- On 11 May this year, I blogged in advance of the Supreme Court Hearing in the case of Owens v Owens, which was heard on 17 May. The blog can be found here, and deals with issues raised by Mrs Owens’ circumstances, and how Mrs Owens might have fared differently in Scotland.
Today, the Supreme Court’s decision was published. They have refused to uphold Mrs Owens’ appeal, the effect of which is that she will be forced, for the time being, to remain married to her husband. As matters stand, Mrs Owens will require to wait until February 2020 to be able to divorce her husband on the grounds that they have been separated for five years or more – a situation which would not arise in Scotland.
It is apparent from the judgement that the Supreme Court were uncomfortable about certain aspects of the decision that they clearly felt they had no choice but to make given the strict remit of an appellate court.
It is suggested in the judgement that one of the reasons why Mrs Owens has found herself in the position that she is now in is that, despite citing 27 separate incidences of behaviour on the part of her husband which she argued had had a cumulative impact such that she could no longer reasonably be expected to cohabit with him, those were not all considered by the trial judge. It had been directed at an earlier hearing that only 4 of the 27 incidents referred to would be focused upon. Certainly, some of the judges who heard the Supreme Court appeal considered that that had impacted upon the trial judge concluding that Mr Owens had not behaved in such a way that his wife could no longer reasonably be expected to cohabit with him.
Lady Hale, whilst concurring with the decision that the appeal must be refused, iterated her own misgivings about the how the case was conducted at first instance. However, she concludes that “this Court is not a Court of error”. Lady Hale’s preference would have been to allow the appeal, and to send the matter back to the lower courts to be litigated again, in full. However, that was a possibility that had been rejected by Mrs Owens’ Legal Team as being untenable.
The Supreme Court has reiterated the test in England for establishing that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him/her. It is a three stage enquiry – firstly, by reference to the allegations of behaviour, to determine what the Respondent did or did not do; secondly, to assess the effect which the behaviour had upon the particular Petitioner in light of their personality and disposition in all of the circumstances; and thirdly to make an evaluation whether as a result of the Respondent’s behaviour and in light of its effect on the Petitioner, an expectation that the Petitioner should continue to live with the Respondent would be unreasonable.
Whilst this is clearly a summation of the test in England and Wales, the Court also cautions against practitioners and judges alike being too quick to abbreviate this to “unreasonable behaviour” – the Supreme Court recognises that the proliferation of the abbreviation may have led to a misunderstanding that it is not about whether the respondent has behaved unreasonably, but whether the behaviour means that the Petitioner cannot reasonably be expected to continue living with the Respondent. That warning is relevant in Scotland where the relevant wording of the legislation is that “…the Defender has behaved in such a way that the Pursuer cannot reasonably be expected to cohabit with the Defender”.
The Judge who provides the leading Judgment in Owens underlines the “uneasy feelings” which the case brings. Ultimately however he concludes that “uneasy feelings are of no consequence in this Court”.
It seems entirely at odds with any semblance of common sense that Mrs Owens will be forced to remain married to her husband for now, with the earliest date that she would be able to rely on the period they have been separated being February 2020.
Ultimately, the clear impression from the judgement is that the Supreme Court wanted to help Mrs Owens. As anticipated in my blog of 11 May however, they were ultimately prevented from doing so because of the very limited circumstances in which an appeal court can overturn the decisions of lower courts – this was not one of them. The judgement recognises that parliament may wish to consider a change in the law so that this sort of situation cannot happen again. Unfortunately, that is unlikely to be soon enough to help Mrs Owens.
The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.