29 Jul 2020Read more
What is unreasonable behaviour?
In the courts of England and Wales there is only one ground for divorce and that is the “irretrievable breakdown of the marriage”. What this means is that one or both parties to the marriage are not willing, or do not want, to continue living and being in a relationship with one another, having determined that the marriage is over for good.
Whilst there is one ground for divorce, there are five legally accepted facts (or reasons) for a divorce to take place. Although the courts have been considering a no-fault basis divorce, unfortunately, we are still working on a fault-based system.
For the purposes of this article we will look at the most common ground for divorce, being that of unreasonable behaviour. When determining what constitutes unreasonable behaviour the courts will apply the following subjective and objective test:
Alongside adultery, unreasonable behaviour is the only other fact that entitles you as a petitioner to start divorce proceedings immediately, with the remaining reasons requiring a period of two years or more elapsing.
For the purposes of the courts, the particulars relied on to evidence that the respondent has acted “unreasonably”, will need to be more than typical arguments in a relationship. The most recent case which exemplifies this is the case of Owens -v- Owens  UKSC 41. Within the case the courts considered what constituted unreasonable behaviour when taking into consideration the wording of Section 1(2)(b) of the Matrimonial Causes Act 1973 alongside relevant case law. The Supreme Court concluded that any behaviours, relied on within an unreasonable behaviour petition, were to be subjected to the following three-stage enquiry by the family court:
Within the case of Owens, it was determined that the particulars relied on by Mrs Owens were typical arguments faced by couples in a longstanding relationship and as such on a strict interpretation of the matrimonial causes act were not ‘unreasonable’. In short, the reasons why you are bringing an unreasonable behaviour petition need to amount to more than the fact that the parties are bored with the marriage or think that they are no longer compatible.
Typically, when filling out a divorce petition, four or five of the following particulars are relied upon together with an explanation as to how that particular behaviour has left the petitioner feeling: -
Whilst divorce proceedings are still fault-based, we as solicitors try where possible to reduce any animosity between divorcing couples by trying to agree the particulars beforehand. Understandably, if you are going through an acrimonious separation this is not always possible. One common misconception is that the person at ‘fault’ will be penalised within any associated financial remedy proceedings. This is only true in the most exceptional of circumstances as the court’s main aim is to ensure where possible both parties needs are met from the assets accumulated during the marriage.
Whilst the divorce procedure may be touted as formulaic or you are offered ‘quickie divorce’ there are complexities involved within preparing the required documentation.
16 Jun 2020
Due to Covid-19, many separated parents are trying to manage the shared care of their children, manage home schooling, and ensure that they are protecting themselves and their families from the virus. In recent weeks, we have seen in the press that many separated parents are fighting each other through the courts over whether their children should return to school as the lockdown is eased. Solicitor Jonathan Casey examines the issues.Read more
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