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Owens v Owens
Factual and Procedural Background
The Appellant and the Respondent married in 1978, built significant joint wealth, and lived in a manor house in The County. In 2012 the Appellant consulted solicitors about divorce and in 2015 issued a petition under section 1(2)(b) of the Matrimonial Causes Act 1973, alleging that the Respondent’s behaviour meant she could not reasonably be expected to live with him. The Respondent filed an answer and defended the suit.
Judge [Tolson] QC heard the defended petition in January 2016. Relying on the Appellant’s written statement but hearing oral evidence on only a few of 27 pleaded incidents, the judge dismissed the petition, characterising the allegations as “flimsy” and finding that the Appellant had exaggerated their seriousness.
The Court of Appeal (President of the Family Division, Judge [Hallett] LJ and Judge [Macur] LJ) dismissed the Appellant’s appeal on 24 March 2017. The Supreme Court granted permission to appeal on the basis that the case might raise a novel question of statutory interpretation, but that issue narrowed considerably during argument when the Appellant conceded that her principal submission went too far.
Legal Issues Presented
- What must a petitioner establish under section 1(2)(b) of the Matrimonial Causes Act 1973: is the focus primarily on the respondent’s behaviour, its effect on the petitioner, or both?
- Did Judge [Tolson] QC err in law or principle—particularly by:
- Applying an unduly high threshold for behaviour;
- Failing to take account of the cumulative impact of the Respondent’s conduct; or
- Requiring proof that the behaviour caused the breakdown of the marriage?
- Should the Supreme Court interfere with the trial judge’s evaluative findings on appeal?
Arguments of the Parties
Appellant's Arguments
- The judge mis-directed himself by searching for “unreasonable behaviour” rather than asking whether it was unreasonable to expect the Appellant to continue living with the Respondent.
- He examined only three isolated incidents and ignored the cumulative effect of a longstanding pattern of authoritarian conduct.
- Passages in the judgment suggest he required proof that the Respondent’s behaviour caused the marriage to break down, contrary to authority.
- Social norms have evolved and the statutory test should be applied at a lower threshold than in past decades.
Respondent's Arguments
- The judge gave himself a legally correct self-direction derived from Livingstone-Stallard and applied it conscientiously.
- He was entitled to find the pleaded examples exaggerated and insubstantial after seeing and hearing both parties.
- The Court of Appeal properly upheld those factual assessments; there is no basis for a further appellate intervention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pheasant v Pheasant [1972] Fam 202 | Primary emphasis is on the respondent’s behaviour; objective test with subjective elements. | Used to confirm the three-stage inquiry still governing s.1(2)(b). |
| Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47 | “Right-thinking person” formulation of the test. | Quoted by the trial judge as part of his self-direction; approved by the Supreme Court. |
| O’Neill v O’Neill [1975] 1 WLR 1118 | Endorsed the Livingstone-Stallard question. | Cited as historic approval of the governing test. |
| Thurlow v Thurlow [1976] Fam 32 | Behaviour can include omissions or conduct due to illness; blame not required. | Relied on to reject any requirement of fault. |
| Stevens v Stevens [1979] 1 WLR 885 | Need to consider cumulative behaviour; irrelevance of causation of breakdown. | Explained why causation is not an element of s.1(2)(b). |
| Balraj v Balraj (1981) 11 Fam Law 110 | Objective test tempered by subjective impact on petitioner. | Reaffirmed the mixed objective/subjective approach. |
| Buffery v Buffery [1988] 2 FLR 365 | Behaviour need not be “grave and weighty”; causation not necessary. | Cited to reject the need for serious misconduct. |
| Jamieson v Jamieson [1952] AC 525 | Courts must avoid dissecting incidents in isolation; look at the whole picture. | Discussed when analysing whether the judge ignored cumulative effects. |
| Katz v Katz [1972] 1 WLR 955 | Warned against the misleading shorthand “unreasonable behaviour.” | Used to show that the statutory focus is on the unreasonableness of expecting continued cohabitation. |
| Bannister v Bannister (1980) 10 Fam Law 240 | Re-emphasised distinction between unreasonable behaviour and unreasonable expectation. | Cited when examining the trial judge’s language. |
| Ash v Ash [1972] Fam 135 | Illustrated now-outdated social norms. | Used to show how the statutory test is “always speaking.” |
| Priday v Priday [1970] 3 All ER 554 | Historic example of attitudes to marital relations. | Highlighted changing societal standards. |
| R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 | Doctrine that statutes are “always speaking.” | Supported the view that application of s.1(2)(b) evolves with social norms. |
| Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 | Family law must reflect changing social and moral values. | Cited analogously in discussing evolution of the test. |
| Miller Smith v Miller Smith [2010] 1 FLR 1402 | Judicial call for legislative reform of divorce law. | Referred to when noting the low modern threshold for undefended petitions. |
Court's Reasoning and Analysis
The Supreme Court began by restating the three-stage inquiry derived from the older authorities:
- Identify what the respondent did or did not do (fact-finding).
- Assess the impact of that behaviour on this particular petitioner in all the circumstances (subjective/objective mix).
- Evaluate whether, in light of (1) and (2), it is unreasonable to expect the petitioner to continue living with the respondent (objective judgment).
It held that these authorities still supply the correct legal framework, although their application must reflect contemporary social norms. The Court rejected the invitation—advanced principally by the intervener and initially by the Appellant—to re-interpret the subsection so that the respondent’s behaviour would become largely irrelevant; such a construction was inconsistent with the statutory wording.
Turning to the appealed decision, the Justices acknowledged “uneasy feelings” about the compressed procedure and the trial judge’s focus on only three incidents. Nevertheless, they concluded that:
- Judge [Tolson] QC had given himself a legally adequate self-direction, quoting the orthodox Livingstone-Stallard formulation.
- Although he referred to “unreasonable behaviour,” the judgment as a whole demonstrated that he applied the correct statutory test.
- The Court of Appeal had already scrutinised and upheld his evaluative conclusions; appellate interference would require a clear legal error or misapplication of principle, which was not established.
- Passages suggesting the judge linked behaviour to causation of breakdown were “unfortunate” but too weak to overturn the decision, particularly as counsel had not pursued the point before the intermediate appellate court.
Consequently, no error of law or principle was identified that warranted setting aside the findings of fact or the overall evaluation.
Holding and Implications
APPEAL DISMISSED.
The Appellant remains married to the Respondent. The immediate effect is that she cannot obtain a decree under section 1(2)(b) on the present evidential record. The Court noted that, if the parties remain apart until 2020, the Appellant could rely on the five-year separation ground, to which the Respondent would have no defence. While emphasising that Parliament alone can reform divorce law, the judgment openly invites legislative reconsideration of a regime that compelled this outcome yet rarely prevents divorce in practice.
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