Is it really reasonable to question unreasonable behaviour in a divorce?

Back in February of this year, we heard about a woman called Tini Owens who, after being refused a divorce by the family courts, despite reportedly saying she was “desperately unhappy” in her marriage, was taking her case to the Court of Appeal. When considering divorce, is it really reasonable to question unreasonable behaviour?

At the end of March, the Court of Appeal refused the appeal and ruled that the divorce would not be granted, as Mrs Owens had not proven her “unreasonable behaviour” allegations.

First, it’s important to note, that most divorces in England and Wales are uncontested, that is to say that most divorces go through without either spouse defending the divorce.

This is a very unusual case and what makes it stand out even more, is the fact that a court dismissed a petition to divorce, which, to some, seems very archaic and out of place in the 21st century.

Grounds for divorce

The petitioner (the person who starts the divorce proceedings) has to prove that the marriage has irretrievably broken down.

In order to do this, they must establish (prove) one of these five facts:

• Adultery
• Unreasonable behaviour
• Desertion
• 2 years separation with consent
• 5 years separation (no consent required)

What is unreasonable behaviour?

The law defines unreasonable behaviour as:

“That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

Courts will look at whether the petitioner can reasonably be expected to live with the respondent. In order to do this, they will look at the conduct of the respondent and the effect that this conduct is having on the petitioner, together with the history of the marriage.

If a judge decides that the petitioner cannot reasonably be expected to live with their spouse, the divorce should be granted, unless there is any evidence to the contrary that the marriage hasn’t actually irretrievably broken down.

What many people cite on their divorce petitions is very subjective, as what one person may find unreasonable, another may not. One wife may cite that her husband spends every evening fishing, while another may well see this as a benefit!

In reality, this rarely gets tested as most divorces are undefended.

Time for no-fault divorce?

This case has again brought the debate surrounding no-fault divorce firmly into the spotlight, with many arguing that the UK divorce system, where one party has to blame another in order to get a divorce, is outdated and indeed can result in a great deal more hurt than necessary.

For a woman to spend a large amount of time and money to take her case to the Court of Appeal, would surely seem to suggest that the marriage is well and truly over and to make her stay in this marriage, until she can establish another ‘fact’ (most likely 5 years separation), seems unfair and inhumane. Mrs Owens could appeal to the UK Supreme Court but whether this would result in a different outcome (or indeed whether she will do so) is uncertain.

Hopefully, with the attention this case has drawn, reform is on the horizon. We keep our fingers crossed.

For more information on this subject please visit our Legal Library.

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