Tini Owens has lost a Supreme Court appeal to be granted a divorce because she said her marriage was unhappy.
In May 2015 Mrs Owens issued a divorce petition which has been the subject of a great number of court hearings, concluding in the Supreme Court proceedings. Mrs Owens’ petition was based upon section 1(2)(b) of the Matrimonial Causes Act 1973, in which she alleged that her marriage to Mr Owens had broken down irretrievably and that he “has behaved in such a way that [she] cannot reasonably be expected to live with [him]”. The statement of case was comprised of five, anodyne paragraphs. In them, Mrs Owens alleged that Mr Owens had prioritised his work over their life at home, that his treatment of her had lacked love or affection, that he had often been moody and argumentative, that he had disparaged her in front of others and that as a result, she had felt unhappy, unappreciated, upset and embarrassed and had over many years grown apart from him.
The Supreme Court clarified the “linguistic trap” of section 1(2)(b) argued by Mrs Owens, namely that “unreasonable behaviour” has always been the family lawyer’s shorthand description for the content of the subsection, arguing the subsection does not require the behaviour to be unreasonable and indeed, the behaviour itself does not need to be the cause of the breakdown of the marriage, but it is that the expectation of continued life together that should be considered unreasonable by the petitioning party.
In carrying out the consideration of a petition, the court will conduct a three step process: firstly, by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do. Secondly, to assess the effect which the behaviour had upon this particular petitioner in the light of the latter’s personality and disposition and of all the circumstances in which it occurred. Finally, 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 considering a petition based on unreasonable behaviour, the court must apply an objective test in determining what would the hypothetical reasonable observer make of the allegations against the respondent party, but with such an assessment having subjective elements, i.e. the individual circumstances of the spouses and the marriage. As Dunn J stated in Livingstone-Stallard  Fam 47:
”Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?”
In 2016, 114,000 petitions for divorce which were filed in England and Wales, with fewer than 800 defences filed. Of those, the estimated number which proceeded to a final, contested hearing was 0.015% of the total petitions filed, approximately 17 in that whole year. The degree of conflict between the parties which is evident in a fully defended suit will of itself suggest to the family court that in all likelihood their marriage has broken down.
The Supreme Court confirmed that Mrs Owens must now wait until 2020 to pursue a divorce on the grounds of 5 years’ separation, as she continues to live apart from her husband.
Speaking after the judgment, former Resolution Chair Nigel Shepherd said: “Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it. It should not be for any husband or wife to ‘prove’ blame as the law requires many to do – this is archaic, creates needless conflict, and has to change.”
If you would like to discuss issues relating to your separation or divorce following the breakdown of a relationship, contact one of our expert solicitors today on 01234 88977 or 0207 177 9777 for a free consultation. Serving Bedford and London, our lawyers can help you with your family law matters.