Divorcing on the grounds of unreasonable behaviour
Proving the facts
With no-fault divorce expected to become a reality in Autumn 2021, those couples seeking to file for divorce still cannot do so without showing that one of the parties is at fault and there has been an irretrievable breakdown of the marriage: this is the only ground for divorce in England and Wales.
However, to prove that the marriage has broken down, you need to set out the basis, or fact, upon which you seek to rely in a divorce.
There are five facts, of which “unreasonable behaviour” is one. The other facts are adultery, two years’ separation, five years’ separation and desertion. For further information on these other grounds, please refer to Marc Etherington’s blog here.
Despite the fault-based fact of “unreasonable behaviour” being the most commonly used fact in recent years, it would be incorrect to think it can be easily demonstrated. This issue came to light in the recent Supreme Court case of Owens v Owens, where Mrs Owens failed to persuade the Court that Mr Owens’ behaviour was unreasonable enough and that she could not reasonably be expected to live with her husband, despite listing 27 examples of Mr Owen’s moody, argumentative and disparaging behaviour. The Supreme Court acknowledged that the current law had not kept pace with modern relationships, but it was satisfied that the existing law had been correctly interpreted.
What exactly constitutes “unreasonable behaviour”?
The law provides that a divorce can be granted on the basis where ‘the Respondent has behaved in such a way that Petitioner cannot reasonably be expected to live with the Respondent’ and as a result the marriage has irretrievably broken down.
However, it is not always clear as to what constitutes “unreasonable behaviour” and there is no exhaustive list that would help to establish what is sufficient to be able to succeed on this fact. Some examples will be clear, in the cases of physical and verbal abuse, improper association with other people and substance abuse. However, occasionally the lines are blurred and what may be deemed as unreasonable by one person may be acceptable to others.
It is important to bear in mind though, that the test is not whether the Respondent’s behaviour is unreasonable but rather the effect of it – that it cannot be reasonable to expect the Petitioner to continue living with the Respondent. In any petition, it is necessary to explain the effect of the behaviour on the Petitioner and clarify how the Respondent’s behaviour made the Petitioner feel. Generally, it will be useful to list four to six examples of the behaviour, for example, “a lack of affection by the Respondent made the Petitioner feel unloved”.
What are the time limits when presenting a divorce petition on the grounds of “unreasonable behaviour”?
It is important to remember the general time limit when presenting a divorce petition on this -the petition must be presented within six months from the last incident of “unreasonable behaviour”.
Provided that the parties still live together in the martial home, the Court may refuse to grant the petition if it has been longer than six months as the Petitioner could then be reasonably expected to live with the Respondent. If the parties are not living together in the martial home, the Petitioner can still issue a petition based on this fact, however, should do as soon as is possible or else will have to rely on the fact of separation.
Cases like Owens v Owens are exceedingly rare but do highlight the significance of working with an experienced and robust family lawyer who can interpret the situation and fully understands the importance of the wording of family law legislation.
If you require support or guidance on the issues highlighted in this post, or generally on divorce and the issues faced, please contact one of our experienced family law specialists on firstname.lastname@example.org
This post is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice.