How to word unreasonable behaviour allegations
There is only one ground for divorce – that your marriage has irretrievably broken down – but there are currently five facts you can rely upon as evidence.
By far, the most common is that your spouse has behaved in such a way that you can no longer reasonably be expected to live with them. This is known as “unreasonable behaviour”.
Using unreasonable behaviour as a reason for divorce
One of the first steps in the divorce process is to list your spouse’s behaviour which you allege is unreasonable and wish to use to support your divorce application.
This can be a difficult task for any number of reasons. It may be that you remain on good terms with your spouse and so do not wish to increase tensions by making inflammatory remarks; perhaps it is unpleasant to have to relive or recount some of the challenging times during your marriage, or maybe there are so many examples that you can’t narrow it down to just a few.
Case law has suggested that the appropriate test for whether the behaviour is such that it is unreasonable to continue living with a spouse is whether a “right-thinking person” would come to the same conclusion.
Whilst there is an element of objectivity to whether the behaviour is (or isn’t) reasonable, the court should consider this in the context of the specific couple in question; for example, it is reasonable for this spouse to continue to live with the other spouse?
This explanation is important because it helps shape the wording that can be used for the allegations of unreasonable behaviour in the divorce petition.
How to word unreasonable behaviour allegations
There are several “top tips” for how to word unreasonable behaviour allegations, which I believe are often relevant, appropriate and helpful:
Whilst you can include as many allegations of unreasonable behaviour as you want, my experience is that 3 or 4 is likely to be sufficient. This will vary, depending on the severity of the allegations.
The allegations do not need to be so specific that you include times, dates and a stage by stage account as to what happened. My experience is that including such specific examples can often be inflammatory. For example, I’d suggest that this wording:
“At 3.34pm on 27 January 2021, I was walking to Tesco so that I could buy some eggs when my spouse shouted at me from across the road and called me a b***h.”
Be replaced with:
My spouse has been verbally abusive towards me.
I’d suggest that each allegation includes a brief reference to how it made you feel because this shows the impact it had on you and why you believe it is unreasonable to expect you to continue living with them.
My spouse has been verbally abusive towards me, which makes me feel upset and unloved.
Although it may be tempting (because you might think it likely to cause less upset to your spouse), try not to include any reference to your unreasonable behaviour and do not try to justify your spouse’s actions – doing so will only lead to the judge questioning whether you believe that their behaviour has been unreasonable.
Try to ensure that the behaviour you are including is relatively recent or ongoing. If you start relying on your spouse’s actions from several years ago, then the judge will be forced to consider whether this is sufficient to progress the divorce. They might question whether you believe those actions to have been unreasonable, given your relationship continued for many years after.
If you want to make the divorce as amicable and collaborative as possible, it is worthwhile discussing the allegations with your spouse.
They may provide you with the wording that they would find acceptable, or you might consider sending them the draft wording to comment on before it is sent to the court and forms part of the formal paperwork.
These suggestions are only really relevant to those divorces which are unlikely to be defended. If you suspect your spouse may argue that you are not entitled to a divorce, you should seek specialist advice as the above will not be appropriate.
There are no guarantees, but it is thought that a new “no-fault” divorce law might be implemented in the autumn of 2021, so if your separation is amicable, is it worth waiting for the new law to come into effect?
Being able to avoid the need to attribute blame for the breakdown of your marriage could reduce any animosity and make it more likely that arrangements for any dependent children and finances will be sorted out amicably. However, this needs to be balanced with the need to wait for the law to come into effect.
What you decide depends on your situation, but it would be worth reading more details about no-fault divorce to see if this option might be appropriate for you.
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