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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Owens v Owens  EWCA Civ 182 (24 March 2017)
Cite as:  4 WLR 74,  WLR(D) 217,  1 FLR 1002,  2 FCR 569,  EWCA Civ 182
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ON APPEAL FROM THE CENTRAL FAMILY COURT
His Honour Judge TOLSON QC
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LADY JUSTICE MACUR
| TINI OWENS
|HUGH JOHN OWENS
Mr Nigel Dyer QC and Mr Hamish Dunlop (instructed by Hughes Paddison) for the respondent
Hearing date : 14 February 2017
Crown Copyright ©
Sir James Munby, President of the Family Division :
"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 parties which were very distressing and hurtful for the Petitioner who has concluded that she can no longer continue to live with the Respondent.
4 The Respondent has been unpleasant and disparaging about the Petitioner both to her and to their family and friends. He speaks to her and about her in an unfortunate and critical and undermining manner. The Petitioner has felt upset and/or embarrassed by the Respondent's behaviour towards her as well as in front of family and friends.
5 As a result of the Respondent's behaviour towards her, the Petitioner and the Respondent have until recently lived separate lives under the same roof for many years and have not shared a bedroom for several years. On 10 February 2015 the Petitioner moved into rented accommodation and the parties have been living separate and apart since that date."
"We have indicated, and my client in her statement accepts, that taken in isolation, of course, some of the allegations made would not of and in themselves seem particularly serious. The husband categorises them as very much the stuff of everyday married life, and I suspect there is some force in that. What we say is that taken cumulatively, as your Honour should view them, the effect upon my client has been to wear her down. She variously says in her statement that she has been unhappy, she has been embarrassed, and she has felt that she could no longer continue living with the respondent."
A little later he added:
"I can say straight away I do not propose, unless your Honour wishes me to do so, to go through each and every one of the 27 allegations.
JUDGE TOLSON: I was going to ask if there is any measure of agreement as to the approach we should adopt to that? I am asking about the forensic approach to 27 separate allegations, some older than others.
MR. MARSHALL: I simply propose to focus upon one or two of them, or three or four of them. My client in her statement has confirmed the veracity of her petition and I will ask her to confirm that, and that will stand as her case to the extent it is supplemented in her witness statement which your Honour will, of course, have in due course."
"JUDGE TOLSON: Well, gentlemen, shall we get on, we have an awful lot of allegations to cover at some point in the next hour and a quarter.
MR. DUNLOP: Quite so. Your Honour, as to that, may I deal with two matters. The first is you asked my learned friend during the course of his opening how should your Honour approach the question of the particulars? In my submission there is going to be a need for you to look at certainly the majority of the particulars and their findings. Unless your Honour directs me to I do not intend to cross-examine on all of them, but I recognise I need to give your Honour a flavour of my approach.
JUDGE TOLSON: Well, Mr. Dunlop, in your shoes I would have selected a few and cross-examined on them.
MR. DUNLOP: Yes, that is what I intend to do.
JUDGE TOLSON: It is a question for you how you spend the available time."
"The agreed approach at the trial was not to investigate each and every allegation, but through examination and cross-examination of the history of the marriage and selected allegations to give the overall flavour or complexion of the case and of how personal perspective might have altered reality in terms of the pleaded matters. I shall adopt the same approach in this judgment."
Given what the transcript records, that was an unexceptionable approach.
"The Respondent told the Petitioner that he had seen a suitable present for their housekeeper, in the departure lounge of Cancun airport. The Petitioner went over to see what the Respondent was referring to but could not find it and, so instead decided to purchase a silver tortoise necklace which the Petitioner knew she would like. When the Respondent found out that the Petitioner had ignored his suggestion, he lost his temper. He raised his voice so that those around them could hear him berating the Petitioner and he snapped "why did you not listen to me?" and demanded "why did you not buy what I told you to?" This caused the Petitioner extreme embarrassment as he was visibly chastising her in front of numerous strangers. The Respondent then stormed off. Later, when they were in the queue to board the plane the Respondent continued to audibly criticise the Petitioner and would not let the matter drop, causing her much further unhappiness and embarrassment. The Petitioner asked the Respondent to lower his voice but he nevertheless continued to berate her at the same level. Once they entered the plane, the Petitioner was forced to ignore the Respondent in order that the argument did not continue."
