Unreasonable behaviour as a ground of divorce (2)
As one of the reasons for divorce in UK divorce law unreasonable behaviour is by far the most common. The main reason for this is that it allows quick divorce. Three of the other grounds involve delays of between 2 and 5 years and the other, adultery, may not apply in every case. Divorce advice for men typically does involve explaining that you do not need wait for your wife to issue a divorce petition. Almost all spouses can in practice rely upon unreasonable behaviour as a ground for divorce.
Do bear in mind that divorce is private. Details of unreasonable behaviour in an undefended divorce petition are not divulged to the general public and so no-one but the parties themselves need ever know what was in the petition. Divorce proceedings and the reasons for the divorce are private. Indeed, it is quite common for the Respondent (the person who receives the 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 decree nisi. It is important to understand that the courts are not too demanding about this – particularly where both spouses want 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 explanations 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 divorce petition based on this incident if 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 she 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 issue a petition 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 issue a divorce petition 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.
2. Unreasonable behaviour