Unreasonable behaviour in divorce
Posted: Monday August 20 2018
By: Vanessa Fox
What constitutes unreasonable behaviour in divorce?
By Vanessa Fox
The case of Tini Owens – who lost her bitter battle to be freed of her loveless marriage – is the first one based on the grounds for divorce to go before the Supreme Court.
Mrs Owens’ failure to persuade a Family Court judge that her husband, Hugh Owens, had behaved in a way with which it was unreasonable to expect her to have to live with, has resulted in her remaining trapped in a union which appears to have broken down in 2015 when she moved out of the marital home.
This case centred on what is deemed to be behaviour which the petitioner cannot be expected to live with. This ground for divorce is one of the two most commonly named grounds for divorce, the other being adultery, which can be difficult to prove.
The remaining three grounds are desertion for 2 years, 2 years’ separation with consent from an ex-spouse, or 5 years’ separation without the need for consent.
Tini Owens’ petition for a divorce was hotly contested by her husband. Her petition was dismissed by a Family Court judge who said her allegations about her husband’s behaviour were “flimsy”.
This decision was upheld by The Court of Appeal who said Mrs Owens had failed to establish that the behaviour was such that she could not reasonably live with and thus she could not prove that her marriage had irretrievably broken down. This view was upheld by the highest court in the land, although the five Supreme Court Lords and Ladies of appeal ruled against her appeal “with reluctance”.
In the vast majority of contested divorces, petitioners like Mrs Owens are granted a divorce. The litmus test is for Family Court judges to determine what can the petitioner in question be reasonably expected to live with. The result can vary because different judges might have different views about what the petitioner could put up with.
Petitioners frequently walk a tightrope between submitting a petition which will be accepted by the Judge, without sending the other party spiralling into depths of despair. In my extensive experience, I have seen petitions granted for reasons which included a wife disliking the way her husband put their dirty plates on the floor for the dog to lick, dislike of the number of cats the wife had, and other relatively minor issues.
Equally, some petitioners could make very serious allegations, which they decide not to put forward as they don’t wish their children ever to know about the behaviour in question.
Mrs Owens’ case has accelerated the campaign by Resolution, an organisation that represents 6,500 lawyers working in family law, which threw its weight behind Mrs Owen’s case with a view to changing the law.
Resolution is calling on the Government to modernise our outdated 1973 Matrimonial Causes Act and introduce “no fault” divorce. This would enable couples to end their marriages without either person being held at fault. This would dispense with petitioners listing what is, or is not in Mrs Owens’ case, regarded as “unreasonable behaviour”.
In the last four decades, the world and its myriad of relationship types, has moved on – yet our legislation remains entrenched in a time far removed from today’s society. Mrs Owens, who had been married for 39 years, will no doubt reflect on this as the clock counts down to 2020, when she can finally obtain a divorce following 5 years’ separation and is free to move on with her life.