"The Respondent did see a suitable present for the parties' housekeeper. He mentioned this to the Petitioner. She returned with another item which the Respondent found perplexing. He asked why the Petitioner had not purchased what he had suggested but the Petitioner's version of this exchange is exaggerated and inaccurate."
"The Petitioner organised for the Respondent and the Petitioner to have dinner with a male friend ("F"). During the course of the dinner, the Respondent made stinging remarks about the Petitioner which made her and F feel visibly uneasy. The Petitioner spoke to the waiter to comment on the excellent quality of the food. The Petitioner then turned back to the Respondent and F to rejoin the conversation and asked where the conversation had reached. The Respondent snapped at the Petitioner "you missed out by thinking it necessary to talk to the waiter" upsetting and embarrassing the Petitioner in front of F. F rushed to the Petitioner's defence as he clearly agreed that the Respondent's critical remarks were unjustified."
"Whilst dining with the friend, F, the Respondent believed that the Petitioner had been rude by calling over and engaging with the waiter whilst F was talking to the two of them. The Respondent felt that the Petitioner was ignoring what F was saying and sought to catch her attention to indicate that F was in the course of speaking to them. Any embarrassment that may have been caused by the Petitioner was of her own making."
"The Petitioner asked the Respondent if they could have supper at the local pub to save her cooking as she was preparing for a dinner party the next day. The Respondent said that he would "rather not". The Respondent later walked into the kitchen visibly irritated and told the Petitioner that he would book a table because otherwise he would "never hear the end of it". The parties had supper at the pub and for much of the time the Respondent sat silently and often with his head resting in his hands and his eyes closed. The Petitioner felt embarrassed and upset by his conduct and such an overt demonstration to all those around that he did not want to be there with her."
"The Respondent recalls a discussion about having supper at the local pub. He had had a tiring day in the garden and indicated that he would prefer not to eat out. In deference to the Petitioner's wishes, however, he made arrangements for the meal. The Respondent denies that he caused any embarrassment to the Petitioner during the meal. He accepts that he was tired and that there was little conversation. It is generally the Respondent who initiates conversations between the parties. The implication is that the Respondent was sulking. He was not. He was simply tired."
"The Respondent entered the kitchen at the former matrimonial home where the Petitioner was with their housekeeper. The Respondent criticised the Petitioner in front of the housekeeper for putting cardboard in the skip incorrectly. He reprimanded the Respondent saying, "can I say something without you flying off the handle? I have said this before that when you put cardboard in the skip, do it properly and not without any thought about what will happen to it. It was all over the yard. I have picked up the big pieces but I want you to clear the rest from the shrubbery". The Petitioner felt like she was being chastised like a child and she was extremely embarrassed that she was spoken to in this manner in front of their housekeeper. When the Petitioner went outside to clear up "the mess", she and her housekeeper found only four small pieces of cardboard."
"Again the Petitioner misinterprets the Respondent's reasonable request as a reprimand. He was simply seeking to point out to the Petitioner that cardboard put into the skip should be weighted down in order to avoid it being blown around in the wind. The Respondent accepts that since this topic had been raised before his frustration may have shown but any embarrassment caused over this incident was because it was the Petitioner who "flew off the handle" in a manner which was unwarranted.
There were only a few pieces of cardboard to be stowed when the Petitioner went outside because the Respondent had already cleared most of it up. It was a very windy day."
"Q Then in the airport, you accept that he had said to you: "I've seen something over there in the airport shop that I think we should get for our housekeeper"?
Q And directed you in the direction of getting it?
Q You say you went to find it, but then bought something else?
A I couldn't find it.
Q And then you say he got angry with you for that?
A And I bought a lovely little silver tortoise and a chain and I knew she would love that.
Q But he did not get angry with you, did he?
A Oh yes.
