There are surprisingly few divorce trials. Mostly divorces go through the court by agreement, one way or another. Therefore, when a divorce goes to an appeal, all divorce lawyers, me amongst them, take note. That happened recently: the appeal court looked at how unreasonable is ‘unreasonable behaviour’.
The case is also unusual because the divorce was refused.
To divorce, you need to show one of five possible facts:
- One party has deserted the other and gone from the marriage for two years.
- You have lived apart for two years and you both agree to separate and divorce.
- You have lived apart for five years (you need not have your ex’s agreement).
- One party’s behaviour has an effect on the other which means it is unreasonable for the person starting the divorce to live with the other. This is known as an unreasonable behaviour petition.
What is considered unreasonable behaviour has changed considerably in the 40 or so years since the Act came into force in 1973. Ideas such as marriage as a partnership of equals and equality between the sexes must have played a part. In this recent case the wife found her husband authoritarian and demeaning in his manner to her. She gave numerous examples of fairly small incidents which had an impactful cumulative effect. She argued that no one would expect her to live with her husband because of this.
It is very unusual not to succeed with a divorce based on unreasonable behaviour. This is probably because they are rarely challenged. In this case the lawyers failed to call witnesses to corroborate the impact the wife said this behaviour had on her. The Court therefore looked at a few individual incidents of the behaviour, rather than the weight of it being repeated over time. The divorce was rejected and the parties therefore remain married. Interestingly, this tendency not to see the impact of behaviour overall was referred to in an inspection report on the police. It found that the police tended to view harassment incidents as single events. The patterns of behaviour were not properly understood, thus the severity was overlooked.
With the refusal of the divorce, it means that the wife will have to use the ground of 5 years separation. Separating in February 2015 means she will not be able to start a divorce till 2020. One impact of not being able to divorce is that spouses can’t use the divorce Courts to sort out finances. They have to rely on other law which is patchwork at best, and nowhere near as comprehensive.
Many divorce lawyers argue for “no fault” divorces but one effect of this case will be to encourage far harsher drafting of the examples of unreasonable behaviour in case the court finds it is not ‘unreasonable’ enough.
Specialist Family Lawyer and Mediator
 Mr and Mrs Owens
 Living in Fear, the police and CPS response to harassment and stalking