Owens 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 interpreted by reference not to his behaviour, but rather to the effect upon her.
Held: The appeal was dismissed. The point upon which the appeal had been permitted was novel, and now withdrawn by the petitioner.
Lord Wilson said: ”Unreasonable behaviour’ has always been the family lawyer’s shorthand description for the content of the subsection. But it is wrong. The subsection requires not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable. ‘
Section 1 of the 1973 Act does not require the behaviour under the subsection to have caused the breakdown of the marriage.
Lady Hale, President, Lord Mance, Lord Wilson, Lord Hodge, Lady Black
[2018] UKSC 41, [2018] 3 WLR 634, [2018] 4 All ER 721, [2018] 2 FCR 796, [2018] WLR(D) 485, [2018] 2 FLR 1067, [2018] AC 899, UKSC 2017/0077, SC 2018 May 17 pm Video
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 May 17 am Video
Matrimonial Causes Act 1973 1(2)(b)
England and Wales
At CAOwens 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: . .
CitedPheasant v Pheasant FD 1972
H petitioned for divorce pursuant to section 2(1)(b) of the Divorce Reform Act 1969, which came into force on 1 January 1971. The husband’s case was that the wife had been unable to give him the demonstrative affection which he needed.
Held: . .
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 . .
CitedThurlow v Thurlow FD 1976
A husband’s petition under the subsection was based on the wife’s failure to contribute to the running of the home and on her increasingly erratic behaviour, both of which were the result of a severe neurological condition. Rees J noted that, before . .
CitedBalraj 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 . .
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.
UnsustainableAsh 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 . .
CitedRegina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
UnsustainablePriday v Priday FD 1970
Cumming-Bruce J dismissed a husband’s petition for divorce on the ground of the wife’s cruelty under section 1(1)(a)(iii) of the Matrimonial Causes Act 1965. But, in recounting the history of the marriage, the judge also commented at p 557 on the . .
CitedMiller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
CitedJamieson v Jamieson HL 1952
The house discussed the test for relevancy of a pursuer’s averments.
Held: A case should only be dismissed on grounds of relevancy and specification if it would necessarily fail at proof.
The House reversed the decision of the Court of . .
CitedMiller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
CitedKatz v Katz 1972
Misuse of the phrase ‘unreasonable behaviour’ . .
CitedBannister v Bannister CA 1980
The Court allowed a wife’s appeal against the dismissal of her petition for divorce, Ormrod LJ observed: ‘The learned judge, I am afraid, fell into the linguistic trap which is waiting for all of us when we speak of ‘unreasonable behaviour’ in . .
CitedUkegheson v Haringey London Borough Council EAT 21-May-2015
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
UNFAIR DISMISSAL – Constructive dismissal
The Claimant resigned. In a . .

Cited by:
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 . .
CitedYorston and Others, Re (Matrimonial Causes Act 1973: Improper Petitions) FC 10-Sep-2021
Petitions with Identical Particulars Dismissed
28 divorce petitions had particulars including the exact same form of words for the allegations. The court could not accept that the behaviour had been identical and concluded that the petitions were improper.
Held: The petitions were . .

Lists of cited by and citing cases may be incomplete.
Updated: 13 October 2021; Ref: scu.620138