The Supreme Court has handed down the long-awaited judgment on Owens v Owens  UKSC 41. Andrew Morris and Shakira Maynard-Johnson consider the implications that this has in the world of divorce.
Mr and Mrs Owens were married in 1978. In May 2015 Mrs Owens issued a divorce petition based upon s1(2)(b) of the Matrimonial Causes Act 1973 as she believed that her marriage had irretrievably broken down as Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him.
The majority of divorce petitions in the UK usually go undefended, however, Mr Owens decided that he wanted to defend the petition as it was his position that the marriage had not broken down. In October 2015 the matter was listed for a case management hearing. In light of Mr Owens’ intention to defend, Mrs Owens was given permission to amend her divorce petition, she, therefore, amended her petition to include 27 examples of Mr Owens’ behaviour that she wished to rely upon to prove the irretrievable break down of the marriage.
Despite the number of examples Mrs Owens had provided within the petition, the trial was listed to last for only a period of one day. Counsel for Mrs Owen’s decided that they would only focus on four out of the 27 examples given which means that no evidence was placed before the Court in relation to the other examples listed in the petition.
Despite finding that the marriage had irretrievably broken down, the judge found that Mrs Owens had failed to satisfy the test under s1 (2) (b) of the 1973 Act. Therefore Mrs Owens petition for divorce was dismissed. She appealed to the Court of Appeal but her petition was dismissed again. She then appealed to the Supreme Court.
What is the test under s1 (2)(b)
The test under s1 (2)(b) is that “the court… shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court… that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. Lord Wilson giving the leading judgment in the Supreme said that the correct application of the test was threefold and the Court should:
1. determine what Mr Owens did or did not do, by reference to Mrs Owens’ petition;
2. to assess the effect which the behaviour had upon Mrs Owens in light of the circumstances in which it occurred (subjective test);
3. in light of Mr Owens’ behaviour and the effect on Mrs Owens, make an evaluation as to whether it would be unreasonable to expect Mrs Owens to continue to live with Mr Owens (objective test).
Why did Mrs Owens fail?
The judges ruled that the particulars of Mrs Owens’ petition “lacked beef” and were “at best flimsy”. There was not enough detail in her petition to render her husband’s behaviour so intolerable that it would be unreasonable to expect her to continue to live with him. Therefore, when applying the law to the facts, the judges unanimously yet reluctantly had to find in Mr Owens’ favour.
Furthermore, as the strategy approached at trial was to focus on only four out of the 27 allegations the Court could not consider the cumulative effect that the behaviour complained of had upon Mrs Owens.
What does this mean for Mrs Owens?
The Supreme Court ruling against Mrs Owens means that she will need to stay married to Mr Owens until the year 2020 before she can successfully petition for divorce based on five years of separation.
As most divorces are usually undefended, most petitions are usually drafted giving only the essential particulars of the behaviour complained of and this is usually enough to warrant a decree nisi being granted. However, when a respondent indicates an intention to defend a divorce petition then by virtue of s1 (3) of the Act the Courts are under an obligation to enquire into the facts alleged. If the Court is not satisfied that there is enough information or evidence to overcome the test then they can refuse to give permission for a couple to divorce as was the case with Mrs Owens.
This case should, therefore, come as a reminder to Practitioners and indeed Litigants in Person that petition’s based on s1 (2) (b) should be watertight with emphasis based on the effect that the behaviour has on the petitioner to show cause as to why it would be unreasonable to expect the petitioner to carry on living with the respondent.
Despite the flimsiness of Mrs Owens’ petition, the case also raises the question as to whether the Courts would have found in her favour if they were given the opportunity to consider all 27 allegations of behaviour as opposed to only focusing on four of the 27 behaviours complained of.
The impact of this judgment means that until Parliament changes the law, if there is a risk that a divorce petition will be defended, a petitioner needs to make sure that the petition is robust enough to withstand the statutory test, even if this causes some distress.
For further information contact please contact Andrew Morris on 01242 246 456 or at email@example.com.