On Friday the 24 March 2017, the Court of Appeal, which included the President of the family court, refused the appeal of Mrs Tini Owens against the refusal of His Honour Judge Tolson, to grant the wife a divorce. The decision of the trial Judge was that even though he found that the marriage had broken down and the prospects of reconciliation hopeless, he nonetheless did not find that the wife had proved the allegations in her unreasonable behaviour petition.
The task for the Court of Appeal was to consider whether or not the Judge was “wrong” in coming to this conclusion on the facts and therefore, the Court of Appeal entitled to interfere with the trial Judge’s decision pursuant to CPR 52.11(3)(a).
The facts of the case are, in many ways, unremarkable. It was a long marriage with grown up children. They were not getting on. The wife sought a divorce on the basis of unreasonable behaviour and the allegations included that :-
- The husband prioritised work over family life, often missing family holidays and family events;
- The husband had not provided the wife with love, attention or affection and she felt unsupported;
- The husband suffered from mood swings which caused frequent arguments which were distressing and hurtful;
- The husband had been unpleasant and disparaging about the wife, her family and friends;
A very typical divorce set of particulars designed not to paint the husband as a despicable rogue but still setting out the unhappiness and sadness that the wife was experiencing.
In many cases, respondents receiving such a petition would simply shrug their shoulders, return the acknowledgement of service form indication they are not defending the divorce but write a side letter to the Judge saying the petitioner was just as unreasonable. However, Mr Owens decided to defend the case. The wife amended her petition to beef up the particulars. In statements and oral evidence at trial, there were various incidences cited at airports, restaurants and pubs.
In law a petitioner can obtain a divorce if they can show that their marriage has “broken down irretrievably”. Section 1 of the Matrimonial Causes Act 1973 allows a petitioner to prove this in one of only five ways – known as “the five facts” – one of which under Section 1(2)(b) “that the respondent’s has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. Sub-section (3) imposes a duty on the Court “to enquire, so far as it reasonably can, into the facts alleged by the petitioner”. It rarely does. There is no need as 99% of divorces are uncontested.
The Court must make findings of fact as to whether the instances of unreasonable behaviour occurred but also what impact that conduct had on the petitioner. The test of what is unreasonable behaviour is set out in Rayden, the divorce bible text, which the Court of Appeal approved is “it has been said that the correct test to be applied is whether a right thinking person, looking at that particular husband and wife or civil partners, would ask whether the one could reasonably be expected to live with the other taking into account all circumstances of the case and the respective characters and personalities of the two parties concerned”. As Hallett LJ apparently said during the course of arguments at the appeal hearing, “what may be regarded as trivial disagreements in a happy marriage could be salt in the wound in an unhappy marriage”. As relationships go on, people’s behaviour does not necessarily change but the perception of it can. A husband can at the beginning of a relationship “love her infectious giggling” but in a deteriorating relationship, this becomes “an irritating laugh”. What starts as “Oh darling you are so funny when you are a little tipsy” becomes “an irritating drunk”.
A good working example of how the test has a subjective element is the case that I conducted many years ago. I acted for a husband who received an unreasonable behaviour petition which was based exclusively on golf:-
- He played too much golf;
- He talked about golf too much;
- He socialised with people who played golf a lot;
- He spent too much money on golf.
It was abundantly clear, and the husband accepted that his wife had no interest in golf and found his obsession with it unsatisfying. On the other hand, my client was absolutely delighted that his life had been encapsulated in this way. He had shown the petition to various of his golf friends who all roundly agreed that he was “THE IDEAL HUSBAND”. What is unreasonable behaviour to one may not be to another. That divorce, however, concluded smartly and for all I know, the husband is still hacking his way round golf courses in Essex and the wife has never heard talk of the little white ball since.
Almost hilariously and certainly ironically, the Court of Appeal heard the wife’s appeal on St Valentine’s day, 14 February 2017. The President, in a wonderful section of the judgment discusses the extent to which the Court has the ability to bring law up to date. He says “so in my judgment … the words “cannot be reasonably expected” that objective test has to be addressed by reference to the standards of the reasonable man or woman on the Clapham omnibus; not the man on the horse drawn omnibus in Victorian times which Lord Bowden would have had in mind … not the man or woman on the route master clutching their paper bus ticket on the day in October 1969 when the 1969 Act received the royal assent but the man or woman on the Boris bus with their Oyster card in 2017”. The Court went on to consider the judgment of Judge Tolson in which he described the wife’s petition as “hopeless” “anodyne” “scraping the barrel” and “lacked beef”.
The Appeal grounds and decision
Mrs Owens’ grounds for appeal were in broad summary the trial Judge:-
- failed to make essential findings in respect of the pleaded allegations
- failed to undertake a proper assessment of the wife’s subjected characteristics
- failed to take an assessment of the cumulative impact her husband’s behaviour had on the wife
- failed to apply the law properly to the facts
- failed to take into account the wife’s Article 8 and Article 12 rights under the European Convention.
