This appeal considered the interpretation of the Matrimonial Causes Act 1973 section 1(2)( b). The Supreme Court unanimously dismissed the appeal, with the result that Mrs Owens must remain married to Mr Owens for the time being.
The majority invites parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances
The justices agreed that when applying section 1(2)( b), the correct inquiry is as follows: (i) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; (ii) to assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred; and (iii) to make an evaluation as to whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable.
The lower courts gave the correct self-direction by understanding they were applying an objective test, but with subjective elements. However, the justices expressed concerns about the summary despatch of a suit which was said to depend on an authoritarian course of conduct, when the judge had scrutinised only a few individual incidents of Mr Owens’ behaviour.
The majority invites parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances.
Lady Hale and Lord Wilson had some misgivings about the judge’s judgment. This relates to the fact that this case depended upon the cumulative effect of a great many small incidents, yet the hearing before the judge was not set up or conducted in a way which would enable the full flavour of such conduct to be properly evaluated. As a result, Lady Hale considered that the proper disposal was to allow the appeal, and send the case back to the first-instance court to be tried again. However, this was not a disposal which Mrs Owens sought, and Lady Hale was therefore reluctantly persuaded that the appeal should be dismissed.
Lord Mance did not share the concerns expressed by Lord Wilson and Lady Hale about the judge’s judgment. Although the hearing of the defended divorce petition was listed for a relatively short period, this was how the judge was invited to decide the matter. It would be inappropriate for the Supreme Court to interfere at this stage.
Resolution has called on the government to urgently reform divorce law in England and Wales, in the light of the Supreme Court judgment (see also pages 40 and 41 of this issue).
Nigel Shepherd, Resolution’s past chair and a long-time campaigner for no-fault divorce, echoed this call: 'As an organisation who intervened in the case in support of Mrs Owens, we are disappointed at [the] judgment and what it means for her.
'Whilst the Supreme Court has, reluctantly, applied the law correctly, the fact that they have done so confirms there is now a divorce crisis in England and Wales, and the government needs to take urgent action to address it.'