What Constitutes 'Unreasonable Behaviour'? More Couples Than Ever Are Obtaining Divorce This Way

It's not always simple.

The number of divorces being granted on the grounds of “unreasonable behaviour” is on the rise, new research from Oxford University has found.

The proportion of divorces granted to wives because of unreasonable behaviour rose from 17% in 1971 to 51% in 2016. Among husbands, the rise was even more dramatic, going from the least used reason in 1971 to the most used in 2016 — up from 2% to 36%.

The study comes a week after the Supreme Court ruled Tini Owens can not divorce her husband of 40 years, despite her accusing him of unreasonable behaviour and appealing for divorce since 2015. The ongoing disagreement has led to five Supreme Court justices analysing the concepts of “unreasonable behaviour” and “fault” and what constitutes enough to give people the legal separation they are seeking.

So, what do people need to know about unreasonable behaviour, and why you might choose this over other options when petitioning for divorce?

How Can You Get Divorced In The UK?

In England and Wales, there are five different facts you can use to ask for a divorce, often called the grounds for divorce. According to the government website, they are:

  • Adultery - your husband or wife had sexual intercourse with someone else of the opposite sex (the law only recognises adultery as sexual intercourse between a man and a woman. We know, weird right?).

  • Two years separation - if you have been separated for more than two years you can apply for divorce (it doesn’t matter if you’re living in the house if you can prove you do things like sleep and pay bills separately). But this is only if both agree this is the case.

  • Five years separation - if you and your partner do not agree, at five years this doesn’t matter.

  • Desertion - your partner has left you to end your relationship, without good reason or without your agreement.

And finally, unreasonable behaviour. The last option is by far the most common fact used in divorce cases.

What Counts As Unreasonable Behaviour?

Sarah Green, a divorce and family lawyer at the firm TLT, explains that the statute of ‘unreasonable behaviour’ is based on the argument the “respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”,

Over the years this has been shortened to “unreasonable behaviour”.

And this is (to a degree) completely subjective: Green says it can be anything that you as an individual consider to be unreasonable, even if someone else might consider it to be reasonable.

Examples include verbal abuse (insults or threats), drunkenness, refusing to contribute to bills or housekeeping, or physical violence.

Why Are More People Using Unreasonable Behaviour?

Green, whose job is to help couples work towards a speedy legal resolution, says many opt for unreasonable behaviour claims because the only real “no fault” alternative is to wait and move forward on the basis of two years’ separation and consent.

“Most people aren’t prepared to wait for two years to get divorced,” she says. “They have made the decision that they want to move forward with their lives and want to do so as soon as possible.

“There is also a risk that people can be left vulnerable financially as the court cannot make orders about finances until the divorce process is underway.”

How Long Does Divorce Take On Grounds Of This?

Green says: “Getting a divorce can also take a long time, as there are various forms to fill out through the process. At present, the court centres dealing with divorces are overstretched and we are seeing long and unnecessary delays in straightforward documents being processed and returned.

“This can add a further six months to a year to the divorce process, meaning a couple petitioning on two years separation and consent could have to wait 2.5 to three years in total (and that’s presuming there are no arguments over the split of their finances).”