Terry & Co.

The Grounds for Divorce

 


 

 

 

 

 

"Unreasonable behaviour" is the most frequent ground for divorce in English divorce law and solicitors are frequently asked what constitutes "unreasonable behaviour". As you will already know, divorce in England & Wales is based on "irretrievable breakdown" of the marriage but this breakdown must be proved by evidence of one of five "facts":-

Adultery

Unreasonable behaviour

Desertion

Two years' separation with consent

Five years' separation without consent

 

Three of these grounds - desertion, two and five years' separation - involve considerable periods of delay before obtaining a divorce is possible at all. At least two years in the case of the first two and five years in the case of the last. Similarly, the parties cannot use adultery if there has been none. This means that "unreasonable behaviour" is the method of choice for most couples who want an "instant" divorce in cases where no adultery is involved.

 

People often approach a solicitor and say they want a divorce based on "irreconcilable differences". This happens so often that it is perfectly obvious that there are very many couples in this position. They are in an unhappy marriage and want to bring it to an end. This is perfectly natural and understandable. Nevertheless, it is not possible to obtain a divorce based on "irreconcilable differences". We think that is wrong but there it is - what the law demands is rather different.

 

To obtain a divorce on this ground English law insists that (a) that the marriage has broken down irretrievably and (b) that one of the parties to the marriage has behaved in such an unreasonable manner that the other finds it intolerable to live with him or her. Or, at least, that is what it requires if divorce is sought on the ground of unreasonable behaviour. Although this sounds rather a difficult thing to prove the reality of the matter is that the courts do not set a very demanding standard and in practice it is not normally too difficult to find some examples of "unreasonable behaviour" sufficient to satisfy a court that a marriage has broken down. The courts adopt a realistic attitude. They know that if one party to a marriage feels so strongly about it as to issue a divorce petition the marriage has irretrievably broken down so far as that person is concerned and it would be futile to pretend otherwise. The courts therefore adopt quite a relaxed attitude to the exact type of "unreasonable behaviour" which one has to allege in order to get the divorce. It is important to understand this.

 

It is a pity that couples are forced to do this because there are very many cases where the couple has simply drifted apart and they do not really hold any especial animosity towards one another. They do, nevertheless, want to obtain a divorce now rather than in two years time. They are therefore obliged to fall back on "unreasonable behaviour" if there has been no adultery. If they want an "instant" divorce one of them must divorce the other on the grounds of unreasonable behaviour. Really it does not matter who does it. People often think that if they do not "defend" a divorce based on unreasonable behaviour they will suffer in some way when it comes to the division of the matrimonial property and/or any questions relating to the children. In point of fact, the reason for the divorce has no impact whatever on these two latter issues in the overwhelming majority of cases and so there is no reason to be concerned about it. However, this is something which does need to be explained and it often has to be explained carefully.

 

The other thing to bear in mind is that divorce is private. Details of unreasonable behaviour in an undefended divorce petition are not divulged to the general public and so in general no-one but the parties themselves need ever know what was in the petition. Indeed, it is quite common for the Respondent (the person who receives the divorce petition as opposed to the person who issues it) to agree not to defend the divorce on condition that no use is made of the lack of defence to allegations of unreasonable behaviour in any other proceedings (such, for instance, as those relating to children or the matrimonial property).

 

The Respondent might also want to make it a condition of not defending that there is some agreement as to who bears the costs of the divorce and the reasons for this are explained on the relevant page about divorce costs.

Very often clients ask what constitutes "unreasonable behaviour". Obviously, it covers extreme types of behaviour such as habitual drunkenness or violence but it is by no means necessary to allege anything near as serious in a divorce petition. In fact, because no-one likes receiving a petition based on their unreasonable behaviour, it is very often sensible to keep the allegations to the bare minimum that will suffice to obtain the divorce even in circumstances where very much more could be added. A few paragraphs are normally sufficient and in a case where a marriage has in fact irretrievably broken down it is unusual not to be able to find some instances of unreasonable behaviour which will suffice for the purposes of obtaining a divorce. It is important to understand that the courts are not too demanding about this - particularly where the parties are agreed on a divorce.

 

Naturally, if the parties are not agreed on divorce the requirements of the courts are stricter because the allegations will be subject to scrutiny but in the overwhelming majority of cases the allegations are unchallenged because very few divorces are ever defended in fact.

 

Something which it important to bear in mind is that there are time limits involved. In general one must present a divorce petition within no more than six months from the last incident of unreasonable behaviour relied upon if the parties are continuing to live together. There are two reasons for this. Firstly, it is perfectly easy to accept unreasonable behaviour and many people do. For instance, if both parties are heavy drinkers and have been so throughout their married lives it would lack any credibility if one of them suddenly decided to petition for divorce based on the other's heavy drinking. The second reason is rather more important because it does sometimes catch people out. It is that it is a rule of law.

 

Perhaps this is best explained by example. Suppose a husband hits his wife and as a result the wife decides that the marriage is over but does nothing about it. She continues to live with her husband but there is no further incident of violence. At any time within six months from being hit by her husband the wife could present a petition for divorce based on this unreasonable behaviour if she wished but once they have lived together for more than six months afterwards she can no longer rely on this incident (although he might be able to refer to it as part of a pattern of unreasonable behaviour).

 

However, this rule only applies if the parties continue to live together after the latest incident of unreasonable behaviour. If the wife in the above example had immediately left her husband after being hit and gone to live with her parents she could still petition for divorce based on her husband's unreasonable behaviour in hitting her even though more than six months have passed since the incident. Even in this case, though, one should not wait too long. There gets a point where one simply cannot credibly complain about the behaviour of one's spouse if he/she is not actually there to be unreasonable. If it looks as though six months since the last incident of unreasonable behaviour occurred will soon elapse it is normally sensible to consider whether one should petition for divorce rather than wait any longer.

 

If one leaves it too long the parties may then have to wait two years from the date of the separation before one of them can petition for divorce based on two years' separation. And this is dependent upon the other's consent. If that consent is not forthcoming the person who wants the divorce may have to wait until the separation has lasted five years unless in the meantime his/her spouse relents. This can be extremely awkward if the reason for wanting the divorce is to remarry so it is worth bearing these formal and practical time limits in mind. They do sometimes catch people out and to our mind they are defects in the law but they are defects which can have very inconvenient consequences if one of the parties wishes, for example, to remarry but the opportunity for relying on unreasonable behaviour has passed.

 

People often think they can get a divorce based simply upon "irreconcilable differences". The truth of the matter is that this usually means "unreasonable behaviour" and in order to obtain a divorce on the ground of unreasonable behaviour one has to comply with the rules applicable to that particular ground including any time limits.

 

Please contact David Terry at David_Terry@dterry.demon.co.uk if you need specific advice. There are many misconceptions about "unreasonable behaviour" in English divorce law and each case is quite different.