We previously examined if it reasonable to question unreasonable behaviour in a divorce and further examined a recent ruling, of the court of appeal which refused to allow a woman to divorce her husband because of his ‘unreasonable behaviour’. No doubt this is a topical area of divorce law.
Going through a divorce is one of the biggest upheavals many of us will face in our lifetimes. As solicitors, we spend a lot of our time and focus on the financial aspect of the divorce process, because, as we have discussed in some of our previous posts, the financial settlement is often the element that takes the longest to resolve.
When a celebrity or high net worth individual divorce ‘battle’ is reported in the media, it is usually how their assets will be divided upon divorce which can make the divorce process seem so lengthy.
Before getting into discussions about who will get what, there is an important part of the early divorce process itself that needs to be dealt with.
If you want a divorce in England and Wales, you will need to show that your marriage has irretrievably broken down.
It is possible to do this by establishing one of five acts:
In order to cite adultery as grounds for divorce, you will need to establish that your spouse has had sex with a member of the opposite sex. However, it’s important to point out that if you discovered this more than 6 months previously and continued to live with your spouse as a couple during this time, you won’t be able to use adultery as a reason for divorce.
If you and your spouse have lived apart from each other for more than 2 years and you both agree to the divorce taking place, you can use this as the reason that you are divorcing.
If you and your spouse have been separated and lived apart from each other for more than 5 years, you can cite this as a reason for your divorce. Unlike the reason above (separation for more than 2 years), your spouse does not have to agree for you to use this reason.
In order to use desertion as grounds for your divorce, you will have to show that your husband or wife has left you for more than 2 years in the past 2.5 years. It’s vital that they left you without your agreement, without a good reason and that they did it so that they could end your relationship. Even if you have lived together with your spouse for up to 6 months in this time period, you could still use desertion as grounds for divorce.
Unreasonable behaviour is the most common ground for divorce in England and Wales. We will discuss why this is the case in more detail, below.
In order to use unreasonable behaviour as grounds for divorce, you will need to show that your spouse has behaved so badly that you can’t reasonably be expected to live with them any longer.
If you are the petitioner (the person who files the divorce petition) and are citing unreasonable behaviour as your grounds for divorce, you will need to give at least one example of this behaviour. How many examples you will need to provide depends upon various factors, so it’s a good idea to seek advice from a specialist solicitor.
However, there is nothing to tell you what is and what is not deemed as unreasonable behaviour.
In law, unreasonable behaviour is defined as:
“That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”
In essence, this means that the courts will look at whether you can reasonably be expected to still live with your spouse, despite their behaviour.
What is and what is not unreasonable behaviour can be very subjective. One person may find the way that their spouse is behaving is completely unacceptable, whereas this type of behaviour may not bother another person at all.
For example, a wife may say that her husband is spending too much time training for triathlons and other sporting events and consequentially is not spending enough time with her. Another person may see this as a benefit, as they have more time to take part in hobbies of their own.
Common examples of unreasonable behaviour include excessive drinking or gambling problems.
As most divorces are undefended, unreasonable behaviour rarely gets tested in the courts. However, one such (very unusual) case, involved a woman who was refused a divorce from her husband. She is now reportedly going to argue that she should not have to prove unreasonable behaviour and is heading to the Supreme Court to do this.
In their latest statistical bulletin regarding Divorces in England and Wales: 2016, the Office for National Statistics reported that unreasonable behaviour remained the most common grounds for opposite-sex couples divorcing.
The ONS said that 36% of all husbands and 51% of all wives petitioned for divorce on these grounds.
In its report, the ONS stated that: “Unreasonable behaviour has consistently been the most common ground for wives petitioning for divorce since the late 1970s; previous to this, the ground was named “cruelty”.”
Interestingly, unreasonable behaviour has only been the most common ground for husbands petitioning, since 2006. Prior to this, in the 1980s and 1990s, adultery was the most common ground for this group, whereas between 1999 – 2005, it was separation for more than 2 years (with consent)
One of the possible reasons that unreasonable behaviour is the most common ground for divorce, is that out of the four other grounds, three of these require a wait of a number of years before they can be used as grounds for divorce.
The only other ground left that doesn’t require a lengthy wait to divorce, is adultery. However, adultery can be more difficult to prove than unreasonable behaviour.
Also, although there is no such thing as a ‘no-fault’ divorce in England and Wales (more on this below), citing unreasonable behaviour as grounds for divorce, can often be less inflammatory than adultery and can sometimes help to keep the divorce process more amicable.
Additionally, contrary to popular belief, adultery in the eyes of the law involves sexual intercourse with someone of the opposite sex. Other kinds of sexual contact or a sexual relationship with someone of the same sex, cannot be used to establish adultery in a divorce petition.
Moreover, adultery can’t be given as a reason for divorce if you continued to live with your spouse as a couple for 6 months after you discovered what they had been doing.
All of this means that unreasonable behaviour has come to be used as the most common ground for divorce.
Back in 2015, the Independent published an article regarding research by family justice campaign group Resolution, which revealed that over 27% of couples who cited unreasonable behaviour “admitted their claims were not true, but were the easiest way of getting a divorce”.
Resolution’s chair at the time, Jo Edwards, reportedly said: “As our research findings show, the current system is causing couples to make false allegations in court in order to have their divorce finalised within a reasonable time. This charade needs to be ended.
“The alternative, living for two years as a separated couple before divorce proceedings can be started, is financially and emotionally untenable for many people.”
