THE BLOG
26/09/2013 07:33 BST | Updated 25/11/2013 05:12 GMT

Divorce: Adultery or Unreasonable Behaviour?

There has been a significant drop in the number of divorce petitions citing adultery as the reason for the breakdown of the marriage. Instead, unreasonable behaviour has become the most commonly cited reason.

Recent research conducted by The Co-operative Legal Services and cited in The Huffington Post revealed that there has been a significant drop in the number of divorce petitions citing adultery as the reason for the breakdown of the marriage. Instead, unreasonable behaviour has become the most commonly cited reason. This raises the question of whether it is better to choose one option over the other and whether divorcing on the basis of adultery will become a thing of the past.

In order to prove the irretrievable breakdown of a marriage there are five options upon which it is possible to rely:

• Unreasonable behaviour;

• Adultery;

• Two years' separation and the consent of your spouse;

• Desertion;

• Five years' separation and no consent needed.

Therefore, you can see that, if you wish to get divorced immediately and have not been separated for two years or more, the only options open to you are either to cite adultery or unreasonable behaviour. Both options have advantages and disadvantages.

Unreasonable behaviour - Advantages

Unreasonable behaviour can be defined very widely. In addition, the behaviour only needs to be subjectively unreasonable, which means that what is reasonable to one person may be unreasonable to another. This, combined with the fact that everyone is unreasonable at one time or another, means that it is comparatively easy to find examples of unreasonable behaviour.

Another benefit is that the Respondent does not need to admit that the unreasonable behaviour has taken place. In the case of adultery the Respondent must admit to it. If he or she refuses, it must then be proved, which can be difficult and expensive.

Unreasonable Behaviour - Disadvantages

Choosing unreasonable behaviour as the reason for the divorce is not without disadvantages. While it is true that the behaviour only needs to be subjectively unreasonable, it must be sufficient to convince a judge that it is the cause of the breakdown of the marriage.

In many cases the real reason for the divorce is that a couple has simply drifted apart and no longer wishes to remain married. In those circumstances, it is necessary to go through the artificial exercise of producing examples of unreasonable behaviour simply to obtain the divorce. For the Respondent it is rarely easy to remain unaffected by seeing those unflattering examples set out in black and white. This can then create tension where none previously existed and spill over into the other aspects of the divorce (for example resolving children or financial issues).

Therefore, the Petitioner often has to tread a fine line between keeping the examples as mild as possible so as not to offend the Respondent unnecessarily, but sufficiently strong to prove the breakdown of the marriage.

Adultery - Advantages

Where a spouse has no objection to being petitioned on his or her adultery, this can often be a quicker and cleaner route than unreasonable behaviour. It is not necessary to (and ideally you should not) name the person with whom your spouse committed adultery. This route also avoids the need to provide potentially hurtful examples of unreasonable behaviour.

Adultery - Disadvantages

Even if you consider that citing adultery for the breakdown of the marriage would be the best option in your circumstances, it is not always available.

It is not possible for the Petitioner to rely on his or her own adultery. The one who has committed the adultery must be the Respondent. In reality, this is only likely to impact to a certain extent on controlling the timing of the divorce.

It also goes without saying that, if there has been no adultery, it is not possible to rely upon it as the reason for the divorce. However, just because you are sure that adultery has taken place, does not mean that it is the right option for you. If your spouse is not prepared to admit that the adultery has taken place, it is unlikely to be worth your while to pursue this route. The adultery will need to be proved, which even if you succeed, will be likely to be expensive and stressful.

Does the reason for the divorce matter?

It is important to keep in mind that your aim is likely to be to get divorced as quickly and efficiently as possible. The fact relied upon in the Petition is only a means to that end. In the vast majority of cases the reason for the divorce will make no difference to either the financial or children aspects of your case. In addition, while it is a matter of public record whether the divorce was granted on the basis of adultery or unreasonable behaviour, the details of any unreasonable behaviour are private.

The future

Going forward, it is possible that petitioning on the basis of adultery may not remain an option in the long term.

The legal definition of adultery is intercourse between someone of the opposite sex to whom you are not married. This is one of the reasons that it is not possible to cite it as the basis for the breakdown of a civil partnership. It therefore follows that the same will be true following the breakdown of a same sex marriage when that becomes possible next year. Would it therefore not make sense to remove it as an option in all cases when infidelity could easily fall within the scope of unreasonable behaviour?

Perhaps a better option would be to bring in the possibility of a no-fault divorce. In many other jurisdictions it is possible to divorce on the basis of 'irreconcilable differences', which avoids the need to apportion blame. This would seem to me to be a sensible option. It would also tie in with the government's focus on alternative dispute resolution and a less confrontational approach to marriage breakdown.