How you decide what is ‘unreasonable behaviour’ when a marriage breaks down

What is unreasonable behaviour when a marriage breaks down.
What is unreasonable behaviour when a marriage breaks down.

The Supreme Court heard the case of Mrs Tini Owens and Mr Hugh Owens on July 25 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 determined that she is not entitled and must remain married to Mr Owens until at least 2020 after they have been separated in excess of five years.

The current law – from 1973 – states that there is only one ground for divorce and that the marriage has irretrievably broken down.

However, a person petitioning for divorce must have facts to support this. The five are: 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.

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.

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 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. 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.

This can only be a step back to helping parties, not moving forward to finding early and less hostile resolution to arrangements.

Family law at Tilly Bailey & Irvine is about resolving issues in the least acrimonious way, particularly where children are involved.