Owens and Owens: unreasonable law not unreasonable behaviour?

Owens v Owens is a case that no family practitioner, and indeed few outside of the family law world, could have failed to notice.

The Supreme Court hearing reinvigorated the calls for 'no-fault divorce' and the judgment made headline news.

It's a situation that everyone can understand, form a view on and – in some cases – even relate to.

Background

The facts of the case are not unusual. Mr and Mrs Owens married in 1978 and have two adult children.

With the marriage hitting difficulties, Mrs Owens first consulted her solicitor about a divorce in June 2012.

In February 2015, Mrs Owens moved out of the former matrimonial home and they have not lived together since. They are now 80 and 68 respectively.

In May 2015, Mrs Owens filed a divorce petition based on section 1(2)(b) Matrimonial Causes Act 1973, which, to show that the marriage has broken down irretrievably, requires the petition to satisfy the court "that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent".

Mrs Owens gave particulars of incidents evidencing this. Such petitions usually progress without any real issue or scrutiny.

However, Mr Owens defended the case, arguing at the trial that the examples given of his behaviour were not sufficient to satisfy the test.

Whilst the judge found that the marriage had broken down and that Mrs Owens could not continue to live with Mr Owens, he ultimately agreed with Mr Owens and dismissed the petition.

Mrs Owens appealed first to the Court of Appeal, who dismissed the appeal, and then to the Supreme Court.

The Supreme Court unanimously dismissed that appeal, with Lord Wilson giving the majority judgment.

The outcome is likely to leave many family practitioners feeling disappointed given the profile around this case in support of the cause of 'no-fault divorce'.

However, as Lady Hale says in her judgment, the court's role is only to interpret and apply the law - and the interpretation of the law as it stands is sound.

Mrs Owens' main ground for permission to appeal was that subsection 1(2)(b) should be interpreted not that the behaviour had been such that the petitioner could not reasonably be expected to live with the respondent, but that it was the effect of the behaviour that had been such.

It was conceded at the hearing that this goes too far and therefore the issue of the interpretation of the subsection for the Supreme Court was very narrow.

As Lord Wilson confirms at paragraph 28 of his judgment, the subsection is being interpreted correctly. He refers to it as a three stage enquiry:

• first, determining what the respondent did or did not do by reference to the allegations of behaviour in the petition (factual);
• second, assessing the effect of the behaviour on this particular petitioner in all of the circumstances (subjective); and
• third, evaluating whether as a result of the first and second, it would be unreasonable to expect the petitioner to continue to live with the respondent (objective).

The judgment

Despite this interpretation, Lord Wilson did confirm that he had "uneasy feelings" about this particular case and some of the points in it.

That included references in the trial judge's judgment to "unreasonable behaviour"; Lord Wilson is clear that "blameworthy or grave" behaviour is not a pre-requisite of a successful petition.

Furthermore, the behaviour not only doesn't have to be unreasonable, but it also doesn't have to be the cause of the breakdown of the marriage.

Finally, Lord Wilson raises what has been referred to as the "cumulative effect" and whether this was sufficiently considered.

The behaviour alleged by Mrs Owen was based on many smaller incidents, which on their own may appear minor but together, she said, indicated "authoritarian, demeaning and humiliating conduct".

Both Lord Wilson and Lady Hale in her concurring judgment express concern about these points, although emphasising that the appeal courts are not the place to consider such concerns given the trial judge's conclusions.

Indeed, Lady Hale says that her view is that the correct outcome would be for the case to go back for a rehearing, which might lead to a decree of divorce being granted.

However, Mrs Owens' case was clear that she did not seek that and Lady Hale therefore '"reluctantly" agreed that the appeal should be dismissed.

That is, however, of course not the end, whether for Mrs Owens who now has to wait until February 2020 to apply for a divorce on the basis of five years' separation, or for the family law world who now have to continue with the interpretation of the law as it stands.

