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 terms of the husband prioritising his work over home life, of his treatment of her lacking love or affection, of him often being moody and argumentative, and of him disparaging her in front of others. She stated that as a result she had felt unhappy, unappreciated, upset and embarrassed and that the couple had grown apart.

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.

At a case management hearing, pursuant to FPR 2010, r 7.22(2), a recorder granted the wife permission to amend the petition so as to expand her allegations of behaviour. The recorder also directed that the parties should file short witness statements, which were to stand as their evidence in chief, and provided that there be no other witness, apparently with the wife’s agreement. In November the wife amended her petition, providing 27 individual examples of her allegations that the husband had been moody and argumentative and had disparaged her in front of them, going back to 2013. 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 having argued for a half day and the husband for three days.

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 relating to the allegation of disparagement; the husband explained his very different perspective of each event.

The judge observed that both the wife’s draft petitions had lacked beef; he also observed that the wife’s first draft petition had been delivered to the husband at the time when the wife had begun the affair and that the strong implication was that there was no substance in that draft petition. 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]. Making a number of references to ‘unreasonable behaviour’, the judge described all 27 of the pleaded examples of behaviour as, at best, flimsy, that the wife had significantly exaggerated their context and seriousness, that the husband was ‘somewhat old-school’, that the wife was more sensitive than most wives, and that three of the examples particularly relied on (no reference was made to the fourth) were isolated incidents, not part of a persistent course of conduct on the husband’s part and scarcely merited criticism of the husband, with one cherry picked by the wife.

The Court of Appeal dismissed the wife’s appeal. The Supreme Court granted the wife permission to appeal again, on the basis that the wife’s arguments raised a novel issue about the interpretation of s 1(2)(b), in that she was arguing that the requirement was not that respondent’s behaviour had been such that she could not reasonably be expected to live with him but that the effect of his behaviour on her had been such that she could not reasonably be expected to live with him. Resolution was granted to intervene with written submissions and explained that its members were very concerned about a law which linked entitlement to divorce to the making of allegations by one spouse against the other.

In the course of the Supreme Court hearing, although Resolution maintained the argument that the focus ought to be not on the behaviour of the respondent, but on the petitioner’s response to that behaviour, the wife’s counsel conceded that this ground of appeal went too far.

The Supreme Court dismissed the wife’s appeal.

The judge’s remark that both the wife’s petitions “lacked beef” should have been a compliment, not a criticism. Family lawyers were well aware of the damage caused by the requirement under the current law that, at the very start of proceedings based on the subsection, one spouse must make allegations of behaviour against the other. Such allegations often inflamed their relationship, to the prejudice of any amicable resolution of the ensuing financial issues and to the disadvantage of any children. Thus for many years the advice of the Law Society, now contained in the second guideline of para 9.3.1 of the fourth edition (2015) of the Family Law Protocol, had been: “Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court …” The subsection nowadays set at a low level the bar for the grant of a decree. Defended suits were exceedingly rare. The degree of conflict between the parties evident in a fully defended suit would, of itself, suggest to the family court that in all likelihood their marriage had broken down. While it recognised that, unless and until repealed by Parliament, s 1 of the 1973 Act must conscientiously be applied, the family court took no satisfaction when obliged to rule that a marriage which had broken down must nevertheless continue in being. The expectations were that, even when defended to the bitter end, almost every petition under the subsection would succeed; that, in the interests again of minimising acrimony, the petitioner would be encouraged at the hearing to give no more than brief evidence in relation only to a few allegations of behaviour; and that then, after an equally short riposte on behalf of the respondent by cross­examination, oral evidence and submission, the court would deliver a brief judgment, almost certainly culminating in the pronouncement of a decree.

It was wrong to infer that a spouse who aspired to present a petition while conducting an affair had no case under the subsection.

As in effect the Court of Appeal in the present case had held, and as the wife now conceded, six old authorities (Pheasant v Pheasant [1972] Fam 202; Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47, Thurlow v Thurlow [1976] Fam 32, Stevens v Stevens [1979] 1 WLR 885, Balraj v Balraj (1981) 11 Fam Law 110, and Buffery v Buffery [1988] 2 FLR 365, continued to provide a correct interpretation of the subsection. The inquiry had three stages: first (a), by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; second (b), to assess the effect which the behaviour had upon this particular petitioner in the light of the latter’s personality and disposition and of all the circumstances in which it occurred; and third (c), to make an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable. The question posed by the subsection was more narrow than whether the petitioner could not reasonably be expected to live with the respondent; it was whether the respondent’s behaviour had been such that the petitioner could not reasonably be expected to do so. In determining whether a continuation of life with the respondent could not reasonably be expected of the petitioner, it was therefore impossible to avoid focus on the respondent’s behaviour, albeit assessed in the light of its effect on the petitioner. Resolution’s suggested interpretation of the subsection was incorrect. So also, for the reasons given by the President was its suggestion that either the subsection if taken alone or s 1 of the 1973 Act if taken as a whole might be incompatible with the rights of petitioners under article 8 of the European Convention on Human Rights.

