Owens v Owens
| Jurisdiction | England & Wales |
| Judge | Lady Black,Lord Wilson,Lord Hodge,Lord Mance,Lady Hale |
| Judgment Date | 25 July 2018 |
| Neutral Citation | [2018] UKSC 41 |
| Court | Supreme Court |
| Date | 25 July 2018 |
[2018] UKSC 41
Lady Hale, President
Lord Mance
Lord Wilson
Lord Hodge
Lady Black
Appellant
Philip J Marshall QC
Stephen Jarmain
Millicent Benson
(Instructed by Payne Hicks Beach)
Respondent
Nigel Dyer QC
Hamish Dunlop
(Instructed by Hughes Paddison)
Intervener (Resolution) (by written submissions only)
James Turner QC
Deepak Nagpal
(Instructed by Mills & Reeve LLP)
Heard on 17 May 2018
(with whom Lord Hodge and Lady Black agree)
Mrs Owens appeals against an order of the Court of Appeal dated 24 March 2017 (Sir James Munby, the President of the Family Division, and Hallett and Macur LJJ), [2017] EWCA Civ 182, [2017] 4 WLR 74, by which it dismissed her appeal against the dismissal of her petition for divorce by Judge Tolson QC (“the judge”) on 25 January 2016 in the Central Family Court in London.
The petition of Mrs Owens was based upon section 1(2)(b) (“the subsection”) of the Matrimonial Causes Act 1973 (“the 1973 Act”), which extends only to England and Wales: she alleged that her marriage to Mr Owens had broken down irretrievably and that he “has behaved in such a way that [she] cannot reasonably be expected to live with [him]”.
It was in the belief that the appeal of Mrs Owens would raise a novel issue about the interpretation of the subsection that this court gave permission for it to be brought. Her principal ground of appeal had been that the subsection should now be interpreted as requiring not that the behaviour of Mr Owens had been such that she could not reasonably be expected to live with him but that the effect of it on her had been of that character. But, important though the effect on the petitioner of the respondent's behaviour is under the subsection, Mr Marshall QC on her behalf conceded at the hearing that the principal ground went too far. So issues about the interpretation of the subsection, at any rate as between Mr and Mrs Owens, have narrowed substantially. But our judgments may nevertheless remain of some value to those who in the future wish to invoke, or need to apply, the subsection. Resolution, the name by which the Solicitors Family Law Association is now known, intervenes in the appeal. It commends, by contrast, a re-interpretation of the subsection along the lines of that principal ground of appeal. The court is grateful for its presentation but in the circumstances will refer only briefly to it.
Mrs Owens is aged 68. Mr Owens is aged 80. They were married in 1978 and have two children, now adult. During the marriage, with the support of Mrs Owens, Mr Owens built a successful business and they each now have significant wealth. The matrimonial home, in which Mr Owens continues to live, is a substantial manor house in a village in Gloucestershire. Mrs Owens now lives next door, in a property which they also own.
It was in June 2012 that Mrs Owens first consulted her solicitors about a divorce. In about November 2012 she began an affair. It ended in August 2013, which was when (as Mrs Owens later discovered) Mr Owens learnt of it. Mrs Owens told the judge that the affair “was the result of a bad marriage, not the cause for divorce”. The judge did not say whether he accepted what she said: he could not do so because, as I will explain, he did not receive evidence about the quality of the marriage prior to 2013.
In February 2015 Mrs Owens left the matrimonial home and, following five months in rented accommodation, began to occupy the property next door to the home. They have not lived together since her departure. The judge found as facts that the marriage had broken down; that Mrs Owens could not continue to live with Mr Owens; and that, in so far as he believed otherwise, Mr Owens was deluding himself.
Back in December 2012 Mrs Owens had handed to Mr Owens a letter written by her solicitors, with which was enclosed a draft petition for divorce based upon the subsection; and in the letter the solicitors had enquired of Mr Owens whether, if a petition were to be issued in the terms of the draft, he would defend it. As he accepts, Mr Owens then told Mrs Owens that, if she filed the petition, he would never speak to her again. The judge remarked that, like the petition which she filed much later, this initial draft “lacked beef”. That should have been a compliment, not a criticism. Family lawyers are 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 inflame 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, has 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 …”
In his judgment the judge observed that the draft petition was delivered to Mr Owens at the time when Mrs Owens had begun the affair. “The strong implication”, he said, “is that there was no substance in the draft petition”. Indeed at the hearing he had suggested that the existence of the affair “knocks out” the allegations made in it and provides an “ulterior motive” for the proposed petition. With respect, I suggest that it is wrong to infer that a spouse who aspires to present a petition while conducting an affair has no case under the subsection.
In the event the draft petition was never issued. Mr and Mrs Owens continued to live in the matrimonial home, and to a substantial extent to live together, for a further two years. But Mrs Owens continued to keep a diary of incidents between herself and Mr Owens of which she might later wish to complain.
In May 2015 Mrs Owens issued the petition which is the subject of the proceedings. Like the earlier draft, it was based on the subsection and was cast in appropriately anodyne terms. The statement of case comprised five paragraphs. In them Mrs Owens alleged only that Mr Owens had prioritised his work over their life at home; that his treatment of her had lacked love or affection; that he had often been moody and argumentative; that he had disparaged her in front of others; and that as a result she had felt unhappy, unappreciated, upset and embarrassed and had over many years grown apart from him.
For some reason Mr Owens declined to instruct the solicitors who had been corresponding on his behalf with Mrs Owens' solicitors to accept service of the petition; so it was served upon him personally. He indicated an intention to defend the suit. By his answer, he denied that the marriage had broken down irretrievably and alleged, in the event incorrectly, that in bringing the suit Mrs Owens was motivated by a wish to continue the affair and that the other man was exercising a malign influence over her. At that stage Mr Owens largely denied the allegations about his behaviour and said that, although never emotionally intense, the marriage had been successful and that he and Mrs Owens had learnt how to “rub along”.
In October 2015 a recorder conducted a case management hearing pursuant to rule 7.22(2) of the Family Procedure Rules 2010 (“the FPR”). In the light of Mr Owens' defence of the suit, Mrs Owens was granted 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.
The recorder made two further significant directions. The first was that there should be no witness other than the parties themselves. It appears that, by counsel, Mrs Owens agreed to that direction. The second related to the requirement under the rule for the recorder to give directions for the conduct of the final hearing of the suit. The court is told that, by their respective counsel, the wife suggested that a hearing of one half day would suffice whereas the husband suggested that three days were required. In the event the recorder's direction was for a hearing of one day.
Why did the experienced legal advisers to Mrs Owens consider that the court would need only one half day in which to determine the issues raised by her petition and that she would not need to call any witness to corroborate, for example, her allegation of disparaging comments on the part of Mr Owens in front of others?
The answer to this question is not in dispute. It lies in an understanding of the practical operation of the family court nowadays when determining a defended suit for divorce. Defended suits are exceedingly rare. In his judgment the President noted that, in relation to the 114,000 petitions for divorce which were filed in England and Wales in 2016, fewer than 800 answers were filed; and he estimated that the number of suits which proceeded to a final, contested hearing was 0.015% of the petitions filed, which amounts to about 17 in that whole year. The degree of conflict between the parties which is evident in a fully defended suit will of itself suggest to the family court that in all likelihood their marriage has broken down. While it recognises that, unless and until repealed by Parliament, section 1 of the 1973 Act must conscientiously be applied, the family court takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being.
In No Contest: Defended Divorce in England and Wales, published in 2018 by the Nuffield Foundation, Professor Trinder...
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