What exactly is ‘unreasonable behaviour’?

Divorce|November 15th 2016

There has been much talk recently of the introduction of no-fault divorce. I have written about it here myself many times, and only last week I wrote about a recent case that I felt was an advertisement for the benefits of no-fault divorce.

However, for the time being, we are stuck with a fault-based system, at least unless you have been separated from your spouse for at least two years. And for most people who have not been separated for two years that means showing that your spouse has behaved unreasonably, unless you are able to prove that they have committed adultery – and that usually requires an admission of adultery from your spouse. Unreasonable behaviour is the most common basis for divorce.

Before we look at what exactly unreasonable behaviour is, we need to look at what the law says.

Unreasonable behaviour is often referred to as one of the ‘grounds for divorce’. Technically, that is wrong. There is only one ground for divorce, and that is that the marriage has irretrievably broken down. Irretrievable breakdown must be shown by the petitioner (i.e. the person issuing the divorce petition) proving one of five things:

  • That the respondent (i.e. the other party) has committed adultery and the petitioner finds it intolerable to live with the respondent; or
  • That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or
  • That the respondent has deserted the petitioner for a continuous period of two years or more; or
  • That the petitioner and the respondent have lived apart for a continuous period of at least two years and the respondent consents to the divorce; or
  • That the petitioner and the respondent have lived apart for a continuous period of at least five years.

Note that the behaviour must be such that the petitioner cannot reasonably be expected to live with the respondent. The behaviour must therefore be something more than trivial, and it must affect this petitioner, a point that I will return to in just a moment.

Okay, so what exactly is unreasonable behaviour?

The test for unreasonable behaviour was established by Mr Justice Dunn in the 1974 case Livingstone-Stallard v Livingstone-Stallard:

“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?”

So the behaviour of the respondent must affect this petitioner, irrespective of whether it may affect anyone else. The wife’s allegations in Livingstone-Stallard are instructive, and give some examples of fairly typical unreasonable behaviour allegations. They included that the husband criticised her behaviour, her way of life, her friends, her cooking and even her dancing; that he complained of her leaving her underclothes soaking overnight in the sink, even though he did the same himself; that he called her names; that he became angry when she offered sherry to a photographer who visited the house while he was out and that he forced her out of the house, throwing water over her when she attempted to get back in. Unsurprisingly, she was granted her divorce on the basis of the husband’s unreasonable behaviour.

In short, almost any behaviour that the petitioner finds to be unacceptable can amount to unreasonable behaviour, so long as it is not entirely trivial. If the behaviour complained of is of a serious nature, then only one allegation may be enough. On the other hand, if the behaviour is not particularly serious then the court is likely to require more than one allegation, in order to be satisfied that the marriage has irretrievably broken down.

Note that if the parties have lived together for more than six months since the date of the last incident of unreasonable behaviour then the court may consider that the behaviour was not such that the petitioner cannot reasonably be expected to live with the respondent. Accordingly, if the parties are still living together then at least one incident should have taken place in the six months prior to the presentation of the divorce petition, as if it has not then the court may refuse the divorce.

Where does all of this leave us? Well, some may say it leaves us in the position where pretty well any allegations can amount to unreasonable behaviour, thereby putting the law into disrepute. On the other hand, some say that the necessity to make allegations against the other party and place the blame for the breakdown of the marriage entirely upon them introduces unnecessary animosity, or additional animosity, thereby making it less likely that the parties will be able to agree other matters, such as arrangements for any dependent children and a financial settlement. Both of these criticisms of the system could of course be resolved by the introduction of no-fault divorce, although the latter could be alleviated by trying to ‘agree’ the allegations with the respondent before the petition is issued.

Whatever, I think it is a truism to say that most people should not have any great difficulty in putting together allegations of unreasonable behaviour. It may sound cynical, but in virtually every marriage incidents occur that, if taken together, can amount to unreasonable behaviour. That may not be how Parliament intended the law to operate, but that is certainly the way it works.