Q He just expressed irritation?
A No, this was full on embarrassment, I'm sorry."
"Q I am going to ask you about the incident when you came home through the airport. Now, the cause of whatever passed between you is your wife had done something that was not in accordance with your instructions to her. You told her: "Go and buy that present" and she had bought a different one?
A I certainly didn't say: "Go and buy that present". I suggested that she went because there was a very good, I have forgotten what it was now, but there was a very good offer on something which I thought would suit our housekeeper
Q 13th November you are coming back from Mexico. You have had a lovely holiday?
Q You have been there for a wedding. You agree with what your wife has said about the reason why you went to Mexico for the wedding, etc. etc, yes? Long planned, that sort of thing, yes?
Q And coming back, just to return to my point, you had told her: "Go and buy that", and she had bought something else, yes?
A As I say, I didn't say: "Go and buy that". I said, I suggested she went over to where I'd seen this special offer on some item which I can't remember what it was, and she came back with something else which I thought wasn't as nice as the one I suggested.
A And I----
Q Your answer says: "She had ignored your suggestion for a present". You asked her why she had not acquired what you suggested and you say that was it. That was the extent of the disagreement between you. She had not done something you suggested and you asked her why not? Yes?
Q Do you want to look at your answer?
A Yes. I'm trying to understand what you are getting at. I was surprised that she hadn't looked at what I had suggested. If she'd said: "Yes, I've looked at it, but I think this is better", but she didn't, and I was surprised.
Q You lost your temper according to her. You raised your voice so that those around you could hear you berating her, and snapped at her: "Why did you not listen to me? Why did you not buy what I told you to?" and you embarrassed her. Again, we've all walked through airports, and we've seen these arguments between married couples, one shouting at the other, the other looking embarrassed wishing the ground would open up and swallow them up. You are smiling at me?
A Because I think it's a complete exaggeration of what happened.
Q So she is lying about this?
A She is exaggerating, yes.
Q Did you raise your voice?
A Not to the extent that it might be overheard by other people, or embarrass her, no.
Q Clearly, do you accept she was embarrassed?
A Well, she didn't tell me she was embarrassed.
Q Could you see she was embarrassed?
A No, it was, again, it was over and done within a couple of minutes.
Q Visibly chastising her in front of numerous strangers?
A Oh no, I don't agree with that.
Q "Stormed off" is she making that up or did you storm off?
A Stormed off?
Q Stormed off?
A No, I don't believe I did storm off.
Q I see. You continued to criticise her even when----
JUDGE TOLSON: Can we just because I am quite interested in this, and quite interested in the restaurant one.
MR. MARSHALL: Sorry?
JUDGE TOLSON: I am quite interested in this allegation and the restaurant one, because of the suggestion that it involves embarrassment because those around are aware of what is going on, okay?
MR. MARSHALL: Yes.
JUDGE TOLSON: And that is what this has in common with the restaurant. (To the witness) So could I ask you to concentrate on that? Did you draw attention to yourselves in the airport in Cancϊn?
A My wife and my son and daughter all tell me that I talk too loudly in public places, so whether it's nice things or not so nice, I have a tendency to project my voice, shall we say, but I wouldn't have been shouting. I would not have been aware that other people were listening in to our conversation.
MR. MARSHALL: Not being aware and not caring are quite close, are they not, really?
A No, I don't think so. I would have cared about it embarrassing it would've embarrassed me. My wife has not got the monopoly on embarrassment. I would not have wanted a public disagreement under any situation.
Q You see, if she is telling the truth, I mean you can agree with me, that this would be very embarrassing in a public place, in a foreign country?
A My wife might think that I am talking in a loud voice and in that case she might think she is telling the truth. Whether I am deliberately doing it to embarrass her is what I contend.
Q Did you storm off? You were hesitating between saying "yes" or "no" about that?
A Well, because I am trying to remember storming off. I don't know where I would have stormed off to. We were sitting in the departure lounge, I don't think I stormed off.
