Do you have to PROVE unreasonable behaviour in a divorce?

A divorce case in the Supreme Court, Owens V Owens (explained below) has attracted media attention during July and raised the question of whether fault is a necessity in a divorce?

Must divorce show that one party is at fault

Currently in the UK, a couple cannot get divorced without showing that one of the parties is at fault unless they have been separated for at least 2 years.

The only ground for divorce is that the petitioner must show that there has been an irretrievable breakdown of the marriage by establishing one of five facts:

  • Adultery - The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; 
  • Unreasonable behaviour - The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; 
  • Desertion - The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; 
  • 2 years separation with consent - The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; 
  • 5 years separation (no consent required) - The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

It is not currently possible to divorce if the couple simply “fell out of love” or grew apart, unless they have been separated for two (or five) years. Therefore, a ‘no-fault’ divorce does not currently exist in the UK.

UPDATE: No fault divorce is due to become law in the UK soon. You can read my colleague Louisa Knight's article on no fault divorce here.

Define unreasonable behaviour?

It highlights the importance of the definition of unreasonable behaviour, in particular that the petitioner cannot reasonably be expected to live with the respondent.

The full test of a “Behaviour Petition” is that they cannot reasonably be expected to live with them.

Proving unreasonable behaviour

Defended suits for divorce are exceedingly rare. Unfortunately, in these cases, to obtain a divorce the Petitioner has to prove that the marriage has broken down irretrievably and therefore prove one of the five facts above.

A recent case, the divorce of Mr & Mrs Owens, has made it all the way to the Supreme Court. In this case the divorce was not granted because the petitioner did not demonstrate that she could not reasonably be expected to live with her husband.

Owens v Owens

Mr & Mrs Owens were married in 1978. Mrs Owens had been contemplating a divorce since 2012 but it was not until February 2015 that she left the matrimonial home and they have not lived together since.

In May 2015, Mrs Owens issued the divorce petition alleging that the marriage had broken down irretrievably and citing unreasonable behaviour from Mr Owens. It was drafted in tame terms but when it was served on Mr Owens he decided to defend the suit, arguing that the marriage was successful.

In a hearing in October 2015 Mrs Owens was given permission to amend her petition to expand upon her allegations of unreasonable behaviour. Mrs Owens duly amended her petition to include 27 examples of Mr Owens’ moody, argumentative and disparaging behaviour, but at the one-day hearing her counsel ultimately focussed on only a few of these.

The judge found that the marriage had broken down, but that Mrs Owens’ 27 examples were flimsy and exaggerated. Accordingly, Mrs Owens’ petition for divorce was dismissed. She appealed, but her appeal was also dismissed. She has now appealed to the Supreme Court, which unanimously dismissed the appeal (albeit with some feeling of disquiet) with the result that Mrs Owens must remain married to Mr Owens for the time being.

If she remains living apart from him she will be able to divorce him in 2020 on another fact (5 years separation (where no consent is required)).

Why did Mr Owens contest it?

It is interesting to note that Mrs Owens is currently aged 68 and Mr Owens is aged 80. Usually a divorce reaches Decree Nisi and then pauses to agree the financial settlement, which then comes into force upon the Decree Absolute. It could be speculated that Mr Owens wants to do everything in his power to delay the financial agreement coming into force.

Why did the appeal fail?

This decision may seem perverse to those that are not lawyers. The parties are separated and the contested divorce suit / appeals have been running since 2015. It is clear that Mrs Owens has no wish to remain married.

Proving unreasonable behaviour

Cases like this are exceedingly rare. However, it does highlight the importance of having an experienced lawyer on your side who can interpret the situation and fully understands the importance of the wording of family law legislation, the Matrimonial Causes Act 1973.

Simon Immins, Associate and Family Law Solicitor, comments on this case, saying “The court have to follow the law conscientiously and cannot change the law. The Supreme Court acknowledged that the current law had not kept pace with modern relationships, but it was satisfied that the existing law had been correctly interpreted. Parliament would have to consider replacing this law which denies Mrs Owens a divorce in the present circumstances.”

Minimal animosity

The advice of the Law Society is "Where the divorce proceedings are issued on the basis of unreasonable behaviour, petitioners should be encouraged only to include brief details in the statement of case, sufficient to satisfy the court."

Simon says “The practise among family lawyers and the courts in recent years has been to try to minimise acrimony and hostility. As a profession, we aim to foster co-operation between the parties to resolve financial matters and issues concerning children. However, there are certain circumstances where a more robust approach must be taken. An experienced solicitor can foresee the occasions when it is necessary to express the points which prove unreasonable behaviour satisfactorily, which means that the petitioner cannot reasonably be expected to live with their spouse any longer.”

Divorce - what am I entitled to?

My colleague Louisa has written an overview of how finances and assets are divided in a divorce, which you can read by clicking teh link below.

Who gets what in a divorce?

Pragmatic approach

Until the law changes in the UK, practitioners will have to remember the actual wording of the statute and perhaps be slightly more robust.

Simon concludes “Taking this step is never easy, but we are here to offer you support and guidance throughout the process. We are experienced in advising clients faced with complex financial and emotional situations.”

Our Family Team are happy to discuss any issues that this raises for you and we offer a free initial meeting or chat on the phone.

If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 or 01425 610100 and Simon or a member of the team will be happy to chat about your situation and your particular requirements.