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Supreme Court test case: decision means divorce remains more straightforward in Chile, China and Russia than England and Wales

Posted: 25/07/2018

Commenting on today’s Supreme Court judgment in Owens v Owens, Simon Blain, family partner at Penningtons Manches and executive committee member for Resolution, the national association for family lawyers, said: “Today's judgment will frustrate not only Mrs Owens but many who have long campaigned for divorce reform in England and Wales. Reform, however, will remain firmly on the agenda. The Supreme Court can interpret the law, but only Parliament can change it. The case for reform is compelling and urgent.

“Resolution, and many others, feel that it is anachronistic, if not farcical, that a determined and wealthy husband can prevent his wife from bringing their marriage to an end for five years, despite the judge’s clear finding that the marriage had broken down, and that he was deluding himself if he thought otherwise. The phrase 'unreasonable behaviour' – which in fact does not appear in statute – should be consigned to the dustbin of history.” 

The Supreme Court's decision today also means that getting divorced in England and Wales will remain, in principle, more complex than in dozens of other jurisdictions, including Chile, China and Russia where ‘no fault’ divorce exists (for more detail see Penningtons Manches’ recent international barometer report).

Simon continued: “So what can divorce lawyers and future divorcing couples take from today’s judgment? The Supreme Court expressly endorsed the practice of drafting behaviour petitions so as to provide the minimum detail necessary to convince the court that the marriage has broken down irretrievably. There is no need to 'beef up' behaviour petitions as a result of Owens: if the case is defended, further evidence can be filed.

“In the very rare cases where a petition is defended, the judge and the advocates should give serious thought to the evidence that will be required, and to the time estimate for the hearing. Some of the rigour, in terms of evidence and pleadings, that is common in civil proceedings needs to be imported to the Family Division, when matters of fact are in issue.”

Key background and points to note from today's judgment

The majority judgment was delivered by Lord Wilson, supported by Lord Hodge and Lady Black. Minority judgments were delivered by Lady Hale and Lord Mance, although all five judges agreed that the appeal should be dismissed.

The case revolved around the correct interpretation of section 1 (2) (b) of the Matrimonial Causes Act 1973, which states that a marriage can be dissolved on the basis of one spouse’s behaviour.

Mrs Owens had been refused a divorce at first instance, because the judge found that the examples of her husband’s behaviour which she provided were 'flimsy' and could not have caused the judge to conclude that her marriage had broken down irretrievably.

The case gained widespread publicity, because many hoped that the Supreme Court might use the opportunity to find that the existing law had been interpreted too narrowly by the lower courts, or to call for law reform. Resolution, the membership organisation representing 6,500 family justice professionals, intervened in the proceedings to press the case for reform.

In the end, the justices agreed that Mrs Owens’ appeal should be dismissed. The majority, and Lady Hale, expressed significant disquiet:

The majority, at paragraph 42, stated: “There is no denying that the appeal of Mrs Owens generates uneasy feelings: 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 analysed were isolated in circumstances in which he had not received oral evidence of so many other pleaded incidents; and an uneasy feeling about his finding that Mrs Owens had significantly exaggerated her entire case in circumstances in which Mr Owens had not disputed much of what she said.”

For her part, Lady Hale stated, at paragraph 46: “I have found this a very troubling case. It is not for us to change the law laid down by Parliament – our role is only to interpret and apply the law that Parliament has given us."

Concern focused in particular on the case-management decisions made before and at the beginning of the first instance hearing. The effect of those decisions was that the case was allocated only one day of court time, no evidence was filed by witnesses, who could testify to the effect of Mr Owens’ alleged behaviour, and Mrs Owens was cross-examined on only four of the 27 allegations she made.

Lady Hale, in particular, felt that those case-management decisions, in which both parties and the judge had been involved, amounted to "mistakes". In particular, she felt that “this was a case which depended upon the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time” (paragraph 50), and that the hearing “was not set up or conducted in a way which would enable the full flavour of such conduct to be properly evaluated".

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