This is a case report of Owens v Owens  EWCA Civ 182, in which the Court of Appeal refused a wife’s appeal against the rejection of her divorce petition, although it accepted that the marriage was over.
Court of Appeal, 24 March 2017, Sir James Munby P, Hallett and Macur LJJ
The husband and wife married in 1978 and separated in 2015; they had two adult children. The wife had sent the husband a draft divorce petition in December 2012, but this had not been pursued. The wife was having an affair at this stage. Although the affair ended in August 2013, the wife filed another petition in May 2015. The petition stated that the marriage had broken down irretrievably, alleging that the husband had behaved in such a way that she could not reasonably be expected to live with him. The petition stated her case in the following terms:
“1 The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and family events. This has caused the Petitioner much unhappiness and made her feel unloved.
2 During the latter years of the marriage the Respondent has not provided the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother which has made the Petitioner feel unappreciated.
3 The Respondent suffers from mood swings which caused frequent arguments between the parties which were very distressing and hurtful for the Petitioner who has concluded that she can no longer continue to live with the Respondent.
4 The Respondent has been unpleasant and disparaging about the Petitioner both to her and to their family and friends. He speaks to her and about her in an unfortunate and critical and undermining manner. The Petitioner has felt upset and/or embarrassed by the Respondent’s behaviour towards her as well as in front of family and friends.
5 As a result of the Respondent’s behaviour towards her, the Petitioner and the Respondent have until recently lived separate lives under the same roof for many years and have not shared a bedroom for several years. On 10 February 2015 the Petitioner moved into rented accommodation and the parties have been living separate and apart since that date.”
The husband’s acknowledgement of service, filed in July, stated that he intended to defend the case and his answer, filed in August, indicated that he wished to defend the petition and denied that the marriage had irretrievably broken down.
In accordance with directions given in October, in November the wife amended her petition to provide further particulars of paras 3 and 4 of her statement of case. In response, also in November, the husband filed an amended answer responding to each of these allegations. The case was listed for a hearing at the Central Family Court as a defended suit with a time estimate of 1 day.
The wife’s case was that while, taken in isolation, some of the allegations she had made were not especially serious, taken cumulatively, they had led the wife to feel that she could no longer continue living with the husband, having made her unhappy and embarrassed. The judge who heard the case (HHJ Tolson QC), after consulting with counsel, proposed that the approach to be taken was not investigate each and every allegation, but through examination and cross-examination of the history of the marriage and selected allegations to give the overall flavor or complexion of the case and of how personal perspective might have altered reality in terms of the pleaded matters. The wife’s counsel chose to focus on incidents in public or involving a third party, identifying four such incidents, all relation to paragraph 4 of her petition; the husband explained his very different perspective of each event.
The judge found as a fact that the marriage had broken down, but refused to grant the wife a decree of nisi on the basis that while the wife could not go on living with the husband, she had failed to prove, within the meaning of s 1(2)(b) of the Matrimonial Causes Act 1973, that the husband ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]. The judge expressed his conclusion in these words: ”In reality I find that the allegations of alleged unreasonable behaviour in this petition – all of them – are at best flimsy. I would not have found unreasonable behaviour on the wife’s pleaded case. As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that.”
The wife appealed.
The Court of Appeal dismissed the wife’s appeal.
The authorities showed that, in a case such as this, the court had to evaluate what was 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 had to ask itself the statutory question: given all this, had the respondent behaved in such a way that the petitioner could not reasonably be expected to live with the respondent? If the marriage was unhappy, a particular piece of ‘conduct’ might have more impact and be less ‘reasonable’ than exactly the same conduct if the marriage was happy; what might be regarded as trivial disagreements in a happy marriage could be salt in the wound in an unhappy marriage.
