Big decision in Family Law from the Supreme Court today involving Mrs. Tini Owens, Mr Hugh Owens and Resolution.
What’s it about?
The interpretation of section 1(2)(b) Matrimonial Causes Act 1973, which is basically about the behaviour of one party towards another and the effect that behaviour has on the person asking for a divorce.
The parties were married in 1978 and separated in February 2015. Mrs. Owens filed a petition for divorce in May 2015 saying that the marriage had irretrievably broken down. The petition was based on the Mr. Owens behaviour, which the Mrs. Owens argued meant she could not reasonably be expected to live with him within the meaning of s 1(2)(b) Matrimonial Causes Act 1973. She gave details of incidents, which included occasions where the husband was alleged to have made disparaging or hurtful remarks to her in front of third parties. The husband unusually defended the case and argued at the trial that the examples given of his behaviour were not such as to satisfy the requirements of s 1(2)(b). Mr. Owens also did not agree that the marriage was over and said he hoped she would return to him. The judge agreed with the husband and dismissed the petition.
The wife then went to the Court of Appeal and they too reluctantly found the ground for divorce was not established and they could not interfere with the decision of the court below. Mrs Owens was unsuccessful here, too.
Mrs Owens then went to the Supreme Court for them to decide the issue. She was supported by Resolution, a nationwide organisation of family law solicitors and professionals. (Karen Dovaston is a member). Resolution has been tirelessly campaigning for a change in the law to provide for ‘no fault’ divorce, basically so a couple can divorce after one year of marriage but without having to wait for two years apart (or five if the other party does not agree as is here with Mr Owens) and without having to ‘point the finger of blame’.
The Supreme Court
Reluctantly, they dismissed the appeal which means Mrs Owens has to remain married to Mr Owens until 2020 when she could show they have been separated for five years.
The Court made a comment about the phrase ‘unreasonable behaviour’ which does not really describe what a court has to do when faced with a petition based on the behaviour of the other party. The Supreme Court clarified that the focus for the court must be
(1) look at the allegations of behaviour in the petition, and decide what the husband (in this case) did or did not do;
(2) to assess the effect which the behaviour had upon this particular wife in light of all the circumstances in which it occurred; and
(3) decide whether, as a result of the respondent’s behaviour (the husband here) and in the light of its effect on the petitioner (the wife here), an expectation that the petitioner should continue to live with the respondent would be unreasonable.
So, basic terms (and in this case):
- Look at what the wife said the husband did
- Decide if it is true
- If it is true, look at the wife and decide what her particular character is and what effect it had upon her. This is important. Not the effect on a wife generally but on this particular wife.
- Decide if it is a ‘fair call’ or reasonable to say that that the wife should be expected to continue to live with the husband, despite what has happened and the effect on the wife.
Tricky, isn’t it?
The Supreme Court also made a comment about the first judge who heard the case only hearing evidence (or what Mrs Owens had to say) about four out of the twenty-seven examples of behaviour she had given. The comment was whether that was enough for the first court to be able to consider the cumulative effect. In other words, the build up to the point she left the husband.
What the President of the Supreme Court said was that she would have considered returning the case to the first court to be heard all over again so that the court could consider the ‘full flavour’ of the conduct complained of but that was not asked for by Mrs Owens, so the Court would not do that.
The Supreme Court commented also that the question for parliament is whether the law governing entitlement to a divorce is fit for purpose, basically. It seems wrong that Mrs Owens wants to be divorced but she has to remain married. She has no intention of going back to Mr Owens – and I would go further and say that the court cases have definitely put the final nail in that coffin – but Mr Owens, who must surely know that she will not come back to him, refuses to consent to a divorce.
Parliament makes the laws and the Court applies them. What this decision from the Supreme Court does is highlight the need for Parliament to look at this again. Unfortunately for Mrs Owens, they are a bit busy with Brexit.
Why all the fuss about getting divorced, you might ask? Well, it is only when you get divorced and the divorce gets to the decree nisi stage that the court’s extensive powers to make financial orders is opened. It is only when the decree absolute is made that a financial order from the court is enforceable. There are some exceptions along the way but the big things like property, pensions, lumps sum and so on are made after decree nisi and are enforceable after decree absolute.
If you are not sure whether you can get divorced or how to sort out the finances if you are separated, contact us. There are options we can discuss with you.