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Grounds For Divorce: Unreasonable Behaviour Reforms Needed

Grounds For Divorce: Unreasonable Behaviour Reforms Needed

More couples than ever before are citing ‘unreasonable behaviour’ as grounds for divorce, research from the University of Oxford has found.

According to the study, the number of female applicants granted divorces on this basis rose from 17% in 1971 to 51% in 2016. In the same period, the percentage of men granted a divorce who cited ‘unreasonable behaviour’ rose from just 2% to 36%. The figures emerged as researchers set out to chart the effects of the Divorce Reform Act 1969 on divorce trends in England and Wales.

The Act – which has been in force since 1971 – maintained that irretrievable breakdown of a spousal relationship was the only legal reason for divorce, with five possible facts to prove such a break down. However, alongside fault-based grounds for divorce, including unreasonable behaviour, adultery and desertion – the legislative reform introduced a ‘no-fault’ option.

To divorce without citing any fault, a couple must prove prolonged separation – of two years, if both spouses consent, and of five years, if one does not. Prior to the Act, unreasonable behaviour was the most commonly cited ground for women’s divorce petitions and adultery was the most commonly cited by men. The ‘no-fault’ option has not proved as popular as lawmakers expected however, with 63% of wives’ divorces and 48% of husbands’ still awarded on a fault basis.

Unlike adultery and desertion, ‘unreasonable behaviour’ petitions are not based on narrowly defined, clear-cut proof, with applicants broadly obliged to prove that their spouse has acted in such a way that the divorce applicant cannot be reasonably expected to remain living with them.

Supreme Court divorce refusal sparks reform debate

Doubts regarding the efficacy of the current law have come to prominence in recent months, as a controversial divorce case progressed through the courts.

In July, the Supreme Court refused to grant 68-year-old Tini Owens a divorce from her husband of forty years on the grounds of unreasonable behaviour, as she had not adequately proven the marriage to be irretrievably broken.

In what lawyers for Mrs. Owens called an “extraordinarily unusual [judgement] in modern times,” England’s highest court upheld the Family Court’s ruling that Owens’ grievances with her husband were “of the kind to be expected in marriage” and not indicative of an irretrievable relationship breakdown.

The case has attracted significant media attention and led to widespread outcry from legal experts – many of whom have called for a reform of English and Welsh divorce laws. Outgoing President of the High Court’s Family Division, Sir James Munby – who led the Supreme Court’s judgement – himself stated that the case’s necessary outcome underlined the need for legislative change.

Sir James said he regretted that “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people may say it should be.”

Kate Ryan, a partner in IBB’s Family and Matrimonial team, comments:

“Following the decision in the case of Owens it is clear changes are required to the current system”.

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If you would like to discuss any aspect of divorce and family law, or want to draw up a pre or post-nuptial agreement or cohabitation agreement, call our mediation, divorce and family dispute resolution solicitors in absolute confidence on 03456 381381. Alternatively, email us at familylaw@ibblaw.co.uk.