DT v CG (D 3 of 2021) [2022] TCASC 21 (29 July 2022)

Flynote

Civil Remedies

Case summary

Petition for a decree nisi granted. Section 5(1) of the MCO makes it clear that there is one ground under which a petition may be presented; that the marriage has broken down irretrievably. Section 5(2) of the MCO then provides five factual scenarios, at least one of which a petitioner must satisfy the Court of, before it may find that the marriage has broken down irretrievably. To satisfy itself the court must enquire into “any facts” alleged by the parties (section 5(3)). Even where the Court is satisfied of a section 5(2) fact, pursuant to section 5(4), the court must notwithstanding the occurrence of the fact, be further satisfied “on all the evidence” that the marriage has broken down irretrievably. [11] In the instant case, the petitioner relied on section 5(2)(b); that the respondent has behaved in such a way that he cannot reasonably be expected to live with her. Counsel for both parties used the common shorthand “unreasonable behaviour”, to describe this ground. However, as the decided cases have pointed out, this is undesirable, as on its plain interpretation section 5(2)(b) does not require a respondent’s behaviour to be “unreasonable”. [12] Owens v Owens [2018] UKSC 41; [2018] 4 All ER 721 considered. To satisfy section 5(2)(b), the Court must ask whether given the respondent’s actions the petitioner could not reasonably be expected to continue to live with them, taking into account all of the circumstances and the characters and personalities of the parties. The Court must be fair to both parties, expecting of them “neither heroic virtue nor selfless abnegation”, keeping in mind that it is the subjective reaction of the petitioner to the respondent’s conduct which must be taken into account, and the behaviour need not be “grave or weighty”. [13] Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766, [1974] Fam 47; Pheasant v Pheasant [1972] 1 All ER 587, [1972] Fam 202; Balraj v Balraj (1981) 11 Fam Law 110; Buffery v Buffery [1988] 2 FLR 365 considered. The court found that the respondent failed to communicate both before and after the petitioner left the home and that it would be unreasonable to expect the petitioner to continue in a marriage with a spouse in all the circumstances, given the characters and personality of the petitioner. The court found there was sufficient evidence that the marriage had broken down irretrievably. The court rejected the respondent’s financial hardship argument and found that the arrangements for the minor child were satisfactory. [14] to [19]

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