As the judgment records, this may be the only recent example of a respondent to a defended divorce successfully opposing the grant of decree: the president of the Family Division noted in his judgment that in 2016 in England and Wales only around 17 cases proceeded to a contested final hearing for a defended divorce, out of some 114,000 petitions.

Whether there will be more or not following this judgment remains to be seen.

On this point, however, Lord Wilson does provide some assistance, commenting at the start of his judgment that it may "remain of some value to those who in the future wish to invoke, or need to apply, the subsection".

The comments of the president in the Court of Appeal of a "consensual, collusive manipulation" no doubt caused some family law practitioners to wince, arising as they did in reference to a practice of drafting anodyne particulars supporting a divorce petition that many constructive family lawyers adopt in the genuine belief that it is in the best interests of the families that we represent - and an approach that echoes both the Law Society's Family Law Protocol and Resolution's Code of Conduct.

Lord Wilson acknowledges this and allows us to breathe easier by saying that unless the particulars are untrue, there is no dishonesty by submitting them on behalf of a petitioner and no collusion on behalf of the respondent accepting them.

He confirms that the subsection is not being abused; it is simply a "legitimate enlargement" of the application of it to reflect changing social norms.

We are also indeed helped further by these comments, as Lord Wilson reflects that the application of the subsection will change with the passage of time and should be informed by changing social norms.

His main example relates to a marriage now being a partnership of equals, as a result of which the moment at which the moment at which a respondent's behaviour, in the light of the effect of this upon the petitioner, becomes so unreasonable that he/she cannot be expected to continue living with them is now potentially much earlier in a relationship, and indeed is at the same time for everyone regardless of gender.

In addition to the helpful comments, we are rightly reprimanded for using the phrase 'unreasonable behaviour'.

The subsection, Lord Wilson confirms, requires that the expectation of continued cohabitation should be unreasonable, not the behaviour itself.

This is a shorthand phrase that the majority of current practitioners will simply have been taught, and perhaps now need to take increased efforts to abandon. The current law, after all, does not require fault.

As Lady Hale points out, we (and she includes herself in that) may not be helped in our fight for a change in the law by referring to it as 'no-fault divorce' when we actually already have that in all of the subsections, save (arguably) adultery.

Finally, Lord Wilson points to procedural points that could be addressed in any future cases that arise – the time estimate for a defended divorce hearing and the use of third-party witnesses to support the allegations of behaviour being the main ones.

In Owens, the trial ultimately focused on the main four allegations out of some 27 made in Mrs Owens’ amended petition, and with no evidence given either by other witnesses in support of the allegations of behaviour or indeed by Mrs Owens herself in relation to the marriage prior to the last two years of it in support of a cumulative behaviour argument.

However, the main reaction to this judgment, and the response that we all wish to see, is undoubtedly that it adds to the ever-increasing pressure on parliament to reform our divorce laws.

It is there in Lord Wilson’s judgment, one statement that echoes (perhaps not as strongly as some would have wished) the views of the family law world: "Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances".

The future

And so all eyes now turn to the Private Member’s Bill introduced to the House of Lords by Baroness Butler-Sloss just last week.

The Divorce (etc.) Law Reform Bill arises from the research of Professor Liz Trinder from the University of Exeter Law School, published by the Nuffield Foundation, which shows that the current law is resulting in increased conflict and pain for couples and families.

It requires the government to review the current law on divorce and civil partnership dissolution and to consider a proposal for a system of no-fault divorce.

This though is reminiscent of where we were 20 plus years ago with the Family Law Act 1996, which contained provisions reforming our divorce law.

While much of that act was bought into force, those parts never were and ultimately were shelved.

With so many family lawyers working hard to reduce conflict for families where at all possible, having a law that only serves to increase it is clearly unacceptable.

Perhaps it is the law that is unreasonable rather than the behaviour.

Whilst the Owens case does not provide us with the answer, the bill will now proceed to the second reading in the House of Lords in light of the increased attention to the issue and the impetus will continue from family practitioners for parliament to adopt this and provide the review which is now so desperately needed.