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On appeal from: [2017] EWCA Civ 182

This appeal considered the interpretation of the Matrimonial Causes Act 1973, s 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 Justices agreed that when applying s 1(2)(b) the correct inquiry is: (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 invite 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.

For judgment, please download: [2018] UKSC 41
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (17 Mar 2018 morning session) (17 Mar 2018 afternoon session)