Q All right. You continued audibly to criticise her when you were in the queue to board the plane, is that right? You would not let the matter drop, just would not let it go. She had not done what you had told her to do and you would not let it go. Is she lying about that?
A I don't remember enough of it to be able to give you a truthful answer. I don't believe it was a one-sided conversation. If we were talking about it, it wouldn't have been an argument, and I don't believe I was berating her, or whatever she said.
Q Indeed, she says she asked you to lower your voice, but you continued to berate her, you ignored her and continued to berate her at the same level?
A My wife often told me to lower my voice on lots of occasions.
Q And you often ignore her?
A It's my tendency to be aware of how loudly I'm speaking.
Q Even if somebody tells you: "Please don't, lower your voice, you're embarrassing me"?
A Well, she'd often say that in a restaurant, and I'd look around and I would say: "Nobody is listening to us, Tini" we could be discussing anything, politics, religion, anything and she'd say: "Lower your voice".
Q So, there it is, so all of these things they are all out of context, all explanation, she is wrong about this, she is wrong about that; a happy marriage all the time? Not unhappy?
A I think she had an ulterior motive for collecting all these, what, to my mind was a collection of molehills which she felt suited her purpose to build up into mountains because she had aspirations outside of our marriage."
"(1) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as "two years' separation") and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as "five years' separation").
(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
(4) If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 below, grant a decree of divorce."
"(1) The respondent to a petition for divorce in which the petitioner alleges five years' separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage.
(2) Where the grant of a decree is opposed by virtue of this section, then
(a) if the court finds that the petitioner is entitled to rely in support of his petition on the fact of five years' separation and makes no such finding as to any other fact mentioned in section 1(2) above, and
(b) if apart from this section the court would grant a decree on the petition,
the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children or other persons concerned, and if of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all the circumstances be wrong to dissolve the marriage it shall dismiss the petition.
(3) For the purposes of this section hardship shall include the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved."
"the court must if satisfied that the applicant is entitled to a decree nisi so certify and direct that the application be listed before a judge for the making of the decree at the next available date."
Rule 7.20(2)(b), which there is no need for me to set out, provides for what is to happen if the court is not so satisfied. If the matter proceeds, as it does in the overwhelming majority of cases, in accordance with rule 7.20(2)(a), the hearing before the judge lasts only a matter of seconds, the task of the judge being merely to pronounce the making of the decree nisi.
"The general question may be expanded thus: can this petitioner, with his or her character and personality, with his or her faults and other attributes, good and bad, and having regard to his or her behaviour during the marriage, reasonably be expected to live with this respondent?"
"Coming back to my analogy of a direction to a jury, I ask myself the question: Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?"
"The right test is, in my opinion, accurately stated in Rayden on Divorce, 12th ed (1974), vol 1, p 216:
"The words 'reasonably be expected' prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the Court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable."
If authority is required for that proposition it is to be found in the speech of Lord Reid in Gollins v Gollins  AC 644, 660:
"A judge does, and must, try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better.""
Roskill LJ, at p 1125, adopted as correct what Dunn J had said in Livingstone-Stallard.
" the wife would be entitled to a decree in the present suit if she could establish (a) that their marriage remained irretrievably broken down and (b) that since March 16, 1976, he has behaved in such a way that she could not reasonably be expected to live with him. In my judgment, moreover, it is not necessary for her to establish that the husband's behaviour, of which she now complains, was in any way responsible for the breakdown of the marriage.
On the other hand, of course, the facts that the marriage had clearly broken down and, a fortiori, that the breakdown was due to the fault of the wife are or may be matters in determining whether the husband's behaviour since has been unreasonable in this context. The court must have regard to the whole history of the matrimonial relationship. In the words of Bush J in Welfare v Welfare, The Times, October 12, 1977:
"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."
I would adopt also as correct the following passages in Rayden on Divorce, 12th ed, vol 1, p 219:
"In all these cases the totality of the evidence of the matrimonial history must be considered, and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view, after a consideration of any excuse or explanation which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called upon to endure it.""
