Birch v Birch [1991] EWCA Civ 5 (22 October 1991)

Birch v Birch [1991] EWCA Civ 5 (22 October 1991)

The trial judge applied the wrong (objective) test to the question of unreasonable behaviour. On the facts as found, applying the correct subjective test, the husband's behaviour was such that the wife could not reasonably be expected to live with him. The wife's appeal is allowed and a decree nisi of divorce is granted.

Citation
[1991] EWCA Civ 5
Parties
Appellant/petitioner (wife): Patricia Birch; Respondent (husband): Neville Birch
Jurisdiction
England and Wales
Judgment Date
22 October 1991
Procedural Posture
Divorce Petition Appeal / Appeal From Dismissal of Petition at First Instance
Outcome
Appeal allowed; decree nisi of divorce granted to wife.
Legal Topics
Divorce, Irretrievable Breakdown of Marriage, Unreasonable Behaviour, Matrimonial Causes Act 1973 S.1(2)(b)
Family Law Divorce Irretrievable Breakdown of Marriage Unreasonable Behaviour Matrimonial Causes Act 1973 S.1(2)(b)

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Parties

Patricia Birch

Appellant/petitioner (wife)

Neville Birch

Respondent (husband)

Procedural Posture

Divorce Petition Appeal / Appeal From Dismissal of Petition at First Instance

Legal Issues

  1. 1 Whether the husband's behaviour was such that the wife could not reasonably be expected to live with him under s.1(2)(b) Matrimonial Causes Act 1973
  2. 2 Whether the trial judge applied the correct (subjective) legal test for unreasonable behaviour

Ratio Decidendi

The trial judge applied the wrong (objective) test to the question of unreasonable behaviour. On the facts as found, applying the correct subjective test, the husband's behaviour was such that the wife could not reasonably be expected to live with him. The wife's appeal is allowed and a decree nisi of divorce is granted.

Court Disposition

Appeal allowed; decree nisi of divorce granted to wife.

Orders

  • Decree nisi of divorce pronounced in favour of the wife against the husband on the grounds of the petition.
  • No order for costs; legal aid taxation of wife's costs.