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‘Desperately unhappy’ Mrs Owens refused divorce

Munby P laments ‘hypocrisy and lack of intellectual honesty’ of current law

24 March 2017

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Mrs Owens has been refused a divorce from her husband and will ‘remain trapped in their loveless marriage’, the Court of Appeal has ruled.

Giving judgment, the court said the judge at first instance had correctly decided that Mr Owens had not behaved in a way that his wife cannot reasonably be expected to live with him as required within the meaning of the Matrimonial Causes Act 1973.

The three justices, including the president of the family division, Sir James Munby, observed that parliament had not found that being in a ‘wretchedly unhappy marriage’ was a lawful ground for divorce for which it was the court’s duty to apply.

In last year’s Central Family Court ruling, Mr Owens had successfully argued that, despite his alleged unreasonable behaviour and his wife’s affair with another man, the 39-year marriage had not legally broken down irretrievably.

Judge Robin Toulson QC had described Mrs Owens’ allegations against her husband as ‘minor altercations of a kind to be expected in a marriage’.

These altercations included an incident at an airport over buying a suitable present for the parties’ housekeeper and further incidents at a restaurant and a pub.

Before the appeal court last month, Mrs Owens’ barrister, Philip Marshall QC, argued that it was ‘extremely unusual’ for a court to dismiss a divorce petition and urged the judges to consider the ‘cumulative effect’ of Mr Owens’ behaviour.

However, Munby P, Lady Justice Hallett, and Lady Justice Macur, agreed that despite the evidence before them, Mr Owens had not behaved in a way that Mrs Owens cannot reasonably expect to live with him under section 1(2)(b) of the 1973 Act. Accordingly, Judge Toulson had made no error of law in his reasoning.

‘This is the law which it was the duty of Judge Tolson to apply,’ said Munby P. ‘It is the law which it is equally our duty to apply. It is well known that many hold the view that this is not what the law should be, that times have moved on since 1969, and that the law is badly out-of-date, indeed antediluvian.

‘That may be, and those who hold such views may be right, but our judicial duty is clear. As Sir Gorell Barnes P said in Dodd v Dodd [1906] P 189, 206, our task is jus dicere non jus dare – to state the law, not to make the law.’

Munby P also used the judgment to revisit the history of divorce law and the debate over no-fault divorce. In doing so, he questioned whether parties should be able to dissolve a marriage without state intervention.

‘The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 [Divorce Reform] Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b).’

He added that a characteristic of the current procedures, which judges must apply and follow, were ‘based on hypocrisy and lack of intellectual honesty’.

Lady Justice Hallett added: ‘With no enthusiasm whatsoever, I have reached the same conclusion on this appeal as my lord, the president, for the reasons that he gives.

‘We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them. It is for parliament to decide whether to amend section 1 and to introduce “no fault” divorce on demand; it is not for the judges to usurp their function.’

Commenting on the case, Nigel Shepherd, the chair of Resolution, said: ‘This judgment will obviously come as a disappointment to Mrs Owens, and absolutely underlines the urgent need for no-fault divorce.

‘Successive governments have dragged their heels on this issue for too long. Owens v Owens must be the spark that ignites a fundamental change in our divorce law’.

Professor Liz Trinder, a divorce law expert from the University of Exeter law school, said the decision is likely to have a deeply negative impact on people going through a divorce and on the family courts.

‘Couples will have to cite much more hostile examples of behaviour, whether or not that is based on reality. That will be a deeply regrettable step.

‘Now it is likely we will see a new, higher threshold for the sort of behaviour divorcing couples will need to cite. Couples will be advised to give full, no-holds barred accounts of every last incident of violence, drinking, or financial irresponsibility. In cases where there are no “serious” allegations to draw upon, as in Owens, the likelihood is that more petitioners will be drawn into perjuring themselves.

‘In future we can expect that significant numbers of behaviour petitions will be rejected. In 2014 there were 52,538 divorces granted on behaviour in England and Wales. Even a small increase in the number of rejected petitions will have major resource implications for the family courts that are already under huge pressure.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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Family Divorce

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