What is unreasonable behaviour for divorce?
The recent Court of Appeal case of Tini Owens's, aged 66, divorce against her husband of 39 years, Hugh Owens, aged 78, looks at our fault based divorce law. It has been said that the behaviour of Mr Owens was not 'unreasonable' enough to be granted a divorce citing this fact. The ruling is yet to be published, but this case adds further weight to the argument about changing to no fault divorce.
A senior judge, Lord Wilson, was quoted in The Times as being critical of the fault based divorce law. This is because in England and Wales there is only one ground for divorce, which is the irretrievable breakdown of the marriage. To prove you have reached that threshold one of five facts must be cited. These are: adultery; behaviour which one spouse finds unreasonable and intolerable to live with; two years' separation with consent; desertion or five years separation with no consent from the other spouse needed. Only adultery and behaviour can provide you with an imminent divorce, the other facts all require a period of separation of at least two years.
The most commonly cited fact is behaviour, commonly referred to as unreasonable behaviour. The case-law makes it clear that in looking at the behaviour allegations you must look at the particular spouse, such that if he or she finds the behaviour unreasonable and intolerable to live with, but someone else might not, that does not matter. Consequently, it is regarded as a fairly easy task to meet the threshold but, extraordinarily, Tini Owens's allegations have not, as yet, been regarded by the court as sufficient to grant her request for a divorce. She said his "continued beratement", including criticising her in front of their housekeeper, rowing with her in an airport shop and not speaking during a meal, amounted to unreasonable behaviour. Her husband has contested her petition as he wishes to stay married. This in itself is incredibly rare as petitions are very rarely contested. Mrs Owens herself has had an affair but it is not possible to petition yourself for your own adultery.
We shall have to wait and see what the Court of Appeal rule, but it would be very unusual for the court to find that Mrs Owens is not entitled to be divorced given the subjective nature of the unreasonable behaviour fact. We shall also have to wait and see whether this case, which has caught the media's attention, and Lord Wilson's comments will have any affect in terms of divorce law reforms.
If you would like any further information about divorce law please contact a member of the Blake Morgan Family team.