Supreme Court—judge applied right test in refusing defended divorce petition
Family analysis: Philip J Marshall QC, Stephen Jarmain and Millie Benson, of 1KBW, examine the Supreme Court’s refusal in Owens v Owens  UKSC 41,  All ER (D) 144 (Jul) to interfere with a judge’s dismissal of the appellant wife’s divorce petition based on section 1(2)(b) of the Matrimonial Causes Act 1973 (MCA 1973), which was opposed by the respondent husband.
What are the practical implications of the judgment?
While the Supreme Court largely approved the existing case law and dismissed the appellant’s appeal, there is concern among practitioners that the decision will have unintended practical implications, with lawyers in future ‘beefing up’ so-called behaviour petitions and more respondents choosing to defend or contest the divorce petition.
It had become good practice, endorsed by the national family lawyers’ organisation Resolution, for practitioners to draft purposely petitions that were anodyne and to attempt, where possible, to agree the terms of the proposed pleadings. This is precisely what the appellant did, although she was subsequently given permission to amend her original petition when it became apparent that the respondent would contest the divorce. It was also previously assumed by most that contesting a divorce was a real ‘hiding to nothing’, with the Family Court almost inevitably finding a way to grant a divorce wherever one party felt that the marriage had come to an end. Indeed, as the Supreme Court notes, it appears that the respondent may have been the only respondent to have successfully contested a divorce petition in recent times.
Notwithstanding that the majority in the Supreme Court explicitly discouraged the presentation of increasingly ‘beefy’ petitions, some practitioners worry that the court’s rejection of the appeal will have a number of unfortunate consequences—for example that:
- in order to avoid the risk that their petition will be rejected, petitioners will be encouraged to make more serious allegations of conduct and say more about the effects of that conduct on them than might previously have been the case, which will cause increased acrimony between the parties
- respondents may be inspired to contest divorce petitions more frequently
- where a respondent does contest the divorce, the petitioner and courts will be forced to list the case for a lengthy final hearing to ensure that all allegations are properly explored in evidence, and to allow for circumstances in which a petitioner relies on a cumulative course of conduct by the respondent
While these outcomes would no doubt not be intended by the Supreme Court, there is a real concern that they will eventuate.
On a more positive note, the case may well assist in seeing the shorthand term ‘unreasonable behaviour’ fall into desuetude. The statute does not refer to ‘unreasonable behaviour’ but rather behaviour such that ‘the petitioner cannot reasonably be expected to live with the respondent’. The shorthand for the subsection typically used by family practitioners carries the unfortunate implication that the behaviour itself is what should be considered, rather than its effect on the petitioner. The Supreme Court was clear that this phrase should no longer be employed by practitioners and judges, as it is misleading and has the potential to cause confusion and error.
The judgment also gives some encouragement to Parliament to revisit current divorce laws. The Ministry of Justice has since confirmed that it is actively considering reform.
What was the background?
The appellant, who is 68, and the respondent, who is 80, were married in 1978 and have two adult children. The appellant petitioned for divorce, alleging that the respondent had behaved in such a way that she could not reasonably be expected to live with him.
Unusually, the respondent defended the divorce.
At a case management hearing, the case was listed for a short day-long final hearing. This would be typical in the Family Court, where judges are very reluctant to dedicate precious court time to hearing petitions which are almost inevitably granted. The appellant was given permission to amend her petition from its original anodyne form to include 27 additional allegations in relation to the respondent’s conduct. He did not deny many of the allegations, though he interpreted events differently or stated that his intentions in doing or saying something were not as the appellant had thought.
At the final hearing, HHJ Tolson QC encouraged the advocates to select a few of the allegations and cross-examine on those issues only, to give him a flavour of the case.
The judge found that the appellant had not proved that the respondent’s behaviour was such that she should not be expected continue to live with him. Although ultimately the appeal was rejected, the Supreme Court expressed a number of concerns as to the judge’s approach, including his repeated use of the phrase ‘unreasonable behaviour’, his apparent focus on what caused the breakdown of the marriage (an irrelevant consideration) and his failure to consider the totality of the alleged conduct by the respondent.
The appellant appealed to the Court of Appeal, but her appeal was dismissed. She was given permission to appeal by the Supreme Court, with Resolution intervening.
What did the Supreme Court decide?
The court expressed unease with the first-instance judgment. Lady Hale was troubled by the process adopted below, in particular that there was insufficient time available for proper consideration of the cumulative allegations. Lady’s Hale’s view was that the proper disposal would have been to send the case back for rehearing.
Ultimately though, the court felt held that it could not interfere with the decision, especially given that it had been reviewed and the appeal rejected by the Court of Appeal. Lady Hale agreed to dismiss the appeal only reluctantly, on the basis that the appellant herself did not seek a rehearing, which could have been the only way to dispose of the case if the appeal were allowed.
In terms of the law, the Supreme Court approved, with slight amendment, the existing jurisprudence to be applied when considering a petition under MCA 1973, s 1(2)(b). The majority judgment sets out the following three-stage approach which should be adopted:
- to determine, by reference to the allegations of behaviour in the petition, what the respondent did or did not do
- to assess the effect which that 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
- 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
This test arguably moves the test slightly beyond the previous case law, with the second stage emphasising the need to consider the effect of the behaviour on the petitioner and the third stage requiring a consideration of whether the expectation of living together is unreasonable, rather than the behaviour being unreasonable. This is, we would suggest, a clearer and more explicit summary of the position, and also suggests a clearer although not exclusive focus on the effect of the alleged behaviour on the petitioner as part of the overall inquiry.
The previous test, set out in Balraj v Balraj  Lexis Citation 668, had referred to a ‘subjective element’ but had been less clear as to how the court should apply it. Perhaps helpfully, the Supreme Court does not talk in terms of an ‘objective’ or ‘subjective’ test, which has a tendency to confuse.
Philip J Marshall QC, Stephen Jarmain and Millie Benson appeared for the appellant wife in this case.
Interviewed by Robert Matthews.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.