So what is ‘unreasonable behaviour’?
There is no such thing as no fault divorce. This is because the 1973 Act of Parliament (now 44 years old and many say painfully out of date) sets out the grounds for divorce and provides a limited framework for a divorce petition to be acceptable to the court and for the parties to ultimately divorce. There are other grounds for divorce, but very often these are not available to the parties. It is for this reason that a divorce based upon ‘unreasonable behaviour’ is so very often the only way forward.
One of the grounds for divorce is, ‘unreasonable behaviour’. In a recent high profile case involving Mr and Mrs Owen, a divorce was refused because the, ‘unreasonable behaviour’ was described, to be at best, flimsy. For example, one of the allegations was that the husband in the case was slow putting the bins out for collection.
It is, therefore important to ensure that when a divorce petition is drafted it meets certain criteria, meets a certain threshold which will be acceptable to the Judge. It is not the Judge’s job to rubberstamp the divorce petition based upon unreasonable behaviour, but to vet it carefully. If the petition is weak or flimsy the District Judge has the discretion to dismiss it. This can waste a great deal of cost and time.
Mr and Mrs Owen even appealed. The case went all the way to the Court of Appeal in London, to the most senior Judges in the land and they decided that the law must be respected even though nowadays most people simply want to get divorced without apportioning blame. That is just not possible, there has to be substantial ‘unreasonable behaviour’, without which and in the absence of other grounds for divorce, a petition will be dismissed and the divorce thwarted.
Drafting a divorce, petition based on ‘unreasonable behaviour’ is a challenge for family lawyers. On the one hand they do not want to inflame the relationship between the husband and wife, but on the other hand they need to ensure that the petition is strong enough to be acceptable to the Judge, when later on, he or she vets its content. Expert family lawyers are adept at dealing with this emotionally charged situation and seek, as far as possible to advise clients on what constitutes ‘unreasonable behaviour’ without causing offence.
Perhaps the motto is “not to fall out over the wheelie bin” but seek proper legal advice.
Caption: Andrew Brooks. Partner – Head of the Family Department.