In England and Wales there is currently no such thing as a ‘no-fault’ divorce. It is unavoidable that this blame creates animosity between the divorcing couple.
Many argue that this system of blame is not only archaic but it is also damaging, as it causes resentment between the couple at a time when they need to work together to come to an agreement about what will happen to their children and their assets, when they go their separate ways.
Some say that unnecessary confrontation, which is fuelled by the need to point the finger of blame at someone for the breakdown of the relationship, has become commonplace. Many couples may like to end their marriage on better terms, to cite that neither of them were to blame and their marriage has simply has come to an end. However, under the current divorce system in England and Wales, this is simply not possible.
Although no-one is arguing that all divorces could ever be completely amicable, it does seem logical to assume that if there was a ‘no-fault’ divorce where no blame was necessary, things could be, more often than not, a little less hostile.
Indeed, many believe that until there is a ‘no-fault’ divorce where there is no need to apportion blame, the current system is going to continue to stoke the flames of confrontation between divorcing couples.
Commenting on the most recent official statistics from the ONS on the number of divorces in England and Wales, Resolution chair, Nigel Shepherd said:
“…there are tens of thousands of couples who are currently discouraged by the current system from taking a non-confrontational approach to divorce . For many separating couples, the need to apportion blame on the divorce petition can introduce unnecessary conflict, which adds to the stress and heartache for the couple themselves and, crucially, any children they may have.”
“For decades, ‘unreasonable behaviour’ has been the most common reason for divorce among opposite-sex couples, yet many are forced into playing this ‘blame game’ by our archaic divorce laws.”
“That’s why we have repeatedly called on government to legislate for no-fault divorce, and will continue to do so. This call is echoed by senior legal figures, such as Baroness Hale, the President of the Supreme Court, and Sir Paul Coleridge, the Chair of the Marriage Foundation.”
“In the face of such overwhelming support, and with the Supreme Court due next Spring to hear the appeal of Mrs Owens, whose divorce has been denied because of the current law, the government needs to listen and take action. It’s time to make no-fault the default.”
Until the law changes and unless you and your spouse are willing to wait 2 years in order to separate with consent (or use the other grounds that involve waiting), you will need to cite either unreasonable behaviour or adultery on your divorce petition.
It can sometimes be helpful to talk to your spouse about the grounds and examples that will be cited on the divorce petition.
A mediator, an independent third party, could help you with these discussions if you wish. Alternatively, you could seek advice from solicitors experienced in collaborative law. Collaborative law is a process involving four-way meetings with you, your spouse and your respective solicitors, which take place with the aim of coming to an agreement about various elements of your divorce. Through these mediums, you could work with your spouse to come to agreement about the reasons you will cite for divorce.
This could not only reduce the chance of your spouse disputing your claims but it may also make your relationship with your spouse more amicable, which could help when it comes to discussing and negotiating a financial settlement.
Whilst in England and Wales it usually makes no difference who files for the divorce and who is the respondent, this may not be the case if your divorce goes through in another jurisdiction. This means that it’s vital to get legal advice as soon as possible if you think there could be an international element to your divorce.
In order to get a divorce in England and Wales, you will need to show that your marriage has irretrievably broken down. It is possible to do this by establishing one of five facts or “grounds”. Unreasonable behaviour is one of the five possible grounds for divorce in England and Wales.
Out of all of the grounds for divorce, unreasonable behaviour is the one which is most commonly cited and as such, unreasonable behaviour examples are one of the issues we’re often asked about as specialist divorce solicitors.
To establish ‘unreasonable behaviour’, the petitioner (the person filing for the divorce) must show that their spouse has behaved in such a way that they cannot reasonably be expected to live with them anymore. They will need to give unreasonable behaviour examples in the divorce petition.
In essence, this means that the courts will look at whether you can reasonably be expected to still live with your spouse, despite their behaviour (as shown in your unreasonable behaviour examples).
There are many unreasonable behaviour examples that could be cited on a divorce petition. However, before we get into specific unreasonable behaviour examples, it’s important to note that there is no legal definition of exactly what does and what doesn’t constitute unreasonable behaviour. What’s more, as the majority of divorces are undefended, unreasonable behaviour examples are rarely tested in court.
How many unreasonable behaviour examples you will need to provide depends upon various factors, so it’s a good idea to seek advice from a specialist solicitor.
When it comes to divorce, unreasonable behaviour can be very subjective. What one person may see as unreasonable behaviour, may not bother another person at all. This means that there is a large range of unreasonable behaviour examples stated on divorce petitions.
For example, a wife may say that her husband is spending too much time training for triathlons and other sporting events and consequentially is not spending enough time with her. Another person may see this as a benefit, as they have more time to partake in hobbies of their own.
Common unreasonable behaviour examples include excessive drinking or gambling problems.
A divorce with unreasonable behaviour as the ground can take anything from 6 months to over a year, depending on the complexity of the case.
Often, it is the financial settlement (which is normally conducted in parallel with the divorce process), which takes the time, rather than the divorce for unreasonable behaviour itself.
As well as divorce for unreasonable behaviour, there are four other possible grounds for divorce:
• Adultery – you will need to establish that your spouse has had sex with a member of the opposite sex
• Separation for more than 2 years (with consent)
• Separation for 5 years (without consent)
Other than adultery, which can be more difficult to prove than unreasonable behaviour, the other grounds require a wait of a number of years before they can be used as grounds for divorce.
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