Owens v Owens [2017] EWCA Civ 182

Appeal concerning the refusal to grant decree nisi despite correctly finding, as a matter of fact, that the marriage had broken down

Facts

• Marriage of 37 years; 2 adult children [3].
• W filed her petition seeking a divorce on the ground that the marriage had broken down irretrievably [4].
• Her statement of case included the following allegations [4]:
  1. H prioritised his work over home life;
  2. H did not provide W with love, attention or affection.
  3. H suffers mood swings which cause frequent arguments which distress and hurt W.
  4. H is unpleasant and disparaging about W in front of family and friends.
• H defended the petition, denying that the marriage had irretrievably broken down [5].
• W amended her petition giving further particulars in relation to (3) and (4) above [6].
• At first instance, W’s case was based on the cumulative effect of the allegations [8]. The agreed approach at trial was not to investigate each every allegation, but through examination and cross-examination, to give the overall flavour of the case [10].
• HHJ Tolson found that H had not behaved such that W could not be reasonably expected to live with him. He therefore dismissed W’s Petition [50].
• W appealed against the dismissal.

Held

• The Court of Appeal dismissed W’s appeal, with Munby P giving the lead judgment.
• His Lordship summarised the approach to petitions for divorce under s.1(2)(b) of the Matrimonial Causes Act 1973 at [37]:

“in a case such as this, the court has to evaluate what is proved to have happened

1. in the context of this marriage,
2. looking at this wife and this husband,

• in the light of all the circumstances and

1. having regard to the cumulative effect of all the respondent’s conduct.

The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”  

• His Lordship expressly endorsed the statement of the law as written in Rayden & Jackson on Relationship Breakdown (as authored by Samuel Littlejohns and Ben Wooldridge in Chambers).
• His lordship emphasized that the objective strand to the statutory test must be addressed by reference to the standards of the reasonable man or women in 2017 [41].
• Munby P rejected all of W’s primary grounds of appeal:

1. The process followed by HHJ Tolson was not flawed. The court must deal with cases in accordance with the overriding objective [61]. The judge was entirely justified, in the context of a 1-day hearing, not to hear evidence in respect of each allegation [62].
2. HHJ Tolson’s findings of fact were not insufficient. He decided whether H’s conduct as pleaded by W established her case under s.1(2)(b); the judge was not required to make findings in relation to each of the 27 allegations [66]. His Honour also considered the impact of H’s conduct on W, as found by him [67].
3. HHJ Tolson had regard to W’s subjective characteristics [69].
4. The judge had not made an explicit reference to the cumulative effect of H’s conduct on W. However, reading his judgement as a whole, and in particular noting the judge’s reference to “all the circumstances of the case” and “consistent and persistent course of conduct”, HHJ Tolson had assessed the cumulative effect [72].
5. Tolson J had made no error of law, principle or approach [74].

• Munby P also rejected W’s subsidiary argument under Art 8 and 12 of the ECHR: there is no Convention right to be divorced, nor, if domestic law permits divorce, is there any Convention right to a favourable outcome in such proceedings (Johnston v Ireland [1986] 9 EHRR 203; Babiarz v Poland (Application no. 1955/10) 10 January 2017) [77].
• Munby P considered the current state of the law [83] – [98]:

1. His Lordship acknowledged that behind the debate about no fault divorce lies the 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 is not in a position to question [90].
2. His Lordship went on to consider the “everyday realities” of the application of the current law:
   1. In practice, lawyers draft petitions not so anodyne as to be rejected by the court, but anodyne enough to avoid the respondent defending the petition [93].
   2. Thus, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of s.1(2)(b), parties are able to obtain, in effect, divorce by consent [94].
   3. Although there are no available statistics, one can safely assume that the number of petitions which proceed to final contested hearing is minute [98].
3. Munby P concluded [98]: “… is the public policy which underlies our current divorce law, still needed? Can it really be justified, where its application is confined to such a minutely small number of cases?”

• His Lordship expressly noted that no criticism was made of solicitors who draft petitions in a ‘very moderate’ way, and that it was very proper to advise them to do so [96].