So sadly for Mrs Owens she must remain married to Mr Owens for the time being. So said Lord Wilson when giving the leading judgment in the Supreme Court on 25 July.
In the final paragraph of his judgment, Lord Wilson stated:
Yet again therefore, the Supreme Court has offered an invitation to Parliament to make an important change to English family law. However, the Supreme Court judgment follows many years of tireless lobbying by organisations such as Resolution for the introduction of ‘no fault divorce’. Accordingly, it will be an optimistic person who expects legislative change in the near future. In the meantime, what are some lessons to be learnt from this sad tale?
Lord Wilson made it clear that whilst the relevant provision of the statute must conscientiously be applied, ‘the family court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being’.
Lord Wilson highlighted the fact that fully contested divorces remain rare and made reference to a report published in 2018 by the Nuffield Foundation (‘No Contest: Defended Divorce in England and Wales’), the authors of which discovered no recent example, other than Mr Owens himself, of a person to a defended suit who had successfully opposed the grant of a decree on some basis or other.
Lord Wilson also quoted from the same report in which it was stated:
Mr Owens may believe that his defence has not been ‘futile’ but the findings set out in the above quotation will resonate with many family solicitors.
Lord Wilson considered six cases dating back to 1972 to identify the test that the court needs to apply. These cases confirm that the inquiry has three stages: first (a), by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; second (b), to assess the effect which the behaviour has had upon this particular petitioner in the light of the latter’s personality and disposition and all of the circumstances in which it occurred; and third (c), to make an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable.
In explaining the application of this test Lord Wilson identified a number of other early cases in which a divorce had been refused and indicated that he could not readily think of a decision which more obviously requires to be informed by changing social norms than an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation of continued life together would be unreasonable.
So where is the bar set?
Lord Wilson also referred to an earlier decision of his own in which he had observed ‘in default, the courts have set the unreasonableness of the behaviour required to secure the success of the petition…, even when defended, at an increasingly low level’.
That implies that the test, which peculiarly has both objective and subjective elements, is often not too hard to pass. The behaviour alleged does not necessarily need to be ‘grave or weighty’, although it seems blameworthy or grave behaviour often makes it more likely that the third stage of the test will be successfully crossed. In addition it is not necessary that the behaviour complained of was the cause of the breakdown of the marriage. The petitioner has got to show that the marriage has irretrievably broken down and prove one of the five ‘facts’ but there does not need to be a causal link between the two.
In practice, solicitors will hopefully continue to adhere to the Family Law Protocol issued by the Law Society. That states:
In many cases attempts will continue to be made to try and agree the particular allegations with the respondent before issue so as to avoid the possibility of a contested divorce. However, where such agreement is not forthcoming: