Divorce and unreasonable behaviour
The current law
As it stands currently, there is only one ground for divorce in England and Wales, which is the “irretrievable breakdown of the marriage”. The party who is filing for divorce (the Petitioner) needs to state on what basis the marriage has broken down, by citing one of the following five facts:
- Unreasonable behaviour
- Two years’ separation with the other party’s consent
- Five years’ separation (no consent required)
Unless the petitioning party is able to rely upon adultery, desertion or separation, they will need to demonstrate that the other party is to blame for the breakdown of the marriage, on the basis that their behaviour has been unreasonable. It can sometimes be difficult to find examples of unreasonable behaviour on an objective basis, as the question of what constitutes “unreasonable” can be subjective. This is why the petitioning party must explain what effect the behaviour has had on them personally (whether that be psychologically, emotionally or physically), rather than simply listing the unreasonable behaviour. The current law presents a further hindrance to the petitioner insofar as a petition must be presented within six months from the date of the last incident of unreasonable behaviour.
This issue surrounding a petitioner struggling to demonstrate unreasonable behaviour is highlighted in the case of Owens v Owens. Mrs Owens cited Mr Owens’ unreasonable behaviour as the reason for the breakdown of their marriage and Mr Owens contested the application. The Judge at first instance held that Mrs Owens had exaggerated the seriousness of her allegations against her husband and found that there was no unreasonable behaviour that Mrs Owens could rely upon. Mrs Owens appealed the decision and the matter was subsequently put before the Court of Appeal. Unfortunately for Mrs Owens, the Court of Appeal agreed with the Judge at first instant. After Mrs Owens appealed the decision for a second time, the matter was heard at the Supreme Court where the Judges took the view that it is their role to apply the facts to the law laid down by Parliament, and, in the circumstances, they were not satisfied that that Mr Owen’s behaviour met the threshold for unreasonable behaviour. Notwithstanding the Judges’ decision, the Supreme Court acknowledged that the current law had not been adapted to reflect modern day relationships.
Historically, family law practitioners have argued that the blame-based system is both outdated and unsatisfactory as it can lead to animosity between the parties which, in turn, can be detrimental when negotiating financial settlements and children arrangements. Even in situations where both spouses agree that the marriage has come to an end, through no fault of either party, one party will need to be held accountable for the divorce petition to proceed.