In England and Wales, you can only divorce if you have been married for at least one year. There is only one basic ground for divorce: the irretrievable breakdown of the marriage. You can prove irretrievable breakdown by establishing one or more of the following ‘facts’ for divorce:
Fact 1. Adultery
Fact 2. Unreasonable behaviour
Fact 3. Desertion
Fact 4. 2-year separation
Fact 6. 5-year separation (in this instance your spouse does not have to consent to divorce)
This article focuses on the most often misunderstood area of divorce law and gives an overview of what constitutes unreasonable behaviour in the eyes of the court. This article offers information both for the Divorce Respondent (the person who receives the divorce petition) and the Divorce Petitioner (the person who issues it).
What kind of behaviour is considered unreasonable?
English courts today take a fairly liberal approach to defining unreasonable behaviour in divorce law. The courts tend to be pragmatic about which behaviours are deemed unreasonable enough for divorce, since they understand that if a couple appears together to obtain a divorce, the marriage has indeed irretrievably broken down . The term covers extreme types of behaviour like alcoholism or violence, but it is by no means necessary to make serious allegations of this sort in a divorce petition. In fact, for those wishing to obtain a quick divorce which remains amicable, to cite unreasonable behaviour can be a sensible way forward- if you do not wish to wait the 2 years which are required by the courts to obtain a separation based divorce. The one criterion for unreasonable behaviour is that it must be such that one partner can no longer tolerate living with the other one. Examples may include the unreasonable partner working too many hours, not assisting enough with children, or not having anything in common. A few basic points which convey why you feel the behaviour makes it impossible to live together will suffice, since the courts do not insist on extreme examples of behaviour- just enough to prove that there is no retrieving the relationship.
When should you cite unreasonable behaviour in order to divorce?
It is important to be aware of the time limits for which unreasonable behaviour can be valid grounds for divorce. Unreasonable behaviour is usually cited in divorce petitions if the couple have not separated for any length of time. If you and your spouse are still living together, then the last incidence of whatever type of unreasonable behaviour you have described in your divorce petition must have occurred no longer than 6 months from the date the petition is filed. There are two reasons for this. Firstly unreasonable behaviour is not always unacceptable to spouses, and does not always lead to separation. For instance, if both parties have always worked 14-hour days throughout the marriage, it would lack credibility if one of them suddenly decided to petition for divorce based on the others work habits.
The second reason is legal, and can best be explained by example. Say a husband gets heavily drunk 3 times a week in January, and as a result the wife decides that the marriage is over. However, she continues to live with him, and by March he has reverted to normal social drinking without getting drunk again. At any time within six months of the heavy drinking incidents, the wife could, if she wished, present a petition for divorce based on this unreasonable behaviour. However, 6 months after the last time he got drunk, she can no longer use this incident as past grounds for divorce while she is still living with him (although drinking may be cited as evidence of wider patterns of unreasonable behaviour, if other unreasonable behaviours were also affecting the marriage between January and June).
If, however, the couple did not continue to live together, this incident would remain grounds for divorce. If the wife in the above example had immediately left her husband and moved elsewhere, she could still petition for divorce based on her husband’s drinking even if it were now August. It is prudent in legal terms, however, not to wait too long. The divorce courts will be more sceptical about accepting unreasonable behaviour as divorce grounds if your spouse is not actually able any longer to affect you directly by their unreasonable actions. If it looks as though the six months (since the last incident of unreasonable behaviour) will elapse soon, it may be sensible to consider petitioning for divorce before much longer. Otherwise, you may have to wait two years from the date of the separation before you are able to petition for divorce based on two years’ separation (Fact 4 above). The 2-year fact, furthermore, is dependent upon the other’s consent. If that consent is not forthcoming the person who wants the divorce may have to wait until the separation has lasted five years unless in the meantime his/her spouse relents. This can be less than ideal, particularly if you hoped to obtain a divorce to remarry, so it is worth bearing these time limits for
unreasonable behaviour in divorce petitions.
But I dont want to call my partner unreasonable- its an amicable divorce.
Importantly, divorce is a private matter, as a sensitive and professional divorce solicitor should make clear. Details of unreasonable behaviour in an undefended divorce petition are not divulged to the public, so nobody except the parties directly concerned ever need to know what was in the petition. It is common in the UK for the divorce Respondent to agree not to defend the divorce, on condition that this non-defence does not affect any allegations of unreasonable behaviour in other legal proceedings (which may concern your children or shared property). In the overwhelming majority of cases the allegations are unchallenged because very few divorces are ever in fact defended. The Respondent may sometimes make non-defence conditional on certain agreements as to who bears the costs of the divorce. You may find it advisable to take specialist legal advice on this matter.