The background is that the parties married in 1978 and separated in February 2015. Mrs Owens petitioned for divorce in May 2015 on the basis of her husband's behaviour, which she argued meant she could no longer reasonably be expected to live with him. As required under the current law, she listed some examples of his poor behaviour, including occasions, she claimed, when he had made insulting remarks to her in front of third parties. Most unusually, the husband decided to defend the case, denying the allegations made, and saying that he wanted to stay married and make things work. The Family Court that originally heard the case found that the things the husband had done were not objectively bad enough to constitute unreasonable behaviour sufficient for divorce. The Court of Appeal later refused an appeal against that decision. Hence Mrs Owens’ appeal to the Supreme Court.
Sadly for Mrs Owens, the Supreme Court has ‘reluctantly’ also refused the appeal (although it strongly hinted that Parliament should consider a change to the law). It therefore looks as though Mrs Owens will have to wait until 2020 when she will finally be able to divorce on the basis of five years’ separation.
Mrs Owens' lawyers had argued that she should not have to prove to an objective standard that her husband’s conduct had been unreasonable (i.e. that an independent observer would consider it to be unreasonable). Rather, it was argued, she should only have to prove subjectively (i.e. from her personal perspective) that she could not reasonably be expected to stay married. However, with today’s decision, the Supreme Court has effectively established that the test going forward (in those rare cases when divorces are defended) is essentially an objective one.
It should be said that Lady Hale (one of the presiding judges) did indicate that, had Mrs Owen’s been seeking a re-trial, she might have been minded to order one so as to allow Mrs Owens to argue that it was the cumulative effect of many minor incidents that constituted sufficiently unreasonable behaviour (this because at the original trial the court had focussed on a small number of the most serious (although evidently not serious enough) incidents). Mrs Owens, however, was not seeking a re-trial, so that Lady Hale felt she was left with no choice but to refuse the appeal.
The worrying practical consequence of this decision is that lawyers may now need to advise clients not to hold back when divorcing on the basis of unreasonable behaviour. Over recent years lawyers have understandably encouraged clients to say the bare minimum so as to avoid tension and argument, and so as to reduce the chances of defended proceedings. Going forward, however, individuals planning to petition for divorce will need to be mindful of the risk that if they are restrained in their allegations, and their spouse then defends the divorce, there may then be a difficulty in convincing the court that objectively the behaviour cited is sufficient to allow for a divorce. This could therefore be the start of a trend towards a more hostile and contentious process.
Accordingly, we very much support the Supreme Court’s suggestion that Parliament take a long-overdue look at this.
For further advice and information, or to speak to a member of our Family Law Team today, call 01926 491181 or email CarlineG@moore-tibbits.co.uk