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:
“Would any right-thinking person come to the conclusion that this respondent has behaved in such a way that this petitioner cannot reasonably be expected to live with him or her taking into account the whole of the circumstances and the characters and personalities of the parties?” Livingstone-Stallard -v- Livingstone-Stallard [1974] FAM 47
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 [2018] 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:
- Consider the behaviour allegations in the petition and determine what the respondent did and did not do;
- Assess the effect of that behaviour on this particular petitioner taking into account the latter’s personality and disposition and all of the circumstances in which it occurred; and
- Evaluate whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent is unreasonable.
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: –
- verbal abuse;
- physical violence;
- failure to provide emotional support;
- failure to provide financial support;
- demanding sexual intercourse too often or a lack of interest in sexual intercourse;
- lack of affection;
- frequently socialising without the petitioner;
- drinking to excess or taking drugs;
- an improper association with another man or woman.
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.
If you have any questions about how to file for divorce, based on your partner’s unreasonable behaviour, please get in touch. We are here to help you. Please contact us by telephone on 0161 507 7145.
