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This week, the high court denied a husband the opportunity to appeal occupation and non-molestation orders made against him, and in favour of his wife. The case is an interesting one for many reasons, not least because we rarely get to hear about court proceedings arising from allegations of domestic abuse: few of them reach appeal stage, and – in contrast to most of the rest of family law – there is very little guidance from the higher courts about the correct interpretation of the law.

The case concerned a wealthy and quite elderly couple, with a wife aged in her late 70s and a husband of 67. They have been married for nearly thirty years, and lived together for twenty years before that. The house is in the husband’s sole name, as are several other properties. There are three children of the family, all middle-aged men now. When the husband was diagnosed with and hospitalised by a serious illness earlier this year, t the wife filed for divorce, and changed the locks on their home and the code to its entry gate.

The case report explains the context:

“The wife’s case before Judge Murfitt was that the husband had ill treated her on many occasions during the marriage, including occasions when he had been physically abusive towards her. She also alleged that he had been unfaithful and latterly disinhibited in his behaviour. The wife described the husband as an extremely difficult man of whom she was genuinely frightened. She said that for the duration of the marriage she had been the emotional punch bag for his insecurities and frustrations. She alleged that she has been completely dependent on him financially, in particular on cash provided by him. The husband denied that he has ever ill-treated her and contended that it is she who has behaved in an intimidating fashion towards him. He denied her assertion that she has been unhappy for many years, pointing out that they frequently went on holiday together until shortly before the breakdown of the marriage.”

After learning of the wife’s decision to start a divorce, the husband came to the house and spent two hours shouting at the wife and banging on windows and doors with a stick, trapping the wife inside until the police arrived. Just over a couple of weeks later, he came again to the house with one of the sons and other men, and together they retrieved the husband’s Rolls Royce from the garage. The next day, the husband’s solicitors wrote to the wife and requested that she move out so that the husband could return. Subsequently the husband and son came to the house several times each day and sat outside it, which the wife said she found intimidating. During the trial, the court heard that the husband continued to drive past the home several times per day and loiter around it.

In court, the husband dropped his request that the wife move out so he could move back in. He asked instead for an order that regulated the occupation of the (large) property so they could both live there at the same time. The court concluded that the husband would not be likely to stick to such an arrangement, so granted the wife an order that she should be able to occupy the home, excluding the husband, and that the husband should not loiter around it, or attempt to enter it. The wife also obtained a non-molestation order in terms that the husband was forbidden to use or threaten violence against the wife and must not instruct, encourage or in any way suggest that any other person should do so.

The judge felt that the wife’s evidence was more credible than the husband’s, and made the orders she felt were necessary on that basis. And, when the husband came to appeal, that was the fundamental problem he faced.

There is no absolute right of appeal in family law: in order to gain permission to take your case to a higher court, there must be a good reason to do so, not simply that you don’t agree with the court’s decision. In this case, so much turned on the evidence heard by the initial judge that the appeal court was clear that it would be wrong for them to second-guess the judge’s decision. The judge had adhered to the law and she had decided she didn’t believe the husband, with good reason on the evidence.

The most interesting facet of the appeal court’s decision is the confirmation that there need not have been actual physical violence for the court to make an order excluding one party from the former home. This is not new, but shows a subtle shift in what the court considers could cause ‘significant harm’ in domestic relationships. The husband sought to undermine the wife’s allegations of years of control and abuse by saying that couldn’t possibly have been the case as the two of them were going on holidays together frequently and recently, and the wife visited the husband daily when he was in hospital, until she decided to start the divorce.

The court said,

“I conclude that the judge was entitled to accept the wife’s assertion as to the husband’s intimidating and provocative behaviour throughout the marriage. She accepted that wife “has reached the end of a road she has trodden unhappily for many years and … no longer feel strong enough to manage it”. The judge found that there was evidence to support her allegation that the husband was controlling and intimidating. Although she did not expressly say so in her judgment, it is manifestly clear that she concluded that the harm which the wife had suffered as a result of the husband’s intimidating and controlling behaviour, and was likely to suffer if the order was not made, was significant harm within the meaning of [the law]. In my judgment, this was plainly a conclusion that she was entitled to reach. The concept of significant harm is one with which all family judges are very familiar…. Furthermore, the judge was in my view entirely right to draw attention, when setting out her reasons for refusing permission to appeal, to the changes in understanding and awareness of the nature and extent of domestic abuse that has occurred in the last fifteen years.”

We know that emotional harm can be just as significant as physical harm in its effect, and welcome the court’s recognition of this. Long relationships can be particularly complex in the patterns of behaviour built over many years, and in some cases we are aware that complexity can hide serious issues of abuse and harm.

The twist in the tale comes at the end of the report, when we are told that the couple has apparently reconciled. The court still made the order, on the basis that the couple could seek to discharge it if necessary.

If you would like to speak to us about anything you have read above, or any other family law matter, you can give us a call on 01223 443333 and make an appointment to speak to Adam, Simon, Sue, Gail or Tricia. Please note that the office will close for Christmas at 5pm on Friday 23 December, and will reopen at 9am on Tuesday 3 January. We wish all our readers a happy and peaceful Christmas.


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