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.