Unreasonable behaviour as a ground of divorce

As one of the reasons for divorce unreasonable behaviour is the most common ground for divorce in UK 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”:-

(1) Adultery
(2) Unreasonable behaviour
(3) Desertion
(4) Two years’ separation with consent
(5) 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 rely upon adultery in a divorce petition if there has been none. This means in a divorce unreasonable behaviour is the method of choice for most couples who want an “instant” divorce in cases where no adultery is involved.

In the divorce process 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 UK divorce law demands is rather different. There are recurrent proposals to change the present requirements.

To obtain a divorce on the ground of unreasonable behaviour 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 make allegations of unreasonable behaviour 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.

Do please continue if you want to know more about unreasonable behaviour as one of the grounds for divorce.

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