The President outlined what the function of the Court of Appeal was in assessing the trial Judge’s judgment. He confirmed that the trial judge is in the best position to consider the case, having read the file, the court bundle and the evidence of the parties under cross-examination. The Appeal Court rejected the idea that the Judge was “plainly wrong”. The Appeal Court rejected the proposition that the trial Judge was right to direct that the case focus on a selection of the allegations after having asked Mr Philip Marshall QC, who led for the wife, to kick his best/worst allegations to be examined in detail. The Judge could not be criticised for finding the facts as he did, both in terms the extent to which the incidents of unreasonable behaviour were proven, but also the effect that it had upon the wife nor indeed, the cumulative impact upon the wife. The Human Rights’ point was also rejected on the basis that there was no convention right to be divorced. The appeal fails and Mrs Owens has the sympathy of the Court of Appeal but not the divorce she desires.
The paragraphs dealing with the reason reasons for rejecting the appeal are short and perhaps underline that this appeal never really had any prospects of success once the Judge had made the findings that he had. The judgment gives more space to the prospect of the law changing. The President goes through the history of divorce law since the Divorce Reform Act 1969 which was then re-enacted in the Matrimonial Causes Act 1973. This remains the legislation that governs divorce and is out of date.
The President reflects on the unsatisfactory position regarding allegations of unreasonable behaviour and quotes Resolution’s 2016 Guide to Good Practice on Correspondence in which a petitioner solicitor writes to a prospective respondent and invites the prospective respondent to, in effect, co-operate in the drafting of allegations of unreasonable behaviour. Indeed, Resolution’s new code of practice emphasises that members are to “reduce or manage any conflict and confrontation; for example, by not using inflammatory language”.
It is unfortunate that the trial Judge is so critical of the wife in her approach. There is a risk that following the Owens case, that lawyers will feel obliged to advise their clients to make stronger and more challenging allegations in the petition. Resolution lawyers frequently, at present, encourage petitioners not to put in every allegation and not to put in the most serious allegations because experience shows that doing so, adversely affects the way the case is conducted in the future. This is especially relevant in cases where there are children issues. If the allegations in the divorce petition raise the temperature of the arguments between a separating couple, then that adversely affects the parties and particularly the children. It is an unsatisfactory state of affairs. But before family lawyers start drafting particulars in a more forthright way they should remember that the petition failed not because the words used in the petition were not enough, it was because the judge decided that Mrs Owens did not have any evidence of substance to support the allegations.
What is the way forward for Mrs Owens?
Her petition for unreasonable behaviour was filed on the 6 May 2015 and the judge dismissed the wife’s unreasonable behaviour petition. One might hope that the husband might agree to a divorce based on 2 year’s separation with consent. The wife contends that the parties have been living separate lives for some years now. If Mr Owens refuses to give his consent then unless parliament changes the law, Mrs Owens will have to present a fresh petition but not until they have been separated for a full 5 years. One cannot begin to imagine the disappointment and sadness that she must feel, not least with the expense the case must have taken but also what an earth the point is in this marriage continuing.
Resolution for change
All the time that Mrs Owens is battling for a divorce in the Family Court, Resolution, throughout the same timeline, has been campaigning for “no fault” divorce. It is a fundamental plank of their current objectives. Resolution has arranged all party events at Parliament setting out the considerable disadvantages of “fault” divorce, unreasonable behaviour and adultery. Further, the advantages to separating couples, the Courts and the Government’s budget of a “no fault” divorce. Resolution has compared and contrasted how other countries deal with divorce and have shown that in countries that have “no fault” divorce, their divorce rate is no higher than that in the UK. Moreover, the process more civilised and straightforward. Introducing “no fault” divorce will not mean that the parties do not continue t0 have differences over finances and the arrangements for the children, but what will happen is that unnecessary flammable liquid will not be poured onto already smoking fires. The issue will be debated no doubt at Resolution’s forthcoming annual conference in Birmingham on the 31st of March and 1st of April.
What, might one think in this case is that there has been an awful lot of investigation spent in relation to instances of both the wife’s and the husband’s behaviour and incidents that have taken place in their marriage. Nonetheless, the wife is absolutely clear she wants to end the marriage and live separately. She has pursued this case for a number of years in order to achieve a divorce. What useful purpose for the Courts and, indeed, for the State, that couples should remain together when one does not want to after a reasonable period of reflection. If, after a period of months, it is clear to one party that they want to end the marriage, how does it serve that couple or society as a whole to keep them married?
The momentum for reform is in fact bolstered by the Court of Appeal’s rejection of Mrs Owens’s petition for divorce. The case highlights the difficulties that parties can face when a divorce is contested. There is now cross-party support for “no fault” divorce. What remains is for the Government to find both the will and the time to submit to pass what would be fairly simple and straightforward legislation.