Owens v Owens: CA 24 Mar 2017

Unreasonable Behaviour must reach criteria

W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: W’s appeal failed. ‘What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?’ and ‘when section 1(2)(b) of the 1973 Act, reproducing section 2(1)(b) of the Divorce Reform Act 1969, uses the words ‘cannot reasonably be expected’, that objective test has to be addressed by reference to the standards of the reasonable man or woman on the Clapham omnibus: not the man on the horse-drawn omnibus in Victorian times which Lord Bowen would have had in mind . . not the man or woman on the Routemaster clutching their paper bus ticket on the day in October 1969 when the 1969 Act received the Royal Assent, but the man or woman on the Boris Bus with their Oyster Card in 2017.’

Sir James Munby P FD, Hallett, Macur LJJ
[2017] EWCA Civ 182, [2017] 2 FCR 569, [2017] WLR(D) 217, [2018] 1 FLR 1002, [2017] 4 WLR 74
Bailii, WLRD
Matrimonial Causes Act 1973 1(2)(b), Family Procedure Rules 2010 1.1
England and Wales
CitedWelfare v Welfare FD 12-Oct-1977
Bush J heard a defended divorce petion sand said: ‘Conduct of a respondent could not be looked at in isolation but had to be viewed in the light of all the surrounding circumstances, including the degree of provocation.’ He continued to adopt the . .
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 . .
CitedLivingstone-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 12-Mar-1975
W appealed from rejection of her petition for divorce. The Judge held that the behaviour proved was no more than a wife could reasonably be expected to put up with, and he dismissed the petition. . .
CitedStevens v Stevens FD 1979
Sheldon J considered whether the divorce petitioner had established that she should not be expected to continue to live with her husband. An earlier behaviour petition by her had been rejected as making insufficient allegations against H.
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 . .
ApprovedBalraj v Balraj CA 1980
The husband’s petition was based on section 1(2)(e) of the 1973 Act, namely that he and the wife had lived apart for at least five years. The Court of Appeal upheld the judge’s rejection of the wife’s opposition to the grant of a decree, which was . .
CitedBuffery v Buffery CA 30-Nov-1987
The court considered a petition for divorce beased upon unreasonable behaviour. The Wife petitioner appealed from the decision dismissing her petition for the dissolution of her marriage to the respondent.
Held: After discussing O’Neill: ‘one . .
CitedButterworth v Butterworth CA 7-Feb-1997
Brooke LJ, with whom Balcombe LJJ agreed, treated the test for whether behaviour was so unreasonable as to support a petition for divorce as being that laid down by Dunn J in Livingstone-Stallard. . .
CitedDodd v Dodd 1906
Sir Gorell Barnes P set out the task of a judge saying that it is our task is jus dicere non jus dare – to state the law, not to make the law, but decried the state of family law: ‘That the present state of the English law of divorce and separation . .
CitedJ v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
CitedRegina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
CitedBirmingham City Council v Oakley HL 29-Nov-2000
When considering if premises fell within the section, and were ‘in such a state as to be prejudicial to health’, the court must consider some feature of the premises which was in itself prejudicial. An arrangement of rooms which was unsatisfactory . .
CitedIn re G (Children) (Education: Religious Upbringing) CA 4-Oct-2012
The parents, both once ultra orthodox Jews disputed the education of their children after their separation, and after the mother, though still Orthodox, ceased to be a member of the Chareidi community. . .
CitedHealthcare at Home Ltd v The Common Services Agency SC 30-Jul-2014
The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an . .
CitedSP (Father) v EB (Mother) and Another FD 26-Nov-2014
Judgment on the applicant father’s application for an order that his daughter Kate, who is now aged 14, be returned forthwith to Malta pursuant to Article 12 of the Hague Convention on the International Aspects of Child Abduction 1980, as . .
CitedPiglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
CitedBabiarz v Poland ECHR 10-Jan-2017
The Court referred to Johnston v Ireland and said: ‘In the area of framing their divorce laws and implementing them in concrete cases, the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure . .
CitedBuffery v Buffery CA 30-Nov-1987
The court considered a petition for divorce beased upon unreasonable behaviour. The Wife petitioner appealed from the decision dismissing her petition for the dissolution of her marriage to the respondent.
Held: After discussing O’Neill: ‘one . .

Cited by:
At CAOwens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .
CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .

Lists of cited by and citing cases may be incomplete.


Updated: 11 November 2021; Ref: scu.581075