"In behaviour cases, where the ground relied upon to prove the breakdown or a condition precedent to breakdown is the effect of behaviour, the court has to decide the single question whether the husband (for example) has so behaved that it is unreasonable to expect the wife to live with him. In order to decide that, it is necessary to make findings of fact of what the husband actually did and then findings of fact upon the impact of his conduct on that particular lady. As has been said again and again between a particular husband and a particular lady whose conduct and suffering are under scrutiny, there is of course a subjective element in the totality of the facts that are relevant to the solution but, when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test."
" the gravity or otherwise of the conduct complained of is of itself immaterial. What has to be asked, as will appear from the judgment in O'Neill, is whether the behaviour is such that the petitioner cannot reasonably be expected to live with the respondent."
Having then referred to what Cairns LJ had said in O'Neill, he continued:
"Thus one looks to this husband and this wife, or vice versa, but one also looks at what is reasonable. That is the point referred to by Roskill LJ in his judgment in the same case."
He then set out the relevant passage where Roskill LJ had quoted the earlier words of Dunn J in Livingstone-Stallard and continued:
"That, in effect, is posing precisely the same test as was spoken to by Cairns LJ quoting from Rayden. One considers a right-thinking person looking at the particular husband and wife and asks whether the one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned."
"6.82 The words 'reasonably be expected' in the statute prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it in assessing what is reasonable.
6.83 Allowance will be made for the sensitive as well as for the thick-skinned and the conduct must be judged up to a point by reference to the victim's capacity for endurance, and in assessing the reasonableness of the respondent's behaviour the court would consider to what extent the respondent knew or ought reasonably to have known of that capacity.
6.84 The approach has been summarised obiter in Balraj v Balraj:
(i) the court has to decide the single question whether the respondent has so behaved that it is unreasonable to expect the petitioner or applicant to live with him;
(ii) in order to decide that, it is necessary to make findings of fact as to what the respondent actually did, and findings of fact as to the impact of that conduct on the petitioner or applicant;
(iii) there is, of course, a subjective element in the totality of the facts that are relevant to the solution, but when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test.
6.85 It has been said that the correct test to be applied is whether a right-thinking person, looking at the particular husband and wife or civil partners, would ask whether the one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned."
"6.86 Any and all behaviour may be taken into account: the court will have regard to the whole history of the relationship.
6.88 The court will have regard to the cumulative effect of behaviour. Conduct may therefore consist of a number of acts each of which are apparently reasonable in isolation, but which taken together are such that the petitioner or applicant cannot reasonably be expected to live with the respondent."
"the concept of a vehicle has the same meaning today as it did in 1800, even though it includes methods of conveyance which would not have been imagined by a legislator of those days. The same is true of social standards. The concept of cruelty is the same today as it was when the Bill of Rights 1688 forbade the infliction of "cruel and unusual punishments". But changes in social standards mean that punishments which would not have been regarded as cruel in 1688 will be so regarded today."
" it is instructive to examine the first ground upon which the husband's behaviour is said to have been unreasonable. It reads [and he set it out]. During cross-examination the wife readily admitted that in fact the husband had been retired, or effectively so, for many years. When he had been working it had been building up a successful business which leaves the couple wealthy. No complaint seems to have been made about this at the time. The idea that the lifestyle, whatever it may have been, now contributes to the breakdown of the marriage is fanciful. The ground is no more than a conventional form of words with no application to the present or the breakdown of the marriage at all."
" the wife relied upon events described in a diary she had been keeping On 11 November 2015 the petition was amended to include 27 allegations taken from the diary The wife contends that they are examples of behaviour which was more widespread. I do not accept that. The simple reality of this case is that the 27 pleaded allegations of unreasonable behaviour are the best the wife can come up with. It is these allegations which I must examine."