This was the law that the judge, and the Court of Appeal had to apply. It was well known that many held the view that this was not what the law should be, that times had moved on since 1969, and that the law was badly out-of- date, indeed antediluvian. That might be, and those who held such views may be right, but the judicial duty was clear. In one respect, however, the law permitted, indeed required the court, to look at matters from the perspective of 2017. Section 1 of the 1973 Act was an “always speaking” statute: see R v Ireland, R v Burstow  AC 147, 158. Although it was not permitted to construe a statute as meaning something “conceptually different” from what Parliament must have intended, applying Birmingham City Council v Oakley  1 AC 617, 631, where, as here, the statute was “always speaking” it was to be construed taking into account changes in our understanding of the natural world, technological changes, changes in social standards and, of particular importance here, changes in social attitudes. The concept of cruelty was the same today as it was when the Bill of Rights 1688 forbade the infliction of “cruel and unusual punishments”, but changes in social standards meant that punishments which would not have been regarded as cruel in 1688 would be so regarded today.
When s 1(2)(b) of the 1973 Act, reproducing s 2(1)(b) of the Divorce Reform Act 1969, used the words “cannot reasonably be expected”, that objective test had to be addressed by reference to the standards of the reasonable man or woman on the Clapham omnibus: not the man on the horse-drawn omnibus in Victorian times, not the man or woman on the Routemaster clutching their paper bus ticket on the day in October 1969 when the 1969 Act received the Royal Assent, but the man or woman on the Boris Bus with their Oyster Card in 2017.
It might be of little consolation to the wife but she was not totally without remedy under the present law. If she waited until February 2020, assuming that she and her husband were still alive, she would, seemingly, be able to petition in accordance with s 1(2)(e) of the Act. Of course, the husband might seek to dispute that there had been five years’ continuous separation or to defend the petition in accordance with s 5(2) on the footing that the dissolution of the marriage would result in “grave hardship”. Both seemed unlikely. It was also possible that her husband might eventually consent to a divorce on the grounds of two years’ separation in accordance with s 1(2)(d). But, unless she could bring herself within the “no fault” provisions of subsections 1(2)(d) and (e) she must remain trapped in her loveless marriage. Parliament had decreed that it was not a ground for divorce that a person found themselves in a wretchedly unhappy marriage, though some people might say it should be.
As Professor Stephen Cretney had pointed out, behind this debate about ‘no fault’ divorce there lurked, at a conceptual level, a profoundly important point of principle and public policy: ought the decision whether or not a marriage should be dissolved to be one for the parties which the state was not in a position to question? – something which, as he observed, would mark an extremely radical departure from the arrangements for divorce entrenched over the years since 1857.
But what are the everyday realities behind the professorial ponderings or the moralisers’ anathemas?
Consider the course of a ‘conduct’ petition relying upon s 1(2)(b) of the Act. In the vast majority of such cases the petition proceeded without interrogation. The respondent was not even put to the trouble, nor his conscience stretched, by having to engage either with the facts alleged by the petitioner or even with the allegation that the marriage had irretrievably broken down, let alone with the contention that his behaviour had been unreasonable. All he had to do was put the word “No” in the relevant box in answer to the question in paragraph 4 of the acknowledgment of service: “Do you intend to defend the case?” Consistently with the form of the acknowledgment of service, the respondent did not even have to verify it by a statement of truth.
The obligation imposed on the court by s 1(3) of the 1973 Act to “inquire … into the facts” was qualified by the crucial words “so far as it reasonably can”, so, unless there was something to alert the judge to the fact that ‘something is going on’, the task for the District Judge or Legal Adviser considering an undefended case in accordance with FPR 7.20 came down to this question: assuming the facts alleged were true, did what was pleaded amount to unreasonable behaviour within the meaning of s 1(2)(b)? The challenge for the divorce lawyer was therefore to draft an anodyne petition, carefully navigating the narrow waters between Scylla and Charybdis to minimise the risks that if the petition was too anodyne it might be rejected by the court whereas if it was not anodyne enough the respondent might refuse to cooperate. Since the former risk was probably very low in practice (and if it materialised the remedy was simply an amendment sufficiently ‘beefing up’ the petition as to satisfy the court: see X v X (Y and Z intervening)  1 FLR 508, paras 17-18), many petitions were anodyne in the extreme. The petition in the present case was a good example; in the court’s view, if the husband had not sought to defend, the petition would have gone through under the special procedure without any thought of challenge from the court.
