Unreasonable behaviour is one of the five facts you could use to prove that element of irretrievable breakdown.
You can apply for a divorce or civil partnership dissolution if: -
1. You have been married or in a civil partnership for at least a year; and
2. You are of the view that the marriage or civil partnership has irretrievably broken down.
It has been widely thought that the legal test of what is ‘unreasonable behaviour’ was relatively low, but a recent case in the news (involving Mr and Mrs Owens) highlights that there is nevertheless a threshold that the person asking for the Divorce must overcome.
In this case, the Wife was refused a divorce after a Judge ruled that the claims were examples of “minor altercations of a kind to be expected in a marriage” and suggested that she had been “more sensitive than most wives.”
So, what constitutes Unreasonable Behaviour?
To establish this fact, you must show that your spouse has behaved in such a way that you cannot reasonably be expected to continue to live with him/her.
The test the Court has to apply is whether a right thinking person would conclude that their spouse has behaved in such a way that it cannot be reasonably expected to live with him/her, taking into account the parties circumstances. It is therefore both a subjective and an objective assessment.
Typical examples of unreasonable behaviour include but are not limited to: -
• Lack of emotional and financial support.
• Lack of love and affection
• Physical violence
• Verbal abuse
• Drinking to excess or taking drugs
Ultimately it comes down to your individual thoughts and feelings; what you may find to be ‘unreasonable’ may be acceptable to another.
Doesn’t this make it a blame game?
Initiating divorce proceedings on the basis of unreasonable behaviour inevitably requires one spouse to ‘point the finger of blame’ at the other which could give rise to conflict from the outset of the divorce process, where tensions are already running high.
It is therefore important to seek specialist advice on how the application should be drafted to ensure conflict is minimised wherever possible.
Is there anything we can do instead?
If you have separated, it is not necessary to end your marriage or civil partnership straightaway. You and your spouse may want to wait until you have separated for either a period of two years or five years before applying for divorce or dissolution rather than unreasonable behaviour.
One option is to enter into a Separation Agreement which sets out the agreed living and financial arrangements for the time between your separation and a future divorce or dissolution.
To discuss these matters further, don’t hesitate to contact us for confidential, free first legal advice.