"In the present context, the law permits me to grant a decree of divorce only if I can find on a balance of probabilities that "the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent" (see sub-section 1(2)(b) of the Matrimonial Causes Act 1973). Only then could I hold the marriage to have broken down irretrievably (if it has). In determining the question whether this Respondent has behaved in such a way I apply an objective test what would the hypothetical reasonable observer make of the allegations but with subjective elements. I have to take into account the individual circumstances of the spouses and the marriage: "would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the characters and personalities of the parties?" (emphasis in original)"
Mr Marshall submitted that this was muddled. With respect, I do not agree. The judge's self-direction was entirely adequate, correctly drawing attention to both the objective test and the subjective elements. Importantly, given one of Mr Marshall's key grounds of appeal, Judge Tolson recognised that he had to take into account "the whole of the circumstances."
"In reality I find that the allegations of alleged unreasonable behaviour in this petition all of them are at best flimsy. I would not have found unreasonable behaviour on the wife's pleaded case. As it is, having heard both parties give evidence, I am satisfied that the wife has exaggerated the context and seriousness of the allegations to a significant extent. They are all at most minor altercations of a kind to be expected in a marriage. Some are not even that."
He then proceeded to explain why.
"My conclusion is at its starkest when considering the batch of allegations which can be categorised as "the husband's reaction to the affair". The first allegation in time is dated January 2013. It is an allegation under Ground 4 above. As pleaded the wife's case reads:
"When the Petitioner was in France, the Respondent telephoned her to tell her that a letter had arrived for her and to query whether he should open it. The Petitioner said it could wait as she was not expecting anything. The Respondent became suspicious and told the Petitioner in an unpleasant manner that this was the difference between her and him: he did not have anything to hide."
It will be recalled that at this point in time, the wife had just served a draft petition for divorce upon the husband. He had responded by querying whether there was someone else. The wife had denied it. She now accepts that during this very month January 2013 after briefly calling off the affair she had been having since November the previous year, she resumed it. It is not clear to me whether this occurred during the same trip to France pleaded in the allegation (the parties have a second home in France), but it matters not. At this point in time the husband did not know of the affair, but was clearly suspicious. The wife did have something to hide and she had hidden it. During the evidence I interrupted the cross-examination of the wife (which was perhaps inevitably hitting the mark) to ask her whether or not she could see that such a reaction by the husband might in context be said to be "fair enough". I suspect that she did see this."
"Any other example from this same batch of allegations might be taken. I shall choose one dated February 2014:
"The Petitioner took 9 pictures to the picture framers which was time consuming. On her return, the Respondent told her in an accusatory and unpleasant manner that she had taken her time and sarcastically commented that "he must have been an interesting framer.""
Again, in my judgment the objective observer can scarcely criticise the husband, especially as the remark was made only 6 months after the husband first knew of the affair and less than 4 months after he had first taxed the wife with it. The wife claims that the iniquity in this behaviour lies in the extent to which it continued over time: the husband could not come to terms with the affair. This is not so. It is instructive that the wife in her statement claims that the husband's comments in respect of the affair increased after July 2014 but as the wife accepted in cross-examination she has not pleaded and cannot recall a single incident on that subject after that date which is only 11 months after the husband first knew of the affair. The wife's case in this respect lacks any substance. In my judgment the very fact that these allegations form a part of the wife's pleaded case demonstrates the weakness of that case. It is an exercise in scraping the barrel."
"During closing submissions I invited leading counsel for the wife to rank his top 3 allegations ie in terms of seriousness. They were as follows: the 'airport incident' the 'restaurant incident' and the 'pub incident' I will not overburden this judgment by setting out the pleaded allegations in full. This, the wife's best case, skilfully argued by leading counsel, proceeds by emphasising what he submits is her increased sensitivity to the husband's old-school controlling behaviour. It is, so it is argued, not acceptable that he makes an exhibition of the couple's differences by arguing in public. The airport and restaurant incidents are examples of 2 arguments in public which allegedly show the husband being domineering; and the pub incident is an evening of obvious silence over dinner. This case might have found favour if I had been satisfied both that the incidents were examples of a consistent and persistent course of conduct and took place as the wife described. I do not so find. Having seen him, I hope the husband will forgive me for describing him as somewhat old-school. I can also find the wife to be more sensitive than most wives. It matters not. The reality remains that these were in my judgment isolated incidents consisting of minor disputes. In the case of the pub incident, if they sat in silence whenever they went out for a meal, the wife would have told me so and pleaded other examples. The husband claimed that he had been tired on this particular evening and I accept that evidence. The wife has cherry-picked one unsuccessful evening and entered it in her diary. It is an illustration of her approach and the weakness of her case. The airport incident was a minor dispute at the end of what it is common ground was a successful holiday (taking place as late as November 2014). In my judgment these 'top 3' instances are merely examples of events in a marriage which scarcely attract criticism of one party over the other. Much the same can be said in respect of all other allegations and the wife's case generally."
