Unreasonable behaviour is one of the five facts you can use to prove that your marriage has irretrievably broken down so that you can obtain a divorce. (You can read more about the other facts here).
Of the 90,871 divorces in England Wales in 2018, the most common reason for divorce was unreasonable behaviour. Over 50% of women and 36% of men in opposite-sex marriages, cited this as the grounds for divorce in their petition.
In the current absence of a no-fault divorce system* in England and Wales, using unreasonable behaviour can be a quicker way to end your marriage (as opposed to waiting for the minimum period of 2-years separation).
What is unreasonable behaviour?
In short, almost any behaviour that the petitioner (the person issuing the divorce petition) finds to be unacceptable and cannot be reasonably expected to live with can amount to unreasonable behaviour.
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.
What are examples of unreasonable behaviour?
There is no definitive list of unreasonable behaviours used in a divorce petition.
Sometimes a couple has simply grown apart and struggle to find any challenging behaviours. At other times, we have worked with clients petitioning due to some unusual behaviours including spying, going vegan, lack of DIY skills (you can read more here).
Some of the most common reasons are listed below.
- Abusive behaviour, physical, verbal or mental
- Debt / financial recklessness
- Inappropriate relationship or suspicious of affairs (To cite adultery your spouse has to admit that they have had sex with a member of the opposite sex, or you would have to prove this)
- Unreasonable sexual demands
- Family disputes
- Spending too much time at work/socialising/exercising
- Refuses to discuss relationship issues
How should you detail unreasonable behaviour?
Allegations of unreasonable behaviour must be sufficient to satisfy a judge to accept them and grant the divorce. However, it is considered good practice to include only as much as is needed to satisfy the test, rather than to include significant detail which may inflame the situation.
You will need to provide specific examples about what, when and how it made you feel.
Mistakes made at this stage can become time-consuming, especially if the petition is rejected and needs to be resubmitted, particularly given the delays that the courts are experiencing at the present time.
Specialist legal advice from a divorce lawyer will ensure that the allegations are worded correctly for the courts and that the petition is unlikely to be rejected.
It is also worth remembering that the Respondent (the person receiving the divorce petition) will read the reasons and this may add to or cause more distress.
The best practice is to send to the Respondent the allegations of unreasonable behaviour reasons prior to filing the petition at court, to see whether the content can be agreed, however, this is not always a viable option.
Unlike adultery, the Respondent does not have to admit the behaviour or accept that it is unreasonable, but can simply choose not to defend the petition. A solicitor or mediator can help both parties decide what to include which can help to start the process in a more constructive manner.
What are the timescales for using unreasonable behaviour in a divorce?
It is surprising to many but there can be time limits to using unreasonable behaviour in a divorce.
You can only file for a divorce petition based on the grounds of unreasonable behaviour after a minimum of 12 months of marriage.
If you continue to live together after the last incident of behaviour or after the petition has been issued and for more than 6 months, the Court may ask for some more details about your living arrangements when you apply for decree nisi, as the Judge will want to be satisfied that the marriage has irretrievably broken down.
Does unreasonable behaviour affect the final settlement?
Some people believe that behaviours will affect how the financial assets of the marriage will be split, however, this is rarely the case. Generally, grounds for divorce are considered to be irrelevant when it comes to financial settlements.
The need for a no-fault divorce system*
The current use of unreasonable behaviour in divorce petitions has been questioned. Most family lawyers feel that the law needs to move on and that by forcing allegations and ascribing blame for the breakdown of the marriage introduces unnecessary or additional animosity. This makes it less likely that the parties will be able to agree on other arrangements for any dependent children and a financial settlement.
With the likely introduction of no-fault divorce (part of the Divorce, Dissolution and Separation 2020 currently in parliament – you can track its progress here) hopefully we will see an end to the ‘blame’ game and help couples to divorce more amicably without accusations.
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The article was published earlier and has since been updated.