I almost didn’t write this post, as after I had the idea for it I came across a thread on Twitter where the very same thing was discussed, and by far more learned (not to mention distinguished) people than I. However, upon reflection I decided that perhaps after all I could in my own small way add something useful to the debate.
The idea for the post comes, of course, from the outcome of the Owens case, in which the Court of Appeal handed down its judgment last Friday, dismissing Mrs Owens’ appeal against the refusal of the court to grant her a divorce on the basis of her husband’s ‘unreasonable behaviour’. I put that term in inverted commas as, despite it being in common usage, it is not technically correct, as some pedants experts have pointed out recently. Whilst expressing dissatisfaction with that outcome, the three Court of Appeal judges held that the judge in the court below had applied the law correctly, when he found that the allegations about her husband that Mrs Owens put forward were insufficient to amount to ‘unreasonable behaviour’.
All of which leaves us, as has been pointed out a thousand times since Friday, in the appalling position whereby the law is keeping Mrs Owens trapped in a loveless marriage. But is there a way through? Could it not be argued that Mrs Owens’ predicament is actually the fault of Mr Owens, in that he decided to defend the divorce, thereby putting her in this unhappy position? Could not Mrs Owens file a supplemental petition to include the act of defending the divorce as a further allegation of his ‘unreasonable behaviour’? After all, ‘unreasonable behaviour’ requires that the behaviour is such that the petitioner cannot reasonably be expected to live with the respondent – and who could reasonably be expected to live with someone who is forcing them to remain in a loveless, unhappy marriage?
Now the first, and obvious, thing to say about this suggestion is that it is clearly not how parliament intended the law to work. However, the present law was made fifty years ago. Attitudes towards marriage and divorce were quite different then, and surely the approach of the courts today should reflect the fact that what may have been acceptable fifty years ago is not necessarily acceptable now? The outpouring of indignation at the result of the case, including in the more conservative sections of the media, is a clear indication that society, or at least a very large part of it, doesn’t find this outcome acceptable.
But we need to look a little deeper into how the law operates. As I have written here before, the test for ‘unreasonable behaviour’ was established by Mr Justice Dunn in the 1974 case Livingstone-Stallard v Livingstone-Stallard:
“Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and personalities of the parties?”
Now, I can’t see how a supplemental petition by Mrs Owens can fail to pass this test. Most ‘right-thinking’ people would surely conclude, in such circumstances, that Mrs Owens cannot reasonably be expected to live with Mr Owens, as I suggested above.
But then there is (at least) one other point, which was made on that Twitter thread. When he chose to defend the divorce, Mr Owens was only doing what he was fully entitled to do under the law: stating that the marriage had not, as a matter of law, irretrievably broken down. And that course of action was fully justified by the decision of the lower court, and now the Court of Appeal, both of which agreed that Mrs Owens had not, as a matter of law, proved that the marriage had irretrievably broken down. In such circumstances, how could it possibly be said that Mr Owens had, by defending the divorce, behaved unreasonably? Even if it could, such an argument would surely not be allowed to succeed, as a matter of public policy.
My view is that, tempting though it is, any attempt to use Mr Owens’ defence of the divorce as evidence of his unreasonable behaviour would be doomed to failure. Sadly, there may be no way out of this impasse, at least until Mr Owens has a change of heart, or the parties have been separated for five years. All of which just adds fuel to the growing fires demanding the introduction of a modern system of no-fault divorce.
Image by Angelina Earley via Flickr