"I have not found this a difficult case to determine. I find no behaviour such that the wife cannot reasonably be expected to live with the husband. The fact that she does not live with the husband has other causes. The petition will be dismissed."
He recognised that the effect of his decision was to "leave them stymied in lives neither of them wish to lead." He ordered the wife to pay the husband's costs.
"The government is committed to improving the family justice system so separating couples can achieve the best possible outcomes for themselves and their families. Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed."
The grounds of appeal
i) His primary contention is that, having adopted a process that was seriously flawed, Judge Tolson:
a) failed to make essential (core) findings of fact (1) as to what the husband had actually done in relation to the 27 pleaded allegations and (2) as to the impact of that conduct on the wife;
b) failed to undertake any proper assessment of the wife's subjective characteristics;
c) failed to undertake any assessment of the cumulative impact and effect on the wife of the husband's behaviour a point on which Mr Marshall places particular emphasis; and
d) failed to apply the law properly to the facts.
ii) His subsidiary argument is that the wife's rights under Articles 8 and 12 of the European Convention are clearly engaged and that we need to consider whether what he calls the old authorities on which Judge Tolson relied:
a) should be "reviewed in line with current thinking and social norms"; and
b) are consistent with the wife's rights under Articles 8 and 12.
He invites us to consider what level of 'fault' must be established to obtain a divorce and whether dispositive, or at least greater, weight should be given to the petitioner's wishes and feelings. More profoundly, he invites us to consider whether the requirement to prove 'fault' is consistent with Articles 8 and 12.
The approach of the Court of Appeal
"22 Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP  EWHC 3964 (Fam),  1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."
23 The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski  1 WLR 1360. I confine myself to one short passage (at 1372):
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis"."
"21 But deciding the case as if at first instance is not the task assigned to this court or to the Inner House Lord Reed summarised the relevant law in para 67 of his judgment in Henderson [Henderson v Foxworth Investments Ltd  UKSC 41,  1 WLR 2600] in these terms:
"It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified."
When deciding that a judge at first instance who has heard the evidence has gone "plainly wrong", the appeal court must be satisfied that the judge could not reasonably have reached the decision under appeal.
22 The rationale of the legal requirement of appellate restraint on issues of fact is not just the advantages which the first instance judge has in assessing the credibility of witnesses. It is the first instance judge who is assigned the task of determining the facts, not the appeal court. The re-opening of all questions of fact for redetermination on appeal would expose parties to great cost and divert judicial resources for what would often be negligible benefit in terms of factual accuracy. It is likely that the judge who has heard the evidence over an extended period will have a greater familiarity with the evidence and a deeper insight in reaching conclusions of fact than an appeal court whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence."
The grounds of appeal: process
"The parties having chosen to fight the case in this way, the judge was obviously bound to find, as he did find with the utmost care, where he thought the truth lay on every one of those allegations which had been launched before him by way of charge and countercharge over so long a period."
"(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
FPR rule 1.1 is supplemented by FPR rule 22.1, which confers on the court extensive powers to control the evidence, including, by rule 22.1(2), the power to exclude admissible evidence.
The grounds of appeal: failure to make findings of fact
The grounds of appeal: failure to assess the wife's subjective characteristics
The grounds of appeal: failure to assess the cumulative impact
The grounds of appeal: failure to apply the law
The grounds of appeal: the Convention
"52 The Court agrees with the Commission that the ordinary meaning of the words 'right to marry' is clear, in the sense that they cover the formation of marital relationships but not their dissolution. Furthermore, these words are found in a context that includes an express reference to 'national laws'; even if, as the applicants would have it, the prohibition on divorce is to be seen as a restriction on capacity to marry, the Court does not consider that, in a society adhering to the principle of monogamy, such a restriction can be regarded as injuring the substance of the right guaranteed by Article 12.
