Owens v Owens [2018] UKSC 41

Mrs Owens petitioned for divorce under section 1(2)(b) of the Matrimonial Causes Act 1973, alleging her husband's behaviour meant she could not reasonably be expected to live with him. The Supreme Court reluctantly dismissed her appeal, prompting calls for parliamentary reform.

Facts

Mr and Mrs Owens were married in 1978 and have two adult children. Mr Owens, aged 80, built a successful business during the marriage and both spouses now have significant wealth. In June 2012, Mrs Owens (aged 68) first consulted solicitors about divorce. She had an affair from November 2012 to August 2013. In December 2012, she sent her husband a draft petition, which was never issued. In February 2015, she left the matrimonial home in Gloucestershire and moved next door.

In May 2015, Mrs Owens issued a petition for divorce under section 1(2)(b) of the Matrimonial Causes Act 1973, alleging that the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that she could not reasonably be expected to live with him. The petition was cast in anodyne terms, alleging that Mr Owens had prioritised work, lacked love or affection, was moody and argumentative, and disparaged her in front of others. Mr Owens defended the suit.

Following a case management hearing, Mrs Owens amended her petition to provide 27 specific examples of behaviour. At a one-day hearing before Judge Tolson QC, only a few examples were addressed in oral evidence. The judge dismissed the petition, finding the examples to be “at best flimsy”, that Mrs Owens had exaggerated their context and seriousness, that Mr Owens was “somewhat old-school”, and that Mrs Owens was more sensitive than most wives. The Court of Appeal dismissed her appeal.

Issues

The principal issue, as originally framed, was whether section 1(2)(b) should be interpreted as requiring that the effect of the respondent’s behaviour on the petitioner be such that she could not reasonably be expected to live with him, rather than the behaviour itself. This argument was abandoned at the hearing. The remaining issues concerned whether the trial judge had correctly applied the established three-stage inquiry under the subsection and whether his findings were sustainable.

Arguments

Mrs Owens, through Mr Marshall QC, ultimately conceded that the principal ground of appeal went too far but maintained complaints about the judge’s application of the law. Resolution, intervening, contended that the entire focus should be on the petitioner’s reaction to the respondent’s behaviour and that, if the petitioner genuinely cannot continue to live with the respondent, it might well be thought she cannot reasonably be expected to do so. Mr Owens, through Mr Dyer QC, defended the judge’s findings.

Judgment

Lord Wilson (with whom Lord Hodge and Lady Black agreed) explained that section 1(2)(b) requires a three-stage inquiry: (a) determining what the respondent did or did not do by reference to the allegations; (b) assessing the effect on the particular petitioner in light of personality, disposition and all circumstances; and (c) evaluating whether, as a result of the behaviour and its effect, an expectation that the petitioner should continue to live with the respondent would be unreasonable.

Lord Wilson reviewed six authorities (Pheasant, Livingstone-Stallard, Thurlow, Stevens, Balraj, and Buffery), confirming that the question posed by the subsection is not whether the behaviour was unreasonable but whether continued cohabitation cannot reasonably be expected; that behaviour need not be grave or weighty; that it need not cause the breakdown of the marriage; and that the test contains both subjective and objective elements.

Lord Wilson criticised the shorthand “unreasonable behaviour”, noting Ormrod LJ’s observation in Bannister v Bannister:

The learned judge, I am afraid, fell into the linguistic trap which is waiting for all of us when we speak of ‘unreasonable behaviour’ in relation to section 1(2)(b) cases. The basis of this subsection is not ‘unreasonable behaviour’ but behaving in such a way that the petitioner ‘cannot reasonably be expected to live with the respondent’, a significantly different concept.

Lord Wilson expressed “uneasy feelings” about the procedure adopted (a one-day hearing for a defended suit depending on a remorseless course of authoritarian conduct), the finding that incidents were isolated when most pleaded incidents were not addressed in oral evidence, and the finding that Mrs Owens had exaggerated her case when much was undisputed. However, he concluded that uneasy feelings are of no consequence in an appellate court and that intervention was inappropriate.

Lady Hale, while agreeing the appeal should be dismissed, expressed greater misgivings, identifying three concerns: the repeated reference to “unreasonable behaviour”; the apparent suggestion that the behaviour must cause the breakdown; and most troubling, that the hearing was not set up to evaluate the cumulative effect of authoritarian, demeaning and humiliating conduct. She drew an analogy with constructive dismissal cases. She would have favoured remitting the case for rehearing but was reluctantly persuaded otherwise given the appellant’s expressed dread of further proceedings and the proximity of the five-year separation period.

Lord Mance agreed with the dismissal, considering that the judge had stated the correct test and applied it, and that no inference should be drawn that he thought the husband’s behaviour had to cause the breakdown.

Implications

The decision confirms that the established three-stage interpretation of section 1(2)(b) developed in the lower courts over 40 years remains correct. Behaviour need not be grave or weighty, need not cause the breakdown of the marriage, and the inquiry retains both subjective and objective elements. While the legal test is unchanged, its application is informed by changing social norms, particularly the recognition of marriage as a partnership of equals.

The judgment is significant for cautioning against the misleading shorthand “unreasonable behaviour” and for highlighting that the fault-based language is inaccurate; the relevant facts in section 1(2)(a) and (b) are better described as “conduct-based”. Lord Wilson explicitly invited Parliament to consider reform, observing at paragraph 45 that Parliament may wish to consider whether to replace a law which denies Mrs Owens any present entitlement to a divorce.

Practically, the case demonstrates the limitations of appellate intervention where a trial judge has applied the correct test, even where the procedural framework (a short hearing in a defended suit) may be ill-suited to allegations dependent on cumulative effect. It exposes the difficulty for petitioners whose case rests on a pattern of authoritarian or demeaning behaviour rather than discrete grave incidents. The judgment is widely understood as a catalyst for the eventual statutory reform of divorce law in England and Wales.

Verdict: Appeal dismissed. Mrs Owens’ petition for divorce under section 1(2)(b) of the Matrimonial Causes Act 1973 remained dismissed, and she was required to remain married to Mr Owens for the time being.

Source: Owens v Owens [2018] UKSC 41