Owens & how to plead a divorce case

Date: 
09 August 2018

Mrs Owens & the Supreme Court: was all the relevant evidence heard before the court below? David Burrows investigates

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  • Was Tini Owens given a proper trial of all of the allegations which she could have put before the first instance judge?

Mrs Tini Owens (TO) is to remain nominally married to Mr Hugh Owens (HO) ( Owens v Owens [2018] UKSC 41), at least till one of them can obtain a decree nisi based on their having lived apart for five years (Matrimonial Causes Act 1973 (MCA 1973) s 1(2)(e)) in early 2020. The Supreme Court has refused her appeal, for much the same reason as did the Court of Appeal ( Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74). However, in the course of the judgments of Lord Wilson and Lady Hale, disturbing elements of the way the case had been put before the court below emerged. These suggest that TO may not have been given a proper trial of all of the allegations which she could have put before the first instance judge.

This is worrying. The case has generated a wide press. It is used as support for the undoubted need for reform of English divorce laws. Resolution, the association of family practitioners, joined in the Supreme Court appeal (though its submissions were only referred to briefly). It applies only to the tiny minority—perhaps 0.015%—of defended behaviour petitions. But if, with more attention to detail of evidence, any available corroboration and a proper time estimate (as will be explained), the case had been given its full attention by the court, perhaps Mrs Owens would have had her decree nisi from His Honour Judge Tolson QC.

In what follows it will be important to address the law as it is. In the Court of Appeal Sir James Munby P emphasised this point after he had summarised the statute and case law (adopted also by the Supreme Court). He continued: ‘[38] This is the law. This is the law which it was the duty of Judge Tolson to apply. It is the law which it is equally our duty to apply. It is well known that many hold the view that this is not what the law should be, that times have moved on since 1969, and that the law is badly out-of-date, indeed antediluvian. That may be, and those who hold such views may be right, but our judicial duty is clear. As Sir Gorell Barnes P said in Dodd v Dodd [1906] P 189, 206, our task is jus dicere non jus dare – to state the law, not to make the law.’

That said, as was argued in ‘ Owens : a dead marriage but no divorce’ (167 NLJ 7740) that the courts were entitled to look at irretrievable breakdown of marriage deductively; that if a marriage was found to be dead then it could be concluded that had irretrievably broken down; and that the intention of Parliament (on grounds akin to Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 2 WLR 924) was that a dead marriage should not be preserved. In ‘Unreasonable behaviour on trial’, NLJ 15 June 2018 p11, Simon Blain used the Supreme Court case to outline the MCA 1973 divorce (though did not mention the s 2 provisions to enable parties to attempt reconciliation, nor the s 3 restriction on divorce within a year of marriage) and to ask whether behaviour is to be regarded as subjective to the spouse said to suffer from it; or by some objective test. (In Owens Lord Wilson confirmed that it is a subjective test ([23], [28] and [39]).)

A marriage which is over; but no divorce

The parties were married in 1978 and separated in February 2015. TO filed a petition for divorce in May 2015 contending that the marriage had irretrievably broken down. The petition was based on allegations as to HO’s behaviour, which the wife argued meant she could not reasonably be expected to live with him within the meaning of s 1(2)(b). In her petition and amended petition, she gave particulars of incidents, which included occasions where the husband was alleged to have made disparaging or hurtful remarks to her in front of third parties. The husband defended the case and argued at the trial that the examples given of his behaviour were not such as to satisfy the requirements of s 1(2)(b). The judge agreed and dismissed the petition. The Court of Appeal agreed with the judge and dismissed Mrs Owens’s appeal.

But did she plead her case; & was all her relevant evidence heard?

A troubling feature of this case is the way it seems to have been run before the first instance judge. This being a defended divorce there was a Family Procedure Rules 2010 (FPR 2010) r 7.22(2) case management hearing. Counsel for TO said a half day—yes really, for a defended divorce with weak grounds—was sufficient for the final hearing. HO said three days. One day was fixed. Both parties agreed to limit their evidence to themselves. No corroborative evidence was called. TO amended her original five-paragraph particular petition to 27 instances of behaviour; but those were restricted only to allegations which occurred since 2013. The judge restricted the evidence to hearing only four particulars, where her counsel had deliberately restricted reliance on only a few allegations.

