The Court of Appeal today handed down judgment in the case of Owens v Owens dismissing the wife’s appeal against the dismissal of her petition for divorce based on her husband’s unreasonable behaviour, leaving her (as the Court of Appeal acknowledged) ‘trapped in [a] loveless marriage’. Philip Marshall QC represented the wife, who intends to seek permission to appeal to the Supreme Court.
The Court of Appeal adopted a strict approach to its limited powers to interfere and review the trial judge’s findings of fact and conclusions, on the basis that he correctly applied the current law as laid down by Parliament and was entitled to reach the conclusions he did. The Court of Appeal concluded the law is correctly set out in the current edition of Rayden & Jackson on Divorce and Family Matters, ed 18, vol 1 at para 9.20 and 9.21. In summary:
What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?
The Court of Appeal accepted that in an unhappy marriage a particular piece of ‘conduct’ may have more impact and be less ‘reasonable’ than exactly the same conduct if the marriage is happy, and opined that ‘what may be regarded as trivial disagreements in a happy marriage could be salt in the wound in an unhappy marriage’. So too, the Court of Appeal accepted that in answer to the question whether the petitioner ‘cannot reasonably be expected’ to live with the respondent, the ‘objective test’ had to be addressed by reference to the (modern) standards of the man or woman not on the Clapham omnibus but on the Boris Bus with their oyster card in 2017.
In an excoriating attack upon what the President categorised as ‘the hypocrisy and lack of intellectual honesty’ characteristic of the current law and procedure, Sir James Munby questioned whether the public policy which still underlies current ‘fault based’ divorce is justified given in the vast majority of cases the petition proceeds by consent and without any interrogation by the court.
In dismissing the wife’s appeal, Lady Justice Hallett did so with ‘no enthusiasm whatsoever’ recognising that the Court of Appeal’s decision would leave Tini Owens in a very unhappy situation and urged the husband to reconsider his position given, on any view, the marriage is over.
Tini Owens has indicated she intends to seek permission to appeal to the Supreme Court.
The full judgement can be found here
Philip Marshall QC is Joint Head of Chambers at 1 King’s Bench Walk and the current Chairman of the Family Law Bar Association.