Tini Owens v Hugh John Owens

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir James Munby,Lady Justice Hallett,Lady Justice Macur
Judgment Date24 March 2017
Neutral Citation[2017] EWCA Civ 182
Docket NumberCase No: B6/2016/0878

[2017] EWCA Civ 182

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL FAMILY COURT

His Honour Judge TOLSON QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir James Munby PRESIDENT OF THE FAMILY DIVISION

Lady Justice Hallett

and

Lady Justice Macur

Case No: B6/2016/0878

Between:
Tini Owens
Appellant
and
Hugh John Owens
Respondent

Mr Philip Marshall QC (instructed by Payne Hicks Beach) for the appellant

Mr Nigel Dyer QC and Mr Hamish Dunlop (instructed by Hughes Paddison) for the respondent

Hearing date: 14 February 2017

Sir James Munby, President of the Family Division:

1

This is an appeal from the refusal of His Honour Judge Tolson QC, sitting in the Central Family Court, to grant a wife a decree nisi of divorce, even though he had, correctly, found as a fact that the marriage has broken down. The judge found that the wife "cannot go on living with the husband" and continued: "He claims to believe that she can, indeed that she will, but in this in my judgment he is deluding himself." Yet the judge dismissed her petition, on the basis that the wife had failed to prove, within the meaning of section 1(2)(b) of the Matrimonial Causes Act 1973, that her husband "has behaved in such a way that [she] cannot reasonably be expected to live with [him]."

2

The question for us is whether, within the meaning of CPR 52.11(3)(a), the wife can establish that in coming to this decision the judge was "wrong" – in which case we can interfere. If, for whatever reasons, we find ourselves unable to interfere, the question inevitably arises whether, in 2017, the law is in a remotely satisfactory condition?

The facts

3

The wife, Tini Owens, was born in 1950, the husband, Hugh John Owens, in 1938. They married in January 1978 and have two now adult children. They separated, as is common ground, in February 2015. The wife had originally instructed solicitors in June 2012, who under cover of a letter dated 21 December 2012 sent her husband a draft petition which in the event was not pursued. It is now accepted that at the time the wife was carrying on an on-and-off affair which had begun in November 2012 and ended in August 2013.

4

The wife filed her petition on 6 May 2015, seeking a divorce on the ground that the marriage had broken down irretrievably and alleging that the husband had behaved in such a way that she cannot reasonably be expected to live with him. The petition set out the statement of her case as follows:

"1 The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and family events. This has caused the Petitioner much unhappiness and made her feel unloved.

2 During the latter years of the marriage the Respondent has not provided the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother which has made the Petitioner feel unappreciated.

3 The Respondent suffers from mood swings which caused frequent arguments between the parties which were very distressing and hurtful for the Petitioner who has concluded that she can no longer continue to live with the Respondent.

4 The Respondent has been unpleasant and disparaging about the Petitioner both to her and to their family and friends. He speaks to her and about her in an unfortunate and critical and undermining manner. The Petitioner has felt upset and/or embarrassed by the Respondent's behaviour towards her as well as in front of family and friends.

5 As a result of the Respondent's behaviour towards her, the Petitioner and the Respondent have until recently lived separate lives under the same roof for many years and have not shared a bedroom for several years. On 10 February 2015 the Petitioner moved into rented accommodation and the parties have been living separate and apart since that date."

5

On 16 July 2015 the husband filed his acknowledgment of service, answering "Yes" to the question "Do you intend to defend the case?". On 10 August 2015 he filed his answer, indicating his wish to defend and denying that the marriage had irretrievably broken down.

6

In accordance with directions given on 28 October 2015 by Recorder Campbell, the wife amended her petition on 11 November 2015 to provide further particulars of paragraphs 3 and 4 of her statement of case. Particulars were given under paragraph 3 of 9 matters, covering the period from 25 February 2014 to 18 January 2015, and, under paragraph 4, of 18 matters covering the period from 15 January 2013 to 13 November 2014. The husband filed an amended answer responding to each of these allegations on 20 November 2015. The directions given by the Recorder included the listing of the case at the Central Family Court as a defended suit with a time estimate of 1 day.

The hearing

7

The suit came on for hearing on 15 January 2016 before His Honour Judge Tolson QC. The wife was represented by Mr Philip Marshall QC, the husband by Mr Hamish Dunlop.

8

Given the matters raised on appeal by way of criticism of Judge Tolson's approach to the case, I should note the way in which Mr Marshall opened his case:

"We have indicated, and my client in her statement accepts, that taken in isolation, of course, some of the allegations made would not of and in themselves seem particularly serious. The husband categorises them as very much the stuff of everyday married life, and I suspect there is some force in that. What we say is that taken cumulatively, as your Honour should view them, the effect upon my client has been to wear her down. She variously says in her statement that she has been unhappy, she has been embarrassed, and she has felt that she could no longer continue living with the respondent."

