After 40 years of marriage, Tini Owens filed for divorce in 2015. The facts of the breakdown appear not dissimilar from the experiences of many divorcing couples, indeed this may be largely why the case has raised such strong feelings in many. A wife who for many years felt unloved, neglected in favour of work and who eventually had an affair before deciding the marriage could no longer continue. This week her petition, defended by Mr Owens to the highest level of appeal, was dismissed by a unanimous Supreme Court leaving her trapped in a loveless marriage until 2020, when she will at last no longer require Mr Owens consent.
So why has the Supreme Court refused to grant her divorce?
The law on divorce in England and Wales has been frequently criticised as at best, overly complicated and at worst no longer fit for purpose in modern society. The reason for this is that while there is only one ground for a divorce petition of “irretrievable breakdown” [s1 Matrimonial Causes Act 1973 (MCA)] a petitioner must prove such by way of one of five ‘facts’ laid down [s1(2)]:
- that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
- that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
- that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
- that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition … and the respondent consents to a decree being granted;
- that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition …
Mrs Owens petitioned under fact (b) known colloquially (and inaccurately) as ‘unreasonable behaviour’. Her husband defended the petition, arguing both that the fact itself was unfounded and that the marriage had not in fact broken down irretrievably, something done in less than 2% of all divorces. At the hearing, therefore, Mrs Owens presented 27 separate examples of Mr Owen’s behaviour which had left her feeling hurt, distressed or embarrassed and which, she claims, resulted in it being unreasonable to expect her to continue living with him. The FPR Rules 2010 r1.1, and by agreement with both parties, militated towards as short a proceedings as possible to prevent unnecessary cost and delay. This resulted in Judge Tolson at first instance determining only 3 or 4 examples ought be cross-examined upon.
Judge Tolson concluded the petition was “hopeless”, “anodyne” and the allegations “at best flimsy” were of “minor altercations of the kind expected in a marriage” which Mrs Owens exaggerated both in context and seriousness. Notably he especially focused on the fact of Mrs Owens affair to conclude that an “objective observer” could scarcely criticise Mr Owens behaviour in the time after he discovered the adultery, leading to the very real concern that adulterous petitioners may have a significantly higher bar to meet to prove the ‘unreasonable behaviour’ fact than their more faithful counterparts. Fortunately, this was rejected by Lord Wilson in his leading judgement at the Supreme Court, making it clear that it would be “wrong to infer” that a petitioner also conducting an affair would have no case.
Unfortunately for Mrs Owens neither the Court of Appeal nor the Supreme Court is able to overturn a pure finding of fact, such as the above, by a first instance judge unless it had no basis in the available evidence. As a result, the appeal to the Supreme Court was permitted only on the assertion of a novel interpretation of s1(2)b) MCA [above]. It was argued that s1(2)b) ought to be interpreted as requiring not that Mr Owens behaviour must have been such that she could not be reasonably expected to live with him but rather that the effect of his behaviour on her must be of such character. An interpretation, despite being echoed by Resolution (acting as Intervenor), criticised by the Court as going “too far” as it would be “impossible to avoid focus on the respondents behaviour” and ultimately dropped by counsel during the hearing.
The closest this judgement comes to providing satisfaction, unsurprisingly, is Lady Hale’s opinion. She is the only judge to label the three most unsettling elements of Judge Tolson’s reasoning for what it is humbly suggested they are: “errors”. Firstly, Judge Tolson repeatedly fell into the aforementioned ‘unreasonable behaviour’ trap leading to Lady Hale’s concern that he may have assessed the allegations by reference to the wrong test, although Lord Mance felt the correct statement of the test in Tolson’s conclusion removes any such possibility. Secondly, that the trial judge may have erroneously evaluated the fact as requiring the behaviour to cause the breakdown. There is no such requirement for causation between ‘fact’ and the sole ground of divorce.
Finally, that the judge’s decision to hear detailed submission on only 4 of the 27 allegations prevented the possibility of properly assessing the cumulative impact of Mr Owens individually “trivial” behaviours to understand the “authoritarian, demeaning and humiliating conduct” which over time they may well have amounted to. Analogising to the law on constructive dismissal, Lady Hale comments that through focus on isolated events alone one could conceivably “fail to see the eloquence of the story painted by the whole”. Despite Lord Mance dismissing this as “fanciful”, it appears self-evidently right in the context of a long marriage which has led to an unhappiness in at least one party so deep as to drive them to pursue freedom as far as the Supreme Court. Such behaviour hardly suggests the triviality Judge Tolson seemed to find so easily. Despite these findings, however, the only possibility for relief would be remission for rehearing - a prospect viewed by both parties with “dread”. Ultimately, Lady Hale felt it inappropriate to do anything but dismiss the appeal.
So where has this judgement left divorcing couples?
As Lady Hale and Lord Wilson both opined it is simply not constitutionally be the place of the court to alter the law in the manner argued for by Mrs Owens. However any hope of Parliament intervening may also be misplaced as the Ministry of Justice made clear only a year ago that they had no plans to reform the law of divorce, and it is not included on the latest round of issues which the Law Commission are reviewing.
Contra to Judge Tolson’s criticism, Lord Wilson made it clear the “anodyne” terms of the petition were appropriate, in a divorce law which necessitates blame judicial approval of the use of gentle and non-contentious petitions wherever possible is to be welcomed. However, the case made clear that in contested divorce proceedings the ‘ordinary’ examples of behaviour which lay as the true cause of the desire for divorce may well be viewed insufficient. It can only be presumed that petitioners should lay greater emphasis on presenting the whole of their allegations rather than token examples. This may avoid offering a judge the opportunity to fail to appreciate their cumulative weight. Mr Owens complained at first instance that Mrs Owens was making mountains from molehills. This judgement suggests future petitioners would be wise to present an irrefutable mountain of evidence.