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Grounds for Divorce - Part Two, 'Unreasonable Behaviour'

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Ministers plan divorce law overhaul

In my last column, I discussed the legal matters surrounding adultery and how it forms a significant part of the five so-called grounds for divorce. I also showed how complex a simple term like adultery can be; why it doesn’t always meet our everyday understanding of the word and why it can only be used under very specific circumstances.

So what about unreasonable behaviour? This is by far the most commonly used ground for divorce as its definition is quite open-ended. The Matrimonial Causes Act 1973 explains that a person is able to claim unreasonable behaviour by the spouse when ‘the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent’.

But what actually constitutes unreasonable behaviour? Ultimately, this is down to the individual.  It is not what I or any other solicitor, or family member or friend considers to be unreasonable, it is simply about your interpretation, your boundaries and standards. As such, it is a very subjective test. One person’s unreasonable behaviour may be perfectly acceptable to another.

There are many examples of unreasonable behaviour, which can range from the serious to a culmination of less serious incidents or behavioural patterns. Examples can include a lack of emotional support, choosing to socialise separately, a lack of support around the house or with the children, or a disinterest in your career. 

In cases where the respondent does not wish to contest the petition for unreasonable behaviour, it will not usually be necessary to prove unreasonable behaviour has taken place. However, in cases where the other party wishes to defend the divorce, it is up to the petitioner to provide evidence of the alleged behaviour. A family law solicitor will be able to assist you in providing this evidence and advise if this is sufficient to convince a judge that unreasonable behaviour has taken place.

A very common misconception is that there has to be consent to the divorce from both parties, or an admission of the behaviour by the respondent – there doesn’t. I have had experience of clients who needlessly waited many months and sometimes years to end a marriage because their spouse told them that they would not ‘sign the papers’.  That does not matter.  A divorce can progress even if the petition is ignored.

As with the ground of adultery, there is a time limit associated with unreasonable behaviour.  The petitioner and the respondent must not have lived together for more than six months following the date of the last incident of behaviour quoted in the petition. Living together for longer than this will cause problems with using this ground.

We discovered last time that the legal concept of adultery has a particular quirk when applied to same sex couples. Under UK law, a person cannot claim adultery if their spouse has engaged in a sexual act with someone who is not of the opposite sex. This prevents that person from petitioning for divorce on grounds of adultery. However, the fact that a partner has had, or is having an affair, can be used as evidence of unreasonable behaviour.

Similarly, those who cannot extract an admission of adultery can choose unreasonable behaviour instead. For example, your partner meeting someone else secretly or spending time with someone else would be considered unreasonable in a marriage, even if you could not prove a sexual act. A court would refer to this as an ‘inappropriate relationship’ and it is usually considered sufficient grounds for divorce.

Given the relative flexibility of the term, it is easy to see why unreasonable behaviour accounts for the vast majority of grounds for divorce.

One word of caution, however. There is no obligation to divorce just because you have the ground to do so. Legally ending a relationship is a hugely personal decision and the real question is whether or not you believe your relationship has broken down, with no prospect of reconciliation.  In my experience, many couples recover from what has happened. Some manage to work through the issues themselves and others seek professional support.

Should you believe that the situation is truly beyond repair, it is important to remember the role of a family law solicitor. We cannot and will not tell you to carry out any particular course of action, but we are able to advise you of your options, the strength of your case and how we can help.