later issued a divorce petition in May 2015 relying on s 1(2)(b) of the Matrimonial Causes Act 1973 (MCA 1973) 'that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent' what is commonly known and referred to quite wrongly as 'unreasonable behaviour'. 

It has been good practice for many years as family law practitioners to draft particulars of behaviour which were anodyne, non-confrontational and non-inflammatory. This has been supported by the Resolution Code of Practice and by the Law Society in their Family Law Protocol. The outcome of this case may now cause a change of more beefy petitions.

In reality most divorces are agreed and the petitions are undefended. Only a small minority of cases end up defended and contested resulting in a final hearing. At the case management hearing Mrs Owens was directed to file further and better particulars meaning by the time the case came to a final hearing before HHJ Tolson QC there were 27 allegations of behaviour which centred around Mr Owens moodiness, him being argumentative and causing Mrs Owens embarrassment.

The trial judge found that allegations to be flimsy, exaggerated and isolated incidents referring to the petition as hopeless and he dismissed it. Mrs Owens appealed to the Court of Appeal, who also dismissed her appeal. She then appealed to the Supreme Court and was granted permission based on the interpretation of section 1(2)(b) of the MCA 1973. The nuance being not that behaviour had been such that she could not reasonably be expected to live with him but the effect of it on her had been the reason she could not be expected to live with him. Mrs Owens' legal team later conceded this went too far but the case carried on as it boiled down to the interpretation of that subsection. 

The Supreme Court reinforced the three stage approach taken by the Court of Appeal relying on six old authorities (the youngest case being 1988) being: (i) did the respondent do or not do as alleged; (ii) what was the effect on this petitioner of that behaviour in light of all circumstances including personality and disposition; and (iii) evaluate whether as a direct result of the respondent’s behaviour the impact was such that it would be unreasonable to expect the petitioner to continue to live with the respondent. 

The case of Stevens v Stevens [1979] 1 WLR 885 determined that all of the evidence needed to be looked at and the cumulative conduct of the behaviour. This was applied in Mrs Owens' case as HHJ Tolson QC referred to Mrs Owens as being more sensitive than most wives. However it appears that the effect of Mrs Owens on the continued course of conduct was not looked at. 

The Supreme Court highlighted that the behaviour did not, in fact, have to have caused the breakdown of the marriage referring to the cases of Stevens and Buffery v Buffery [1988] 2 FLR 365 but it appears that this was not argued in this case. 

This above shows that the test remains both objective and subjective; the approach specifically refers to the effect on this petitioner taking into consideration her personality, disposition and all of the circumstances and it serves as a reminder to the basics of the divorce process and the interpretation of the subsections of tMCA 1973, including that 'unreasonable behaviour' is not the correct interpretation of the section; it should always be referred to as behaviour such that the petitioner cannot reasonably be expected to live with the respondent. The particulars of the behaviour have to be proved. The effect of the behaviour will be applied subjectively and finally that the behaviour does not need to be the cause of the breakdown of the marriage. 
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