Unreasonable behaviour is by far the most common fact used in divorce. This can be almost anything but if you want your divorce to go smoothly, there are some areas to steer clear of.
The current law relating to divorce proceedings dates back to 1973. Some 46 years without amendment. It states that if parties have not been separated for more than 2 years, they have to rely on either unreasonable behaviour or adultery to support the ground of irretrievable breakdown of marriage.
So, what is “unreasonable” behaviour in divorce?
The reality is that unreasonable behaviour can cover a multitude of sins – it is simply behaviour that one party finds unacceptable and the courts deem serious enough to grant a divorce. In most cases, the examples of unreasonable behaviour given has no bearing on any other aspect of the divorce, like where the children live or the financial settlements. It is simply a requirement that examples of unreasonable behaviour are listed in the divorce petition. This is why there is a growing clamour for a no-fault divorce in this country. The law currently requires you to list faults of the other person, which can make an already emotionally charged situation worse, leading to denials and counter claims, slowing down the process and costing everyone more money.
Generally, we would advise between three and six examples are included in a petition. You do not need to go to town and deliver a long list.
There are some common examples of unreasonable behaviour but the first thing to say is that if you want a straight-forward uncontested divorce, there are some areas to try and steer clear of.
It is wise to steer clear of issues surrounding the children if possible, for instance excessive discipline. No one likes children being brought into the dispute between the parents. While there may be a genuine reason for wanting to include something relating to the kids, there will be plenty of other things to choose from that are less inflammatory.
Others to avoid if possible are things like financial mismanagement and excessive drinking. Ironically, these are among the most common ones, but they are likely to provoke a defensive reaction from the other party, trying to justify their actions or play the situation down. If they do that, they will be contesting the divorce which will slow it down and increase the cost.
To keep things moving, it is best to stick to mild reasons, like your partner being moody and/or argumentative, inappropriate relationship (not adultery) with another person, or a lack of intimacy. Spending too much time working rather than with the family is one of the most common, non-inflammatory reasons we see.
And of course, there are a whole range of bizarre and more unusual ones that we won’t go into here but are quite often sex-related.
An experienced divorce and family lawyer will be able to talk you through the options for you and suggest the best route to take for your circumstances. Remember this though, while you may feel like putting the knife in, or contesting all the examples of unreasonable behaviour listed by your partner, doing so will score no points with the court and is likely to cost you time and money.
How to demonstrate unreasonable behaviour
To rely on this, the party starting proceedings must satisfy the court that the other party to the marriage “has behaved in such a way” that they “cannot reasonably be expected to live with them”. The test has been defined as whether a right-thinking person would conclude that the party starting proceedings could not be expected to live with the other party.
Most divorces are not opposed (contested). Therefore, proving unreasonable behaviour is hardly ever an issue. However, for a couple trying to get divorced a few years ago (Owens v Owens ), the court has had to examine this point and decide what is or is not reasonable or unreasonable and to what extent one of them should expect to live with the other and presumably, the behaviour they complain about. It has been determined that there is a 3 strand test:-
- an examination of what the person did
- an examination of that behaviour upon the party applying for the divorce
- as assessment by the court taking these 2 factors into account and the evidence before it as to the history of the marriage
It is about whether these two parties can be reasonably expected to live with each other.
Problems proving unreasonable behaviour to the court
In the case referred to, Mrs Owens said her husband’s behaviour was such that she couldn’t be expected to live with it. Mr Owens did not accept the claims of unreasonable behaviour. The first judge to hear the case found that the behaviour alleged was “scraping the barrel”. He agreed the marriage had broken down, but for reasons other than those claimed by Mrs Owens and refused to dissolve the marriage based on the allegations of unreasonable behaviour put forward. The parties were to stay married, even though Mrs Owens certainly did not want to.
The case was appealed. The Court of Appeal agreed with the first judge and dismissed the appeal, leaving the parties still married. Unusually, the case went on then to the Supreme Court – who again found that a divorce would not be allowed on the allegations Mrs Owens had made. This case was one of the examples given in attempts to have changes made to divorce law currently going through the House of Commons.
How long does divorce take for unreasonable behaviour?
Until fairly recently the answer to this question would have been reasonably straight-forward and we would have said 6-9 months. However, it is now commonly more like 9-12 months because of overwhelming delays in the processing of all divorces by the Courts. Given the recent Owens v Owens case mentioned above it will also depend on whether the examples of unreasonable behaviour provided are accepted by the Judge.
Talk to one of the Woolley & Co family solicitors and they will be able to advise on how long things might take in your circumstances and which of the examples of unreasonable behaviour that you wish to use are likely to convince a judge.
Divorce & family lawyer, Northampton