There is only one ground for divorce; the irretrievable breakdown of marriage. One of the most commonly used facts to prove that a marriage is beyond repair is unreasonable behaviour, and the petitioner must provide some examples of their spouse’s bad behaviour in the divorce petition. The behaviour must be such that the petitioner cannot “reasonably be expected to live” with the respondent.

In the recent case of Owens V Owens, the wife provided 27 examples of her husband’s unreasonable behaviour which she claimed, when taken together, were such that she could not be expected to live with him. Mr Owens denied the allegations and, unusually, defended the divorce. The judge agreed with Mr Owens that the wife’s examples of unreasonable behaviour were not unreasonable enough, stating that the allegations were “of the kind to be expected in marriage.”

The wife appealed the judge’s decision on the basis that firstly, the judge failed to take into account the cumulative effect of the examples of unreasonable behaviour and secondly, that the law should be viewed in line with current thinking and social norms. In other words, the wife argued that it was “extraordinarily unusual in modern times for a court to dismiss a petition for divorce.”

In March, the Court of Appeal refused to overturn the earlier decision. The Court concluded that the original judge had assessed the evidence properly and applied the law correctly. Effectively, the Court of Appeal have stated that Mrs Owens must remain married to her husband. Mrs Owens intends to seek permission to appeal to the Supreme Court.

So what does this case mean in practice? Will divorce petitions now only be approved if the behaviour alleged is sufficiently unreasonable? And if so, who is to say what behaviour is unreasonable enough? There is a danger that examples of unreasonable behaviour included in a divorce petition will become much more confrontational. This is not in line with the Resolution Code of Practice, of which many family solicitors are members, which promotes the use of non-inflammatory language in order to preserve relationships for divorcing parties and, in particular, any children.

What is important to bear in mind is that this case was a contested petition whereas the vast majority of petitions progress uncontested, it is therefore unlikely that a petition based on mild examples of unreasonable behaviour will be rejected by a Court. What may become more commonplace is for a petitioner to reserve the right to expand upon their allegations, in the unlikely event that the divorce is defended.

The petition often sets the tone for dealing with the separation and it is therefore important that examples of unreasonable behaviour are not exaggerated or fabricated, as this could make conflict more likely.

rhw Solicitors LLP

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