The simple fact, to speak plainly, was that in this respect the law which the judges had to apply and the procedures which they had to follow were based on hypocrisy and lack of intellectual honesty. The simple fact was that for many years there had been divorce by consent, not merely in accordance with s 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of s 1(2)(b). It was ironic that collusion, which, until the doctrine was abolished by s 9 of the 1969 Act, was a bar to a decree, was now the very foundation of countless petitions and decrees. The hypocrisy and lack of intellectual honesty which was so characteristic a feature of the current law and procedure differed only in magnitude from the hypocrisy and lack of intellectual honesty which characterised the ‘hotel divorce’ under the old law. Too often the modern ‘behaviour’ petition was little more than a charade. The ‘hotel divorce’ centred on a charade played out in front of the chambermaid or private inquiry agent who then gave evidence of events which would enable a judge, who either was or affected to be credulous, to find that adultery had been committed, even though the services provided by the unnamed woman found in the respondent’s bed when breakfast was taken in usually did not include the sexual intercourse essential to the act of adultery. That particular charade ‘worked’ because of the legal principle that adultery could be inferred if there was inclination and opportunity; the modern charade ‘worked’ because of the operation of the rule of pleading (not in the real world much affected by either s 1(3) or FPR 7.20(2)(a)), that if a claim was conceded it went through in effect by default.
These observations implied not the slightest criticism of the lawyers engaged in this sensitive and difficult work. On the contrary, solicitors were, very properly, advised by their professional bodies to be very moderate in what they included in a ‘behaviour’ petition.
In the year to January 2017, there were 113,996 petitions for divorce. Over the same period, notice of intention to defend was given in some 2,600 acknowledgements of service (some 2.28% of all petitions) while actual answers filed were about 760 (some 0.67% of all petitions). There were no available statistics, but the number of petitions which proceeded to a final contested hearing was minute, probably little more than a handful. So, the attritional effect of the process itself reduced from an initial 2.28% of respondents who were minded to oppose the petition to an utterly trivial, of the order of magnitude of 0.015%, of respondents who actually carried their opposition through to a contested hearing. Was the great principle identified by Cretney, was the public policy which underlay our current divorce law, still needed? Could it really be justified, where its application was confined to such a minutely small number of cases?
The court could not ignore the clear words of the statute on the basis that it disliked the consequence of applying them. It was for Parliament to decide whether to amend s 1 and to introduce “no fault” divorce on demand; it was not for the judges to usurp their function. Furthermore, this court could not overturn a decision of a trial judge who had applied the law correctly, made clear findings of fact that were open to him and provided adequate reasons, simply on the basis that it disliked the consequence of his decision.
The court could not find a legitimate basis for challenging the judge’s conclusions. He had applied the law correctly and on the evidence before him, had been entitled to reach the conclusions that he had and had provided good reasons for them. The criticisms made of the judge in this court and elsewhere were unwarranted. Judge Tolson was well aware that he had to evaluate the impact on the wife of what had happened; second, that, as he evaluated these events, he found their impact to be modest at best. While nowhere in his judgment did he make any explicit reference to the cumulative effect on the wife of the husband’s conduct, the judgment had to be read as a whole, and some of his comments showed that he had indeed been looking to all the circumstances and to their cumulative effect. There was no Convention right to be divorced nor, if domestic law permitted divorce, was there any Convention right to a favourable outcome in such proceedings, applying Johnston v Ireland (1986) 9 EHRR 203 and Babiarz v Poland (Application no. 1955/10).
The court urged the husband to reconsider his position. On any view, the marriage was over. The court could only hope that he would relent and consent to a divorce on the grounds the parties had lived apart for a continuous period of two years, rather than force his wife to wait until five years had elapsed.