Owens v Owens

Judgment

Sir James Munby, President of the Family Division :

This is an appeal from the refusal of His Honour Judge Tolson QC, sitting in the Central Family Court, to grant a wife a decree nisi of divorce, even though he had, correctly, found as a fact that the marriage has broken down. The judge found that the wife “cannot go on living with the husband” and continued: “He claims to believe that she can, indeed that she will, but in this in my judgment he is deluding himself.” Yet the judge dismissed her petition, on the basis that the wife had failed to prove, within the meaning of section 1(2)(b) of the Matrimonial Causes Act 1973 , that her husband “has behaved in such a way that [she] cannot reasonably be expected to live with [him].”

The question for us is whether, within the meaning of CPR 52.11 (3)(a), the wife can establish that in coming to this decision the judge was “wrong” – in which case we can interfere. If, for whatever reasons, we find ourselves unable to interfere, the question inevitably arises whether, in 2017, the law is in a remotely satisfactory condition?

The facts

The wife, Tini Owens, was born in 1950, the husband, Hugh John Owens, in 1938. They married in January 1978 and have two now adult children. They separated, as is common ground, in February 2015. The wife had originally instructed solicitors in June 2012, who under cover of a letter dated 21 December 2012 sent her husband a draft petition which in the event was not pursued. It is now accepted that at the time the wife was carrying on an on-and-off affair which had begun in November 2012 and ended in August 2013.

The wife filed her petition on 6 May 2015, seeking a divorce on the ground that the marriage had broken down irretrievably and alleging that the husband had behaved in such a way that she cannot reasonably be expected to live with him. The petition set out the statement of her case as follows:

“1 The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and family events. This has caused the Petitioner much unhappiness and made her feel unloved.

2 During the latter years of the marriage the Respondent has not provided the Petitioner with love, attention or affection and was not supporting of her role as a homemaker and mother which has made the Petitioner feel unappreciated.

3 The Respondent suffers from mood swings which caused frequent arguments between the parti