Birch v Birch: CA 22 Oct 1991

W appealed against dismissal of her petition for divorce to the effect that her husband had behaved in such a way that she could not reasonably have been expected to live with him. The judge had found H difficult but that his behaviour was not to the level suggested.
Held: The appeal succeeded. Applying Livingstone Stallard, ‘the judge in this case should have asked himself, ‘allowance will be made for the sensitive as well as for the thick-skinned; . . conduct must be judged [by the capacity of the complaining partner to endure his or her spouse’s conduct] . . the court would consider to what extent the [defending party] knew or ought reasonably to have known [the capacity of the other party to endure the conduct in question]’, and ‘the conduct that the learned judge found in the husband when viewed against the particular susceptibilities and characteristics of the wife in this case would have, had he considered the appropriate subjective test, driven him to the conclusion that there was only one answer – that this husband had behaved in such a way that the petitioner could not reasonably be expected to live with him. ‘

Neill LJ, Cazalet J
[1991] EWCA Civ 5, [1992] Fam Law 290, [1992] 2 FCR 545, [1992] 1 FLR 564
Matrimonial Causes Act 1973 291)(b)
England and Wales
CitedAsh v Ash FD 2-Feb-1972
The court considered the standard of behaviour which would support an allegation that a petitioner spouse should not reasonably be expected to live with the other spouse.
Held: Tthe court will have regard to the particular petitioner and the . .
AppliedLivingstone-Stallard v Livingstone-Stallard FD 1974
Section 1(2)(b) is expressed in very simple language, and ‘is . . quite easy for a layman to understand’. The court considered the necessary test for whether unreasonable behaviour had reached a point such as to allow a decree of divorce.
Dunn . .
CitedO’Neill v O’Neill CA 1975
The court considered the level of unreasonable behaviour necessary to found a decree of divorce.
Cairns LJ said: ‘The right test is, in my opinion, accurately stated in Rayden on Divorce . . ‘The words ‘reasonably be expected’ prima facie . .
CitedGollins v Gollins HL 27-Jun-1963
The parties disputed the duty of the wife to continue cohabitation with her husband after a finding that he was guilty of cruelty toward her. The House was also asked as to the nature of ‘unreasonable behaviour’.
Lord Reid said: ‘A judge does . .

Lists of cited by and citing cases may be incomplete.


Updated: 22 January 2022; Ref: scu.262634