Divorce – Unreasonable Behaviour
This is how the Guardian Newspaper described the case of Owens v Owens ( EWCA Civ 182). Essentially, the issue revolved around the legal interpretation of “unreasonable behaviour” as the basis for a divorce.
This was a decision of the Court of Appeal in March 2017 from a previous decision of the Central Family Court to refuse to grant Mrs Owens a Decree Nisi of divorce. The original decision was that even though the Court found the marriage had broken down and the prospects of reconciliation hopeless, the wife did not satisfy the legal requirements to allow the court to make a finding of unreasonable behaviour on behalf of Mr Owens.
The Facts of the Case
This is not an unusual case. Husband and Wife married in 1978 and had two adult children. They separated in February 2015. It was accepted that the wife was carrying on an on and off affair which began in November 2012 and ended in August 2013. The original divorce petition was filed on 6th May 2015 and made the following allegations:
- That the Respondent prioritised work over home life including missing holidays and family events.
- During the latter years the Respondent failed to provide love, attention or affection towards the Petitioner leading her to feel unappreciated.
- The Husband’s mood swings caused frequent arguments which were distressful and hurtful to Mrs Owens
- The Husband was unpleasant and disparaging towards the Petitioner leaving her feeling upset and embarrassed.
- As a result of the Husband’s behaviour they lived separate lives under the same roof and had done for many years; not sharing a bedroom for several years.
- In February 2015 Mrs Owens moved out into rented accommodation.
The above particulars are typical of many divorces based on unreasonable behaviour and are designed to achieve a divorce for Mrs Owens (the Petitioner) without antagonising Mr Owens (the Respondent). Instead of Mr Owens accepting the particulars he chose to defend the proceedings.
The Court starts with legislation and Section 1 of the Matrimonial Causes Act 1973. Mrs Owens must demonstrate that her marriage has broken down “irretrievably”. Proving that a marriage has broken down “irretrievably” depends upon establishing one of five facts namely:
- Unreasonable behaviour
- Desertion for a period of at least two years
- That the parties have lived apart for a continuous period of two years and both parties agree to the divorce proceeding
- The parties have lived apart for a continuous period of five years regardless of consent.
This divorce concerned “unreasonable behaviour” (2 above).
The Court is therefore involved in an enquiry (so far as it reasonably can) into the facts alleged by Mrs Owens and Mr Owens. Obviously, in an uncontested divorce, which is the usual type, the Court does not have to engage in this exercise.
The approach that the Court must take is as follows:
- To decide whether Mr Owens has so behaved that it is unreasonable to expect Mrs Owens to live with him
- In order to decide that, it is necessary to make findings of fact as to what Mr Owens actually did, and findings of fact as to the impact of that conduct on Mrs Owens
- The cumulative effect on Mrs Owens of that behaviour.
In carrying out this exercise the Court must ask itself what any right thinking person looking at the particular Husband and Wife might think and whether one could reasonably be expected to live with the other taking into account all of the circumstances. This includes the respective characters and personalities of the parties concerned.
Difficulties in this area of law arise, as pointed out by the Court, because of the objective and subjective nature of the tests. For example, if the marriage is unhappy a particular piece of “conduct” may have more impact and be less “reasonable” than exactly the same conduct if the marriage is happy. In other words, what may be regarded as a trivial disagreement in a happy marriage could be salt in the wound of an unhappy marriage.
This concept is further complicated by the passage of time. The statute is dated 1973 and many changes in society have taken place since that time. By way of an analogy the Court stated the following:
“The concept of a vehicle has the same meaning today as it did in 1800, even though it includes methods of conveyance which would not have been imagined by a legislator of those days. The same is true of social standards. The concept of cruelty is the same today as it was when the Bill of Rights 1688 forbade the infliction of “cruel and unusual punishment”. But changes in social standards mean that punishments which would not have been regarded as cruel in 1688 will be so regarded today.”
Thus, the words “cannot reasonably be expected” must be addressed by reference:
“To the standards of the reasonable man or woman on the Clapham omnibus: not the man on the horse-drawn omnibus in Victorian times”.
