Mrs Tini Owens applied to the UK courts for a divorce. She testified that her marriage made her feel "unloved, isolated and alone" (para 83).
Why did the UK courts refuse her application and leave her "locked into a loveless and desperately unhappy marriage" (para 83)?
Applicable UK Law
First of all, it is vital to understand what the applicable UK law says. On this, the relevant part of UK Law says:
- for Mrs Owen to get her divorce, she must prove to the Judge's satisfaction that
- her husband "has behaved in such a way that [she] cannot reasonably be expected to live with [him]."
- (Section 1(2)(b) of the Matrimonial Causes Act 1973).
- the Judge has to evaluate what is proved to have happened
- (i) in the context of this marriage,
- (ii) looking at this wife (Mrs Owen) and this husband (Mr Owen),
- (iii) in the light of all the circumstances and
- (iv) having regard to the cumulative effect of all of Mr Owen's conduct, AND
- given all the above, ask the question: has her husband (Mr Owen) behaved in such a way that Mrs Owen cannot reasonably be expected to live with Mr Owen? (para 37)
Mrs Owens was born in 1950 whereas her husband, Mr Owens, was born in 1938. They married in 1978 (when she was 28 and he was 40, with a 12 year age difference between them). She applied for a divorce in 2015 (when she was 65 and he was 77). By then, they have 2 adult children and they had already separated for three months (para 3).
On Mrs Owen's behalf, her lawyers raised 27 allegations.
At the hearing, her lawyer opened her case in the following way (para 8):
- We have indicated, and my client (Mrs Owen) 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 (Mr Owen) 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, Mrs Owen's lawyer 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.
- 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.
- 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.
In the course of Mrs Owen's lawyer's closing, the learned Judge asked him to identify his top two or three ranking allegations. Mrs Owen's lawyer in fact identified four and they were as follows (para 12 to 19):
- First Allegation (the Airport Incident):
- The Respondent (Mr Owen) told the Petitioner (Mrs Owen) 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.
- Husband's Answer (to the Airport Incident):
- 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.
- Second Allegation (Restaurant Allegation):
- 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.
- Husband's Answer (to the Restaurant Allegation):
- 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.
- Third Allegation (the Pub Incident):
- 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.
- Husband's Answer (to the Pub Incident):
- 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.
- Fourth Allegation (the Housekeeper Incident):
- 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.
- Husband's Answer (to the Housekeeper Incident):
- 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.
To get a "flavour" of the cut and thrust of the cross-examination, the UK Court of Appeal quoted two passages.
The first passage was about the Airport Incident with the questions being put by the husband's lawyer and Mrs Owen answering them (para 20):
- 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"?
- A Mmhuh.
- Q And directed you in the direction of getting it?
- A Yes.
- 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?
- A Yes.
- 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?
- A 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.
- Q Yes.
- 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?
- A 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 Cancún?
- 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.
The UK Court of Appeal quoted extensively from the learned Trial Judge's Judgment (para 42 to 50). This is to be expected as this was the Judgment that Mrs Owen was arguing the Court of Appeal should overturn (that is, to reverse the Judgment).
- It is plain from his judgment that Judge Tolson was unimpressed by the wife's petition. He variously described it as "hopeless" (judgment, paragraph 2), "anodyne" (paragraph 7), and "scraping the barrel" (paragraph 13). He said it "lacked beef because there was none" (paragraph 7). He described paragraphs 3 and 4 as "the only 2 grounds which … might in context have provided grounds for divorce." He said the allegations "are at best flimsy" (paragraph 12).
- The judge was, and, as it seems to me, with every justification, scathing about paragraph 1:
- "… 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."
- Describing the 27 allegations set out in the particulars of paragraphs 3 and 4, the judge said this:
- "… 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." (underlining added)
- The judge directed himself as follows:
- "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."
- The judge expressed his conclusion in these words:
- "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." (underlining added)
- He then proceeded to explain why.
- This part of his judgment falls into three sections. I shall take them in turn. In the first, Judge Tolson said this:
- "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."
- In the second section, the judge said 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."
- In the third section, Judge Tolson dealt with the airport incident, the restaurant incident and the pub incident:
- "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." (underlining added)
- Judge Tolson concluded with this:
- "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 learned Trial Judge
- 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.
- 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.
- 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."
- ... I note some important findings of fact made by Judge Tolson.
- First ..., he specifically rejected the wife's case that the pleaded 27 allegations were "examples of behaviour which was more widespread." His finding was clear: "I do not accept that." He made the same point ... in relation to the airport and restaurant incidents. He said that the wife's case might have found favour if "both that the incidents were examples of a consistent and persistent course of conduct and took place as the wife described." Again, his finding was clear: "I do not so find."
- Second ..., he found that the wife's case in relation to the husband's reaction to her affair "lacks any substance" and "demonstrates the weakness of [her] case."
- Third ..., he accepted the husband's evidence in relation to the pub incident.
- Fourth ..., and more generally, he found that "the wife has exaggerated the context and seriousness of the allegations to a significant extent."
- These, in my judgment, were all findings which were plainly open to the judge and with which we cannot possibly interfere.
The said Court went on to make trenchant comments on the current state of UK divorce law (para 84 to 98).
Thereafter, Mrs Owen appealed to the UK Supreme Court, against the UK Court of Appeal's decision.
The UK Supreme Court dismissed her appeal.
Thus, the UK courts refused to grant Mrs Owen the divorce she wanted.
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