The result was, as Lord Wilson explained: ‘[19] … was that no evidence was put before the judge in relation to most of the 27 examples, apart from the written confirmation of their veracity on the part of Mrs Owens and from the mixture of responses to them which Mr Owens had given in his amended answer and confirmed to be true in his witness statement. It also follows that, although at one point Mrs Owens told [HO’s counsel] that Mr Owens had been making hurtful and disparaging remarks to her long before 2012, in effect no evidence was given in relation to the marriage prior to its two final years.’

‘Uneasy feelings’

Lord Wilson felt that the case ‘[42]…. generates uneasy feelings: an uneasy feeling that the procedure now conventionally adopted for the almost summary despatch of a defended suit for divorce was inapt for a case which was said to depend on a remorseless course of authoritarian conduct and which was acknowledged to appear unconvincing if analysed only in terms of a few individual incidents; an uneasy feeling about the judge’s finding that the three incidents which he analysed were isolated in circumstances in which he had not received oral evidence of so many other pleaded incidents; and an uneasy feeling about his finding that Mrs Owens had significantly exaggerated her entire case in circumstances in which Mr Owens had not disputed much of what she said.’

“ Pending any change in the law, which must come from Parliament, what is the court to do?”

For Lady Hale, the approach to evidence was ‘the most troubling’ aspect of ‘a very troubling case’ ([46] and [50]). She explained this, on analogy with constructive dismissal and by reference to the context of a relationship: ‘[50]… This was a case which depended upon the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time. Those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which should exist in any marriage.’

She would have allowed the appeal and sent the case back to be tried again (Lord Wilson and the two justices who agreed with him do not comment on this point); but the Supreme Court was told—by the same lawyers who were at fault in conducting the abbreviated hearing?—that counsel viewed ‘with dread’ further litigation in the event that TO could, in any event, proceed under s 1(2)(e) in early 2020. Lady Hale was therefore ‘reluctantly persuaded that the appeal should be dismissed’. You wonder, though—despite counsel’s ‘dread’—what the difference might be in terms of TO’s costs if her petition were fully pleaded before another judge; and if in those circumstances she had been granted a decree (ie had succeeded on her petition)?

Lord Mance was also troubled by the short listing arrangements; but felt that it was not possible to ‘interfere’: ‘[58] ... I do not think that we can now interfere to say that it was not possible in the circumstances to have a fair determination…’ by Judge Tolson QC.

Practice & law reform

As Lord Wilson stresses, s 1(2)(b) ‘sets at a low level the bar for grant of a decree’ (at 17]). A relatively anodyne behaviour petition can be followed—as was the case with TO—with an application to amend (FPR 2010 r 7.13); though this should be fully pleaded and accompanied by a statement (which will be treated as evidence in chief: FPR 2010 r 22.6(2)) and by statements of any corroborative witnesses.

The present substantive law may be unsatisfactory. That is another issue. But if a case is properly pleaded, given what the party—a divorce petitioner seeking a decree nisi in this type of case—seeks to achieve, then it is difficult to imagine another where a spouse who shows that their marriage has broken down, cannot also show that their spouse has behaved in such a way that they cannot reasonably be expected to live with him or her.

Pending any change in the law, which must come from Parliament, what is the court to do? Its inquiry under MCA 1973 s 1, said Lord Wilson, at [28], proceeds in three stages:

  1. By reference to the allegations in the petition, the court must ‘determine what the respondent did or did not do’;
  2. The court assesses ‘the effect which the behaviour had upon this particular petitioner in the light of the latter’s personality and disposition and of all the circumstances in which it occurred’—ie the subjective test; and
  3. In the light of these two assessments, is there ‘an expectation that the petitioner should continue to live with the respondent would be unreasonable’?

And finally, said Lord Wilson a little inscrutably: ‘[45] Parliament may wish to consider whether to replace a law which denies to Mrs Owens any present entitlement to a divorce in the above circumstances.’

There are many who might have hoped he would speak in stronger terms; though given the weakness of the way Mrs Owens’s case had been pleaded and presented, perhaps the judge’s comment could be no stronger.

David Burrows, NLJ columnist & solicitor advocate ( @dbfamilylaw ).

© Steve Parsons/Dominic Lipinski/PA Images

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