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From Lady Hale,

'But my third misgiving is the most troubling of all. This was a case which depended upon the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time. Those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which
should exist in any marriage. There is an analogy here with constructive dismissal cases in employment law. '

Whoahh there!

Firstly, it may be easy to say that 'trust and confidence' may exist in a 'good' marriage. But that is far from saying it must exist in every marriage. Clearly, it need not.

If one spouse commits adultery and the other is aware but nevertheless chooses to continue to be married, where does that leave the concept of 'trust and confidence' being an essential part of every marriage? Both are shattered but there is a 'forgiveness' or, perhaps, a 'resignation', or maybe a fear of being alone, which means the marriage soldiers on.

Secondly, to see an analogy with a repudiatory breach of contract does not work. The 'innocent' spouse may be fully aware of the 'breach' but choose to soldier on, even, perhaps, to twist the knife , who knows.

Thirdly, didn't the court clearly establish that 'fault' is not required? Is not a 'repudiatory contractual breach' argument tantamount to fault by the back door?

If you are going to apply a contract law analogy, surely frustration is more apposite?

I regret this is not the Supremes' finest hour.