Head of Family at
K J Smith Solicitors
In the UK, at present, if you want a “no-fault divorce”, then you need to wait at least two years. You may have to wait up to five years. If you want to divorce quickly, then you need to show that you have been the victim of adultery, desertion or “unreasonable behaviour”.
Unreasonable behaviour – the theory
In theory, there are three questions which need to be answered in order to decide if behaviour can be legally deemed unreasonable. These are:
- What did the person do?
- What impact did that have on the petitioner?
- What does the court think of this in the context of the history of the marriage?
- Unreasonable behaviour – the practice
In practice, the court’s job is to determine whether or not a marriage has irretrievably broken down. This means that they generally take that view that “unreasonable behaviour” is whatever the petitioner says it is unless the other party contests it.
What’s more, the law allows both parties and the courts a little room to manoeuvre. The respondent can choose to state that they disagree with the allegations against them but will not contest the divorce. For the most part, this allows divorce claims to progress in the same way as they would have if the respondent had accepted the allegations.
Presenting a claim for unreasonable behaviour
As a rule of thumb, you want to cite four to six examples of behaviours you consider to be unreasonable and their impact on you. In principle, these examples can relate to any behaviour which makes you feel like it is not feasible for you to continue in the marriage. In practice, it’s likely to be in your best interests to choose “no faults” reasons.
Basically, you want to cite behaviours which highlight mutual incompatibility rather than personal failings. For example, you could cite your spouse working long hours, spending long periods socializing without you or being excessively absorbed in a hobby they practice without you. None of these are personal criticisms, just indications that you should go your separate ways.
You generally want to resist the temptation to make any serious allegations especially anything involving children. Firstly, they may rile your spouse. Even if this doesn’t cause them to contest the divorce, it may cause them to be less cooperative about it. Secondly, it may give the judge the impression that you are weaponizing your children.
For clarity, piling on the examples of unreasonable behaviour will not (usually) increase either your chances of getting custody of your children or the value of any divorce settlement. In fact, once a judge is satisfied that the married is, effectively over, the reasons for its ending are generally completely ignored. They are also sealed off from the general public.
Completing the divorce process
It is absolutely permissible to cite unreasonable behaviour as grounds for divorce but still present the judge with a mutually-agreed settlement arrangement. In fact, it’s highly encouraged, particularly when there are children involved.
Keep in mind, however, that judges will look carefully at these settlements to make sure that they are legally sound. If a judge is unhappy with what they see, they can and will reject the proposal.
Resolving their objections may simply be a matter of making some minor amendments. The issue is that the need to make changes may push the divorce case back to the end of a long queue. This is a particular concern at the moment due to the ongoing impact of COVID19.
It is therefore very advisable to have divorce settlements checked by a mediator and/or a lawyer before presenting them to a judge.
Going forward
If you and your partner are not in a rush to divorce, you may wish to consider waiting until the UK implements “no-faults divorce”. This is currently scheduled for autumn 2021, although this is subject to change.
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Author Bio
Kerry Smith is the head of Family Law at K J Smith Solicitors and are experienced in all matters relating to divorce, civil partnerships, cohabitation disputes and collaborative law.