Unreasonable behaviour in divorce

Recently the Supreme Court handed down its judgment in the matter of Owens v Owens.

Mr and Mrs Owens were married in 1978. They have two children, both of whom are now adults. Mr Owens is 80 and Mrs Owens is 68.

In 2012 Mrs Owens presented Mr Owens with a draft divorce petition based upon Mr Owens’ behaviour. However, the petition was not filed. During this time, Mrs Owens was having a relationship with a third party.

Mrs Owens moved out of the family home in 2015 and filed a divorce petition based on Mr Owens’ behaviour. A divorce in England and Wales must be brought as a result of the irretrievable breakdown of a marriage and one of five facts must be proven. If the parties have not been separated for a period of two or more years, then to apply for a divorce the petitioner must rely upon the respondent’s adultery or behaviour.

“Unreasonable behaviour” as it is commonly known is set out at section 1(2)(b) of the Matrimonial Causes Act 1973, which states “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.

Mr Owens objected to his behaviour being the reason for the irretrievable breakdown of the marriage and defended the divorce proceedings. Mr Owens also initially suggested that the marriage had not irretrievably broken down (although it has been mentioned several times throughout the proceedings that the marriage has now irretrievably broken down). Mrs Owens amended her divorce petition to include 27 particulars of Mr Owens’ behaviour, to include incidents in an airport, a restaurant and a pub.

In the first instance, His Honour Judge Tolson QC ruled in Mr Owens’ favour and came to the conclusion that Mr Owens had not behaved in such a way that Mrs Owens could not reasonably be expected to live with him. Whilst it was accepted that the marriage had irretrievably broken down, HHJ Tolson QC found that the fact required under section 1(2)(b) of the matrimonial Causes Act 1973 had not been proven. The petition was therefore dismissed.

The matter proceeded to the Court of Appeal and on 14th February 2017 the appeal was heard. The Court of Appeal determined that there was no error in fact or in law on the part of HHJ Tolson QC and ruled again in Mr Owens’ favour.

Mrs Owens appealed to the Supreme Court and permission for the appeal was granted on the basis that a new issue about the interpretation of section 1(2)(b) of the Matrimonial Causes Act 1973 might be raised. The Supreme Court heard the matter in May 2018.

Written representations were also provided to the Supreme Court by Resolution as an intervenor to the proceedings (permission having been granted to Resolution). Resolution is an organisation of family lawyers and other professionals in England and Wales, who believe in a constructive, non-confrontational approach to family law matters. Resolution also campaigns for improvements to the family justice system. Resolution intervened in these proceedings in order to make representations about the law governing divorce in England and Wales and the interpretation of section 1(2)(b) of the Matrimonial Causes Act 1973. Resolution has also petitioned the government to consider amending the law on divorce to include “no fault” divorce petitions without the need for a period of two years’ separation.

Both Mrs Owens and Resolution commenced by arguing that the law did not require that Mr Owens’ behaviour itself had been such that Mrs Owens could not reasonable be expected to live with him, but that the effect that the behaviour had on Mrs Owens had been such that she could not reasonably be expected to live with him. However, it was accepted early on that the extent to which this was argued in achieving permission to appeal to the Supreme Court went too far and therefore this argument was significantly narrowed before it came before the Supreme Court.

The Supreme Court has reiterated that the legislation “requires not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable”. The law does not require the behaviour referred to within the petition to have caused the breakdown of the marriage or be the reason for the separation. The respondent’s behaviour itself does not have to be unreasonable, but it needs to be sufficient that as a result of the behaviour the petitioner would not reasonably be expected to continue to live with the respondent.

Whilst the Supreme Court discussed issues such as the cumulative effect of the behaviour and the three part test involved (which is partially subjective and partially objective), it eventually came to the conclusion that the grounds of appeal were not sufficient for the ruling to be overturned. This decision was made unanimously (although by a narrow margin it would appear in each judge’s view).

The Supreme Court has dismissed the appeal of Mrs Owens and stated that she must remain married to Mr Owens for the time being.

Throughout this case, there has been much debate about the need for reform of the legislation governing divorce.

The Supreme Court judges said they had “uneasy feelings” in dismissing the case. However, it is not for the judges to make the law and this has been made very clear throughout the court of the proceedings.

Many family practitioners are of the view that the need for parties to petition for divorce based on conduct (adultery or behaviour) if they have not been separated for a period of 2 years creates undue animosity between them. Other jurisdictions have the ability to apply for divorce on the basis of “irreconcilable differences” or other neutral terms to confirm that the marriage has broken down.

The Divorce (etc.) Law Review Bill (HL Bill 126) prepared by Baroness Butler-Sloss had its first reading on 18th July 2018. This Bill asks the government to review the current law on divorce and consider a proposal for a new scheme whether either or both parties to a marriage can apply for a divorce on the basis of the irretrievable breakdown of the marriage. If, after a cooling-off period of 9 months has passed, the application is confirmed by one or both parties then the divorce would be granted. We will have to wait and see whether changes are made to the legislation.

In the meantime, solicitors will almost undoubtedly continue to try and draft relatively mild particulars of behaviour within petitions in the first instance to try and reduce any animosity between the parties, in line with the guidance from Resolution and the Law Society.

The vast majority of divorce applications proceed undefended. Where a respondent chooses to defend proceedings, the petitioner can apply to amend the petition and bolster the particulars of behaviour to include more serious incidents and less mild language to evidence the fact relied upon. In most circumstances this is likely to be sufficient to meet the legislative criteria. Whilst a very low number of respondents indicate their intention to defend the proceedings, even fewer proceed to a contested hearing, so it is hoped that this will not become a more common feature of divorce law in England and Wales.

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