The ease with which a petitioner could nowadays establish a case under the subsection, if undefended, had. led the President in his judgment to speak of its widespread dishonest and collusive manipulation. If the allegations of behaviour are not true, there was indeed dishonesty and, by not challenging them, a respondent might loosely be said to collude with it; and unfortunately such dishonesty was unlikely to be uncovered when, by reference only to the papers filed, the court decided pursuant to r 7.20(2)(a) of the FPR whether to certify that the petitioner was entitled to a decree. But the reference in Miller Smith v Miller Smith [2009] EWCA Civ 1297 to the greater availability of a decree under the subsection had been intended to recognise not its abuse in some cases but a legitimate enlargement of its application reflective of changing social norms in other cases. In making that reference, a regrettable phrase had been used: the “unreasonableness of the behaviour”. This shorthand description for the content of the subsection was wrong. The subsection required not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable. In the course of his short judgment in the present case the judge had referred five times to “unreasonable behaviour”. Had he been he looking for behaviour objectively worse than what the law required? What lay behind his search for “beef”? Had he been looking for behaviour for which he might “blame” the husband, contrary to the decision in Thurlow. Had he been looking for behaviour of “gravity”, contrary to the decision in Buffery? No doubt blameworthy or grave behaviour often made it more likely that the third-stage evaluation under the subsection would be that an expectation of continued life together would be unreasonable. But such was not a pre-requisite of a successful petition under the subsection.

The President had described the judge’s self-direction as “entirely adequate”, but had it gone far enough? Had he reminded himself of the need, noted in Stevens, to consider the behaviour of the husband as a whole? Or equally, of the need to consider the effect of all of it on the wife cumulatively, applying Jamieson v Jamieson [1952] AC 525? Equally, behaviour which the other spouse might consider trivial in the context of a happy marriage might bear more heavily upon a spouse trapped in an unhappy marriage. The President had noted that the judge had failed to make explicit reference to the cumulative effect of the husband’s behaviour on the wife, of which she had given copious evidence but after a full survey of the judgment had become satisfied that the judge had paid sufficient regard to the cumulative effect of that behaviour on the wife. But had the judge heard enough evidence to be able to appraise the cumulative effect on the wife of the conduct, taken as a whole, upon which she relied? How could he find the three examples of behaviour to which he made specific reference to be no more than isolated incidents, not part of a persistent course of conduct, in circumstances in which it had been agreed to be convenient to place so many other pleaded examples, albeit verified in writing by the wife, to one side?

It was clear from Stevens and Buffery that s 1 of the 1973 Act did not require the behaviour under the subsection to have caused the breakdown of the marriage. Nevertheless in his witness statement the husband had twice averred that if, which he did not accept, the marriage had broken down, the breakdown had not been the result of his behaviour. The court had asked counsel whether these no doubt innocent misrepresentations of the nature of the inquiry under the subsection had misled the judge into considering that the wife had needed to establish that the husband’s alleged behaviour had caused the marriage to break down. For, in adverting briefly to the allegation in the petition, never particularised, that the husband had prioritised his work over life at home, the judge had pointed out that the husband had in effect been retired for many years; continuing: “The idea that the lifestyle, whatever it may have been, now contributes to the breakdown of the marriage is fanciful. The ground is no more than a conventional form of words with no application to the present or the breakdown of the marriage at all.” However, this argument had not been raised in the course of the Court of Appeal hearing and had not squarely been relied on during this hearing. Further, the quoted passages represented too weak a foundation for a conclusion that this experienced family judge had fallen into elementary error. In such circumstances it was inappropriate for this court further to consider the point.

The court had an uneasy feeling that the procedure now conventionally adopted for the almost summary despatch of a defended suit for divorce was inapt for a case which was said to depend on a remorseless course of authoritarian conduct and which was acknowledged to appear unconvincing if analysed only in terms of a few individual incidents; an uneasy feeling about the judge’s finding that the three incidents which he had analysed were isolated, in circumstances in which he had not received oral evidence of many other pleaded incidents; and an uneasy feeling about his finding that the wife had significantly exaggerated her entire case, in circumstances in which the husband had not disputed much of what the wife had said. However, uneasy feelings were of no consequence. The advantages of the judge in reaching the relevant conclusions needed no rehearsal. Permission for the wife’s appeal to this court had been founded upon a novel interpretation of the subsection which at the hearing ­ and in the event correctly ­ she had abandoned. The court was not precluded from proceeding to address her remaining complaints, in particular in relation to the judge’s evaluation at the third stage of the inquiry; but in the above circumstances it was most unlikely to be appropriate for it to intervene.

The wife’s appeal must be dismissed. She must remain married to the husband for the time being. If she were to continue to live apart from the husband until 2020, he would surely have no defence to a petition then brought under s 1(2)(e) of the 1973 Act on the basis that they had lived apart for a continuous period of 5 years.

Parliament might wish to consider whether to replace a law which denied the wife any present entitlement to a divorce in the above circumstances.