CASE NAME AND CITATION

Owens ( Appellant ) v Owens ( Respondent ) [2017] EWCA Civ 182 , [2017] 4 WLR74

COURT AND JUSTICE

Court of Appeal (Civil Decision) : Lady Hale (President), Lord Mance, Lord Wilson, Lord Hodge, Lord Black

PARTIES
Appellant : Mrs Owens . Respondent : Mr Owens

MATERIAL FACT
Mrs Owens, the Appellant and Mr Owens , the Respondent were married in 1978.Mrs Owens had been
contemplating a divorce since 2012 but it was not until February 2015 that she left the matrimonial
home and petitioned for divorce in May 2015.

Mrs Owens before the court and relied on Mr Owens’ unreasonable behavior (include 27 individual
examples of Mr Owens being moody, argumentative, and disparaging her in front of others) and said
that she could not but reasonably be expected to live with Mr Owens anymore. Mrs Owens with the
purpose to demonstrate that the marriage had irretrievably broken down which based on s.1(2)(b) of
the Matrimonial Cause Act 1973.

Mr Owens defended the petition on the basis that his behavior had not been unreasonable in the
context of their marriage.

QUESTION(S) OF LAW/ISSUES(S)

The sole garden for divorce is that marriage has broken down irretrievably.

The issues before the court are:

Whether Mrs Owen able to prove that the Mr Owens behaved in such a way which that she cannot
reasonable be expected to live with him as to demonstrate to the court that the marriage has broken
down irretrievably.
DECISION
The Supreme Court unanimously dismisses the appeal, with the result that Mrs Owens must remain
married to Mr Owens for the time being. Lord Wilson gives the majority judgment, with whom Lord
Hodge and Lady Black agree. Lady Hale and Lord Mance each give a concurring judgment

DETAIL REASON FOR THE DECISION

It is important to bear in mind the legal context to this dispute, namely that defended suits for divorce
are exceedingly rare. While the family court recognizes that s.1 of the Matrimonial Causes Act 1973
must be conscientiously applied, it takes no satisfaction when obliged to rule that a marriage which has
broken down must nevertheless continue in being . The expectations are that almost every petition
under s. 1(2)(b) will succeed, that the evidence before any contested hearing will be brief, and that the
judgment of the court in such a hearing will almost certainly result in the pronouncement of a decree.
This is the background to the contested hearing in this case, and explains why Mrs Owens’ advisors
agreed to a short hearing with no external witnesses to corroborate her evidence.

When applying s. 1(2)(b) the correct inquiry is: (i) by reference to the allegations of behavior in the
petition, to determine what the respondent did or did not do; (ii) to assess the effect which the behavior
had upon this particular petitioner in light of all the circumstances in which it occurred; and (iii) to make
an evaluation as to whether, as a result of the respondent’s behavior 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 has been applied for many years but the application of the test to the facts of an
individual case is likely to change over time, in line with changes in wider social and moral values . The
most relevant change over the past forty years is the recognition of equality between the sexes, and of
marriage as a partnership of equals.

At the hearing, the judge gave himself the correct self-direction; he understood he was applying an
objective test, but with subjective elements. The majority nevertheless have concerns about other
aspects of the judge’s analysis. In particular, they have an uneasy feeling about the summary despatch
of a suit which was said to depend on an authoritarian course of conduct, when the judge had
scrutinized only a few individual incidents of Mr Owens’ behavior. However, uneasy feelings are of no
consequence in an appellate court. A first-instance judge has many advantages in reaching the relevant
conclusions, and Mrs Owens’ complaints about the judgment have already been rehearsed and
dismissed by the Court of Appeal. In such circumstances it is most unlikely for it to be appropriate for
the Supreme Court to intervene. However, the majority invite Parliament to consider replacing a law
which denies Mrs Owens a divorce in the present circumstances.
RATIO DECIDENDI
Parties required to provide a correct interpretation of the subsection. The inquiry has three stages: first
(a), by reference to the allegations of behavior in the petition, to determine what the respondent did or
did not do; second (b), to assess the effect which the behavior had upon this particular petitioner in the
light of the latter’s personality and disposition and of all the circumstances in which it occurred; and
third (c), to make an evaluation whether, as a result of the respondent’s behavior 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.

But, although its interpretation by these courts remains correct even after 40 years, the application of
the subsection to the facts of an individual case is likely to change with the passage of the years. In R
(Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687.

Expectations of whether it is reasonable to expect one spouse to continue to live with the other, in the
light of the way the latter has behaved and its effect upon the former, have indeed changed over the 47
years since the Divorce Reform Act 1969 came into force.

The social norm which has changed most obviously over that time is the recognition that marriage is a
partnership of equals. Indeed, the equality of the sexes is now also a legal norm, reflected in
developments not only in family law but also in equality and anti-discrimination law.

As well as unreasonable behavior there is the fact of two years separation with consent. However, Mrs
Owens can’t rely on this fact as Mr Owens does not consent to the divorce.