A little later he added:

"I can say straight away I do not propose, unless your Honour wishes me to do so, to go through each and every one of the 27 allegations.

JUDGE TOLSON: I was going to ask if there is any measure of agreement as to the approach we should adopt to that? … I am asking about the forensic approach to 27 separate allegations, some older than others.

MR. MARSHALL: I simply propose to focus upon one or two of them, or three or four of them. My client in her statement has confirmed the veracity of her petition and I will ask her to confirm that, and that will stand as her case to the extent it is supplemented in her witness statement which your Honour will, of course, have in due course."

9

About a third of the way through Mr Dunlop's cross-examination of the wife, there was this interchange:

"JUDGE TOLSON: Well, gentlemen, shall we get on, we have an awful lot of allegations to cover at some point in the next hour and a quarter.

MR. DUNLOP: Quite so. Your Honour, as to that, may I deal with two matters. The first is you asked my learned friend during the course of his opening how should your Honour approach the question of the particulars? In my submission there is going to be a need for you to look at certainly the majority of the particulars and their findings. Unless your Honour directs me to I do not intend to cross-examine on all of them, but I recognise I need to give your Honour a flavour of my approach.

JUDGE TOLSON: Well, Mr. Dunlop, in your shoes I would have selected a few and cross-examined on them.

MR. DUNLOP: Yes, that is what I intend to do.

JUDGE TOLSON: It is a question for you how you spend the available time."

10

In the reserved judgment which he handed down on 25 January 2016, Judge Tolson said this:

"The agreed approach at the trial was not to investigate each and every allegation, but through examination and cross-examination of the history of the marriage and selected allegations to give the overall flavour or complexion of the case and of how personal perspective might have altered reality in terms of the pleaded matters. I shall adopt the same approach in this judgment."

Given what the transcript records, that was an unexceptionable approach.

11

In the course of his closing submissions, Mr Marshall explained that he was focusing on incidents in public or involving a third party. Judge Tolson asked him to identify his top two or three ranking allegations. Mr Marshall in fact identified four, all relating to paragraph 4.

12

The first matter, on 13 November 2014 (which I shall refer to as the airport incident), was pleaded as follows:

"The Respondent told the Petitioner that he had seen a suitable present for their housekeeper, in the departure lounge of Cancun airport. The Petitioner went over to see what the Respondent was referring to but could not find it and, so instead decided to purchase a silver tortoise necklace which the Petitioner knew she would like. When the Respondent found out that the Petitioner had ignored his suggestion, he lost his temper. He raised his voice so that those around them could hear him berating the Petitioner and he snapped "why did you not listen to me?" and demanded "why did you not buy what I told you to?" This caused the Petitioner extreme embarrassment as he was visibly chastising her in front of numerous strangers. The Respondent then stormed off. Later, when they were in the queue to board the plane the Respondent continued to audibly criticise the Petitioner and would not let the matter drop, causing her much further unhappiness and embarrassment. The Petitioner asked the Respondent to lower his voice but he nevertheless continued to berate her at the same level. Once they entered the plane, the Petitioner was forced to ignore the Respondent in order that the argument did not continue."

13

The answer to this was as follows:

"The Respondent did see a suitable present for the parties' housekeeper. He mentioned this to the Petitioner. She returned with another item which the Respondent found perplexing. He asked why the Petitioner had not purchased what he had suggested but...

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9 cases
  • Owens v Owens
    • United Kingdom
    • Supreme Court
    • 25 July 2018
    ...[2018] UKSC 41 Supreme Court Trinity Term On appeal from: [2017] EWCA Civ 182 Lady Hale, President Lord Mance Lord Wilson Lord Hodge Lady Black Owens (Appellant) and Owens (Respondent) Appellant Philip J Marshall QC Stephen Jarmain Millicent Benson (Instructed by Payne Hicks Beach) Responde......
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1 books & journal articles
  • 2018 Winterton Lecture: Constitutional interpretation
    • Australia
    • University of Western Australia Law Review Nbr. 45-1, June 2019
    • 1 June 2019
    ...of those words without considering my original purpose when I used them? 125 [2011] 1 WLR 433 at 443 [27] (emphasis added). 126 [2017] EWCA Civ 182 at [39]. 127 R Ekins, “Updating the meaning of violence”, (2013) 129 Law Quarterly Review 17 at 19. 28 University of Western Australia Law Revi......

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