Moreover, the foregoing interpretation of Article 12 is consistent with its object and purpose as revealed by the travaux prιparatoires In the Court's view, the travaux prιparatoires disclose no intention to include in Article 12 any guarantee of a right to have the ties of marriage dissolved by divorce.
53 The applicants set considerable store on the social developments that have occurred since the Convention was drafted, notably an alleged substantial increase in marriage breakdown.
It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions. However, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate."
"It is true that, on this question, Article 8, with its reference to the somewhat vague notion of 'respect' for family life, might appear to lend itself more readily to an evolutive interpretation than does Article 12. Nevertheless, the Convention must be read as a whole and the Court does not consider that a right to divorce, which it has found to be excluded from Article 12, can, with consistency, be derived from Article 8, a provision of more general purpose and scope. The Court is not oblivious to the plight of the first and second applicants. However, it is of the opinion that, although the protection of private or family life may sometimes necessitate means whereby spouses can be relieved from the duty to live together, the engagements undertaken by Ireland under Article 8 cannot be regarded as extending to an obligation on its part to introduce measures permitting the divorce and the re-marriage which the applicants seek."
"47 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 compliance with the Convention and to reconcile the competing personal interests at stake.
49 The Court has already held that neither Article 12 nor 8 of the Convention can be interpreted as conferring on individuals a right to divorce. Moreover, the travaux prιparatoires of the Convention indicate clearly that it was an intention of the Contracting Parties to expressly exclude such right from the scope of the Convention. Nevertheless, the Court has reiterated on many occasions that the Convention is a living instrument to be interpreted in the light of present-day conditions. It has also held that, if national legislation allows divorce, which is not a requirement of the Convention, Article 12 secures for divorced persons the right to remarry.
50 Thus, the Court has not ruled out that the unreasonable length of judicial divorce proceedings could raise an issue under Article 12. The Court did not rule out that a similar conclusion could be reached in cases where, despite an irretrievable breakdown of marital life, domestic law regarded the lack of consent of an innocent party as an insurmountable obstacle to granting a divorce to a guilty party. However, that type of situation does not obtain in the present case, which concerns neither a complaint about the excessive length of divorce proceedings nor insurmountable legal impediments on the possibility to remarry after divorce.
56 In the Court's view, if the provisions of the Convention cannot be interpreted as guaranteeing a possibility, under domestic law, of obtaining divorce, they cannot, a fortiori, be interpreted as guaranteeing a favourable outcome in divorce proceedings instituted under the provision of that law allowing for a divorce (emphasis added)."
"That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted. The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects."
"Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court, and not to include any reference to children"
Resolution in its 2016 Guide to Good Practice on Correspondence has, as an example of good practice and how correspondence can be constructive, a form of letter beginning divorce proceedings:
"Jane tells me that neither of you is solely responsible for your marriage breakdown but she does feel that it is irreversible. The law relating to divorce does not permit a no-fault divorce until a period of at least two years has expired since you stopped living together. In order to obtain a divorce sooner, couples have to rely on the fault-based facts of adultery or unreasonable behaviour.
Jane tells me that neither of you have formed a new relationship so the purpose of this letter is to ask whether you would be prepared to consider co-operating with a petition based on details of behaviour.
I will let you have a draft of the divorce petition so that, if possible, this can be dealt with by way of agreement. Alternatively, if you would prefer to let me have some details of your behaviour that would be acceptable to you as the basis for a petition please let me have a draft. I enclose some sample examples that I have already provided to Jane to demonstrate the sort of things that may be referred to.
Jane would like both of you to retain your dignity throughout the divorce and the information about alleged behaviour will be as mild and uncontentious as possible."
Lady Justice Hallett :
Lady Justice Macur :