The Grounds of Appeal
In broad terms Mrs Owens grounds of appeal from the refusal to grant her divorce in the original decision were as follows:
- The Court failed to make essential findings of fact as to the Husband’s behaviour and the impact upon the Wife
- The Court failed to undertake any proper assessment of the Wife’s subjective characteristics
- The Court failed to undertake any assessment of the cumulative impact on the Wife of the Husband’s behaviour
- The Court failed to apply the law properly to the facts.
- The Court failed to take into account the Wife’s rights under Articles 8 and 12 of the European Convention (Article 8- Right to a Private Family Life, Article 12- Right to Marry)
There then follows a description of the Court of Appeal’s role in hearing appeals and the reasons why the original decision to reject Mrs Owen’s claim that she should be divorced was made and gives a brief history of divorce law. The case concentrated on the selection of allegations that were brought to the Court of Appeal for examination and, in the writer’s view, places too much emphasis of the alternative remedies available to Mrs Owens under the present law. In other words, if she waits until February 2020 “assuming that she and her Husband are still alive” she will be able to petition for divorce on the basis that the parties have lived apart for a continuous period of five years regardless of consent.
In short, the Court of Appeal in assessing the original Judge’s decision confirmed that he was in the best position to consider the case having read all of the papers and heard evidence from the parties under cross-examination. The Appeal Court rejected the idea that the original Judge was “plainly wrong”. Finally, that the original Judge could not be criticised for the findings of fact that he made which essentially was critical of Mrs Owens.
The Current State of Divorce Law
Under current divorce law there are five facts which need to be proven in order to obtain a divorce. Two of them (adultery and unreasonable behaviour) involve “blame”. The remainder (no fault) rely on periods of separation and/or desertion of two and five years respectively. The issue in 2017 is whether it is appropriate for “blame” to be a part of divorce law.
The current state of divorce law exposes clients to the risk that following this decision those seeking a divorce will feel obliged to outline stronger and more challenging allegations (Particulars) in their divorce petitions. This leads to further acrimony which overspills into other areas of family law particularly children and financial matters. Many family lawyers, particularly those members of Resolution (formerly the Solicitors Family Law Association) recommend to petitioners not to put in the Petition every allegation of unreasonable behaviour and, in so doing, seek to produce more neutral particulars or allegations of unreasonable behaviour on the basis that to do so creates the acrimony that has already been referred to. It is a matter of common sense that the more contentious the allegations of unreasonable behaviour are, the more acrimonious the parties feel towards each other and the more damage is done to any ongoing relationship, particularly where children are involved.
As has already been mentioned, Mrs Owens does have remedy available to her in the sense that if she waits until 2020 she can get a divorce based upon five years separation regardless of consent. However, she will require her Husband’s consent to divorce after two years separation. This will require a presentation of a fresh petition and involve the parties in further expense. It is also worthy of comment that the Court of Appeal have forced these parties to remain married in circumstances where the worth of the marriage must be questioned.
Reform – Divorce Law
Resolution, an organisation for family lawyers, on 24th March 2017 stressed that this decision underlines the urgent need for no fault divorce to be revisited. The purpose behind this campaign for a reform of the law in this area is to reduce conflict and support separating couples to resolve matters amicably rather than the increase in acrimony that will inevitably result from the decision in the case of Owens.
On the other hand, there is the issue of marriage itself. What value does society place on marriage? Those who choose to marry separate themselves from those who do not and there are certain tax advantages and no doubt social benefits from the status of marriage. Perhaps we should make it more difficult to marry? Perhaps the elements of adultery and unreasonable behaviour should be removed from the statute book and the remainder of the five facts (desertion, two years separation and five years separation) be reduced. All these factors are, in my view, rightly open for modernisation and current debate with a view to creating no fault divorce.
From the writer’s perspective I would have hoped that the mere fact of defending this divorce for as long as Mr Owens did and necessitating the expense involved is such that the litigation itself could be seen from the Court’s perspective as unreasonable behaviour on behalf of Mr Owens in circumstances where Mrs Owens is perfectly clear she wishes this marriage to end. The purpose in keeping this couple married must be open to question in these circumstances and I submit that the mere fact of the litigation, its duration, its cost, is, in itself, unreasonable behaviour.
Paul Summerbell 27.03.17
Warren’s Law & Advocacy
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