News and Events

What Is "Unreasonable Behaviour" And A "No Fault Divorce?

How can you prove “unreasonable behaviour” and is there a “no fault divorce” system in England and Wales? TBI Legal Executive Wendy Beacom explains more in regards to a recent case….

The Supreme Court heard the case of Mrs Tini Owens and Mr Hugh Owens on 25 July 2018 when the court was asked to determine whether or not Mrs Owens was entitled to a divorce based on her husband’s 'unreasonable behaviour'. Mr Owens sought to defend Mrs Owens’ petition. The court has determined that she is not and must remain married to Mr Owens until at least 2020 after they have been separated in excess of five years.

The current law, which has been in place since 1973, states that there is only one ground for divorce and that the marriage has irretrievably broken down. However, a person petitioning for divorce (“the petitioner”) must rely on a fact to support this. There are five facts being adultery, “unreasonable behaviour”, desertion, two years separation with the consent of the other party (“respondent”) and five years separation.

The true definition of unreasonable behaviour is “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent” as opposed to a belief that it is only that “the petitioner cannot reasonably be expected to live with the respondent”.

The court has determined that Mrs Owens has not been able to show that Mr Owens’ behaviour has been such that she “cannot reasonably be expected to live with the respondent”. The particulars of behaviour she had relied upon were in parts stated to be “flimsy” and that she had “exaggerated their context and seriousness”. 

The difficulty with these comments in the context of advising clients is that often parties wish to formalise their separation and issue divorce proceedings, but do not want to “blame” the respondent. If the other four facts are not appropriate to their circumstances, then the only fact open to the petitioner would be “behaviour”.

This can often create conflict between the parties from the outset where there does not need to be. This then impacts upon resolution of financial issues and child arrangements. There is a preference to use less harsh particulars of behaviour to try avoid the potential for conflict. Indeed, the Law Society’s Family Law Protocol suggests that in cases where behaviour is relied upon a petitioner should be encouraged to use “brief particulars to satisfy the court”. With the issues experienced in the Owens’ case, harsher particulars will be used (which does correctly apply the law) but I anticipate experiencing an increase in cases becoming needlessly hostile from the outset.

Resolution, which is an organisation made up of family law specialists, was involved in the Owens’ case to intervene regarding “no fault” divorce proceedings, but the Supreme Court states in its judgment in the Owens’ case that such change can only come about from Government amending legislation.

Opponents to a no fault divorce system may argue that it makes separating difficult. In my experience, this is far from the truth. For many, the actual decision to separate can be a hugely emotional time for parties regardless and certainly not taken lightly. Parties will separate where the marriage is not working for many reasons but most would prefer not to then have a long drawn-out separation period or made to feel they are entering into battle with their ex. 

Furthermore, with petitions where the petitioner is to rely on a period of separation, it means that whilst some arrangements are resolved at the start of the separation, the divorce proceedings have to be issued later after the requisite period of separation so it means the parties not tying up all matters at the same time.

Family law is about resolving issues in the least acrimonious way, particularly where children are involved. If not having to “blame” their partner in order to formalise their arrangements at an earlier stage in the separation is available, I believe that this would sit much more easily on many parties - and certainly Judges who have to apply the law - in these cases. Contested divorce proceedings are generally quite rare but, owing to the outcome of the Owens’ case, it may be that we see an increase following a reliance upon more aggressive particulars having to be used. This can only be a step back to helping parties, not moving forward to finding early and less hostile resolution to arrangements.

Chartered Legal Executive Wendy Beacom specialises in resolving financial issues arising from divorce proceedings and the breakdown of a relationship. If you have a family matter to solve, contact Tilly Bailey & Irvine on 0333 444 4422 for further advice.