Image by Thomas Angermann via Flickr under a Creative Commons licence

Author: Stowe Family Law

Comments(6)

  1. Andy says:

    It’s not unreasonable behaviour that’s is a cause more like domestic violence that is the cause and such actions conducted by either party in there quest to destroy the other party either by physical,mental and childish actions that one party will break and lash out….
    Typically the courts see all the types but in such cases the mother uses the system to benefit the accusation of what she wants to gain.

    So the three causes are used as available. Most cases are adultery as this is the easiest option to go for as proving unreasonable behaviour are difficult…desertion as stated…
    The effect of this is the easiest option to go for and set the wheel in motion to end the marriage as soon as possible..with high costs…and that is for the start.

    • Dr Grumpy says:

      I only discovered my ex wife’s infidelity with another woman several years after the absolute was granted. And we had been married for only 3 years before she did this!

  2. Dr Grumpy says:

    Of course allegations of unreasonable behaviour are just that, allegations. No witnesses required to support the petitioners claim. And lets be completely honest mud sticks!
    Allegations of domestic violence made in a divorce petition need no supporting evidence and it would appear that the courts require none.
    As a result of this I have been branded as man who inflicted DV on his ex wife. My friends and those close to me know that I would not behave in that way. As for unreasonable behaviour the petitioner is often the guilty party and uses the allegation in the petition to cover up their own actions during the marriage!

  3. Royce says:

    Reading the blog entry, I was thinking the very same thing as “Dr Grumpy” wrote, above:

    “As for unreasonable behaviour, the petitioner is often the guilty party [but] uses the [scurrilous] allegation in the petition to cover up their own [despicable] actions during the marriage!”

    Yes, this was precisely the situation in my case — my ex claimed “unreasonable behaviour”. Specifically that I tried to “control” her, when it was SHE who quite clearly was being unfaithful to me! So, my suspicions and complaints (because, with all her excuses, I could never be quite sure — till afterwards) were me “controlling” her — when obviously NO man would just sit there and eat sh+t!

    It is disgusting that this can be asserted — and no explanation ever gets a chance to be heard. Not that it makes a lot of difference, as you are still going to get a divorce — and the court isn’t interested, anyway

    The reality of course was that SHE was behaving unreasonably. And the only way to combat that (FWIW) is to get your crack in first — and start the divorce before SHE does. At least the inherent bias towards women (especially with a female judge) might be overcome to some extent — and perhaps not QUITE so much will be awarded to the unfaithful wife.

    Who, if she precipitated the divorce by her infidelity, clearly doesn’t deserve a penny — at least, in most fair-minded people’s minds.

    Seems to me that, “In order to be satisfied that the marriage has irretrievably broken down” the judge should consider just as much that the party making the allegation may be the GUILTY party — because they could well be LYING. What does it matter? See above….

  4. Reddit Seenit Dunit says:

    As Andy indicated above, some wives “just use the system to benefit the accusation of what she wants to gain….” — ie. they just play the system for their advantage. Certainly my ex did.

    Because, as I realised towards the end, it was NOT a simple, “honest” marriage, which “sadly broke down”. It was a DIShonest marriage that she craftily ENGINEERED to break down. It had, to coin a phrase that was current a few years ago, “built-in obsolescence” — it was MADE (by her) to break down in as short a time as she thought she could get away with, consistent with obtaining a big handout from the judge.

    Seeing as it is inevitably the woman who gets the “settlement”, and the man who has to pay, these sort of cynical women are clearly just playing the system — and there has been little or no attempt to STOP this practice. Has no one in the legal profession or legislature ever heard of the word, “scammer”?

    They most certainly haven — and as long as they allow this situation to continue, they are AIDING and ABETTING them.

  5. Pete says:

    “That may not be how Parliament intended the law to operate, ”
    Is it not down to the Judges to interpret the law John ?? Funny how in the example above its always the man that is to blame , yet another shining display of the legal professions bias.
    Even my own solicitor had me give in to the accusation of unreasonable behaviour saying it didn’t mean anything. but I must say I was guilty of working to keep a roof over our heads, paying for her holidays, keeping the kids in food and clothes while she collected loyalty stickers in the local coffee shops.
    Its all very well lawyers protesting for a no fault divorce but this is a mess of there own making and they should take a long look in the mirror before pointing the finger of blame at anyone !

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