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27 July 2018

Owens v Owens – Lessons to be learnt

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:

‘Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances’.

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?

  • Talk of ‘unreasonable behaviour’ is a useful but not especially accurate shorthand for what the statute actually requires. The basis of the relevant sub-section is not ‘unreasonable behaviour’ but ‘behaving in such a way that the petitioner (ie the person seeking the divorce) cannot reasonably be expected to live with the respondent (ie the person opposing the divorce)’. That is a significantly different concept.
  • The Supreme Court is not advocating a growth in the number of fully contested divorces nor is the judgment a licence for a disgruntled spouse to defend applications for a divorce.
  • The law to obtain a divorce on grounds of behaviour remains the same but changing social attitudes will influence its application.

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:

‘While respondents are typically focussed on divorce as a means to establish their “truth” of why the marriage broke down, the family justice system is predicated on settlement and compromise. That settlement orientation applies even in cases where a formal defence has been issued, with encouragement to settle at each stage of the proceedings, up to and including, contested hearings. The very active promotion of settlement at each stage, with lawyers and judges working in concert, reflects the dominant family justice perspective that agreed outcomes are less costly and damaging, that trying to apportion blame is a fruitless and inherently non-justiciable task and that defence is futile where one party has decided that the marriage is over’.

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.

The correct test

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.

Conclusion

In practice, solicitors will hopefully continue to adhere to the Family Law Protocol issued by the Law Society. That states:

‘Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court…’.

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:

  • it will be advisable to set out the particulars of misconduct in such a way as to specifically address the test confirmed by the Supreme Court. Particular care will need to be given to the wording of the allegations where, as in this case, reliance is placed upon the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time;
  • careful thought will need to be given to how the allegations are to be proved at trial in the event that the case does not settle. This may require that the parties and other witnesses are called to court to give oral evidence and be cross-examined. The trial needs to be set up and conducted in such a way that the full flavour of the conduct alleged can be properly evaluated; and
  • fully contested divorces will remain rare but where they occur, they will be hugely expensive, time consuming and stressful for the parties. In the light of these considerations all possible steps should be taken to try and resolve the underlying dispute in some other way, for example by negotiation or mediation.

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