Please note that the following guide only applies to divorces started before 4pm on 5th April 2022. For divorces after this date, no fault divorce now applies.
Where one spouse has made an allegation of unreasonable behaviour as their ground for divorce and the other party disagrees with this assertion then they are entitled to defend the allegation. Unreasonable behaviour is the most common reason given for the irretrievable breakdown of a marriage since it does not require a long time period to have passed (two or five years for separation or desertion) or an admission to adultery.
Where the fact being used for the breakdown of the marriage is unreasonable behaviour, the person making this allegation needs to show the court that the behaviour of their spouse is so unreasonable that they should not have to remain married to them.
What is unreasonable is fairly subjective but does rely on the courts agreeing that the marriage has broken down due to this behaviour. The case of Owens v Owens that was heard in the Supreme Court in 2018 highlighted that unreasonable behaviour will not be allowed as the basis for a divorce where a party is just unhappy in the marriage if there is no actual evidence of unreasonable behaviour.
There is no definitive list as to what will be regarded as unreasonable behaviour but examples include:
Abuse, including physical, verbal, emotional and sexual
Inappropriate relationship with another person
Drug or alcohol abuse
Unreasonable sexual demands
Working unreasonable hours
A spouse that has been served divorce papers has various options if they are unhappy with the allegations of unreasonable behaviour:
It is possible to defend the divorce and state that the relationship has not broken down but this is extremely rare (though this is what happened in the above mentioned case of Owens v Owens). In most cases, both parties agree to the divorce but may disagree on the grounds.
Alternatively, it is possible to challenge the allegation of unreasonable behaviour in order to have this changed. It should be noted that this is likely to have the same result (the divorce is granted) but the process will be longer and more expensive. Another route is for the party accused of unreasonable behaviour to respond to the divorce petition in the Acknowledgment of Service raising their objections or concerns.
If a party agrees that the divorce should proceed but disagrees with the allegation of unreasonable behaviour, then they can make a cross petition, where they put forward their version of events as to why the marriage has broken down. It will be up to the court to decide which petition will be accepted.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.