Unreasonable Behaviour in Divorce Explained

In England and Wales, there is only one ground for divorce, which is the irretrievable breakdown of the marriage.

The person who starts divorce proceedings (called the Petitioner), when issuing the divorce application, must show that the marriage has irretrievably broken down by relying on one of five facts:

      • Adultery
      • Unreasonable behaviour
      • Separation after two years with the Respondent’s consent
      • Separation after five years without the Respondent’s consent
      • Desertion

Unreasonable behaviour is, according to the Office for National Statistics, “the most common reason for divorce”; and in 2017, “37% of all husbands and 52% of all wives” applied for divorce on the grounds of unreasonable behaviour.

For initial advice get in touch with our Family Law and Divorce Solicitors.

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What Does Unreasonable Behaviour Mean?

Although referred to as ‘unreasonable behaviour’, it should be noted that this is shorthand and the law in full states that “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”.

What is the Test for Unreasonable Behaviour?

In the divorce case Livingstone-Stallard v Livingstone-Stallard (1974), the Judge set out the following test for unreasonable behaviour:

“Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and personalities of the parties?”

The initial consideration by the Court of the allegations of behaviour is objective. But the subjective element quickly comes into play as the effect on that particular person and all the circumstances of the parties must be considered. This will naturally come from their viewpoint.

Unreasonable Behaviour in Owens v Owens Divorce Case

The issue of what constitutes unreasonable behaviour in divorce has also been placed under the spotlight in the very recent divorce case of Owens vs Owens.

Tini Owens claimed her marriage to her husband is loveless, had broken down irrevocably and that she shouldn’t reasonably be expected to stay married.

However, her divorce application was dismissed by the Judge who said Mrs Owens had failed to prove that her husband had behaved in such a way that she could not reasonably be expected to live with him.

Despite listing 27 examples of Mr Owen’s behaviour, including the following:

      • Prioritising work above home life
      • Not giving her love, attention or affection
      • Being moody and argumentative
      • Being unpleasant and disparaging towards her and friends

Mrs Owens’ divorce application failed to meet the threshold for unreasonable behaviour. The Judge commented that the application was “hopeless”, “anodyne”, with the particulars being “at best flimsy” and no more than “minor altercations of a kind to be expected in a marriage”.

Mrs Owens’ appealed the decision and it went all the way to the UK Supreme Court. However, the decision was upheld.

Although it was acknowledged that the decision left Mrs Owens “trapped in (a) loveless marriage”, the UK Supreme Court decided that the Judge in the first instance had in fact applied the law correctly, and Mrs Owens had failed to prove that Mr Owens had behaved in such a way that she couldn’t be expected to live with him.

The divorce case resulted in very strong calls for the current law to be reviewed by parliament, in order to move away from this “fault-based” system” - and justice secretary David Gauke has since confirmed the UK government will introduce this reform, so couples no longer have to wait years or apportion blame for the collapse of their relationship.

Couples applying for divorce on the grounds of unreasonable behaviour should:

    • Set out the respondent’s unreasonable behaviour briefly but with sufficient detail to satisfy the Court. You don’t want a specific example that can be disproved. Patterns of behaviour are best.
    • Explain the effect of the behaviour on the person making the application - how did it make them feel?
    • Try to avoid including references to the children.
    • If the parties still live together, then the respondent’s behaviour should be ongoing or at least have taken place within six months of the divorce application being issued.
    • If the parties are reasonably amicable, it’s encouraged that the person applying provides the respondent with a copy of the application and ‘unreasonable behaviour’ particulars before issuing at Court. This is an attempt to try and ensure that the application is not defended and also to reduce animosity. This isn’t appropriate if there is domestic violence.
    • If the person applying suspects adultery, but there is no admission or evidence, then it can be listed as a particular of ‘unreasonable behaviour’ in terms of “improper association”.
    • The person making the application should reserve their right to add further and better particulars should the divorce be contested (disputed). So, further evidence of the facts relied on can be provided and may help satisfy the Court that the statutory test of unreasonableness is met.

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