UNREASONABLE BEHAVIOUR IS A LINGUISTIC TRAP by Joshua Rozenberg

. Tini Owens and her husband Hugh were married in 1978. They separated in February 2015 and she launched divorce proceedings against him in May 2015. Her petition was dismissed by Judge Tolson QC in January 2016. An appeal against the judge’s decision was dismissed by the Court of Appeal in March 2017. She is now appealing to the Supreme Court.

Ahead of the hearing, written arguments were submitted on behalf of the appellant (Tini Owens) and the respondent (Hugh Owens). Lady Hale, Lord Mance, Lord Wilson, Lord Hodge and Lady Black will be addressed on 17 May by Philip Marshall QC for the appellant and Nigel Dyer QC for the respondent. In addition, the court has agreed to consider written submissions made by the family lawyers’ group Resolution. These were drafted by James Turner QC.

What follows is my summary of the three written submissions, known as “cases”.

TINI’S CASE

Since 1971, the sole ground for divorce has been that a marriage has broken down irretrievably. Judge Tolson found as a fact that the Owens marriage had irretrievably broken down and that Hugh Owens was deluding himself in hoping that he and his wife would be reconciled.

But the law also says that a court must not hold a marriage to have broken down irretrievably unless the petitioner – Tini Owens, in this case – satisfies the court of at least one of the five “facts” specified by parliament. The fact on which Tini Owens relies is that the respondent (in this case, Hugh Owens) “has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.

This is referred to by some reporters, lawyers, judges and even a government legal advice website as “unreasonable behaviour”. But that convenient shorthand phrase conceals a notorious linguistic trap. It’s not the respondent’s behaviour that has to be unreasonable. The question for the courts is whether it’s reasonable to expect the petitioner to live with someone who has behaved in that way.

The point is worth stressing: there is no reference to “unreasonable behaviour” in the divorce legislation. The words “unreasonable” and “behaviour” do not appear at all.

I said earlier that there were five “facts”. Another can be summarised as two years’ separation with the consent of the respondent. But since Hugh Owens has not given his consent, Tini Owens is left with the fifth “fact”: she must wait for her divorce until February 2020, when she will have been separated for five years and her husband’s consent will not be needed.

Unless, of course, her counsel can persuade the Supreme Court that she comes within the “behaviour” fact. And that is just what he seeks to do.

Philip Marshall says the court must focus on the effect of the respondent’s behaviour on the petitioner. It must consider whether the actual impact of that behaviour is something the petitioner can reasonably be expected to live with. It’s not for the court to decide whether the respondent’s behaviour is in any way culpable, unreasonable or blameworthy.

Analysing the effect of the Divorce Reform Act 1969 (later consolidated into the Matrimonial Causes Act 1973), Philip Marshall argues that parliament must have intended to enable courts to end marriages that had irretrievably broken down. Consideration of the five facts was only a means to that end. And the finding of fault was no longer to form any part of the law.

Behaviour, he says, is much wider than the concepts of conduct or cruelty that it replaced. Its cumulative effect must be considered. No moral judgment is required.

Turning to the concept of living together, Marshall says this means more than living under the same roof. It involves a marital partnership – what the lawyers refer to as consortium.

In analysing “reasonably”, he argues that the court must focus on the effect the respondent’s behaviour has on the petitioner. Though the test is an objective one, he says significant weight must be given to the subjective viewpoint of the petitioner.

“So, if a petitioner honestly or genuinely feels that he or she cannot live with a respondent as a result of the respondent’s behaviour, however mild that behaviour might objectively appear, it is (very) likely to follow that it is not reasonable to expect the petitioner to live with the respondent.”

And that has to be judged by current standards of personal autonomy: marriage is now viewed as a partnership of equals.

HUGH’S CASE

Nigel Dyer, representing Hugh Owens, rejects Marshall’s interpretation of the phrase “cannot reasonably be expected”. That’s not how the courts have understood it for nearly 50 years, he says, and the Supreme Court should not reinterpret it now.

Dyer claims that Marshall is importing a subjective element into the objective test set by parliament. The effect of Marshall’s argument, taken to its logical conclusion, would be divorce on demand. A petitioner could simply declare that she cannot be expected to live with the respondent and that would be enough to prove that the marriage had broken down irretrievably.

Far from interpreting the law, this would amount to changing it – a “momentous step” that only parliament should take. Dyer says the trial judge and the Court of Appeal correctly applied the statutory test.

Judge Tolson found that Tini Owens had “exaggerated the context and seriousness of the allegations” against her husband to a significant extent. “They are all at most minor altercations of a kind to be expected in a marriage,” the judge added. “Some are not even that.”

Dyer says it’s not for the Supreme Court to re-assess the trial judge’s findings of fact. That’s not what appeal courts do.

RESOLUTION’S CASE

The Supreme Court has refused to consider interventions from campaigners who were arguing about what the law ought to be. Lady Hale, who’ll be presiding over the court, knows those arguments already and has made it very clear that she supports reform. But what she has allowed the court to consider are representations from the lawyers’ group Resolution on what the law actually is.

James Turner’s arguments support and reinforce those put by Philip Marshall on behalf of Tini Owens. He argues that the lower courts have misunderstood the statutory test in the past. The Supreme Court is not required to follow those rulings and can interpret the statute in accordance with current thinking.

In so doing, Turner insists, the court would not be making new law or usurping the role of parliament. It would simply be giving guidance as to the correct construction of the law.

Turner also argues that Judge Tolson fell into the linguistic trap, approaching the case on the basis that there was some minimum level of bad behaviour that had to be established and that Hugh Owens had not behaved badly enough to reach that level.

The five facts are there to help the courts establish whether a marriage has actually broken down, Turner claims, not to ascertain fault and attribute blame. As the judge had found the marriage had broken down, why was there any need to establish a minimum level of bad behaviour?

Resolution also argues that the case raises human rights issues under article 8 of the European convention, which requires respect for family life. That’s hard to square with a law that apparently requires a woman in her late 60s to wait five years before she can remarry.

WHAT’S NEXT?

After a day of argument, the Supreme Court is expected to reserve judgment to a later date.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s