Supreme Court to decide what is “unreasonable”

Published on: September 13, 2017

A petitioner who was refused a decree of divorce because the court did not consider that her husband’s conduct amounted to unreasonable behaviour, has been granted permission to appeal to the Supreme Court.

Mrs Tini Owens was told by his honour Judge Tolson QC that her allegations were “minor altercations of a kind to be expected in a marriage”.

She appealed that decision but the Court of Appeal said it could not interfere with the decision of the trial Judge.

Now, the Supreme Court will have to resolve the very thorny question of what is actually required to establish unreasonable behaviour in order to obtain a decree of divorce.

Our current divorce laws were originally formulated in 1969 and then re-affirmed in the 1973 Matrimonial Causes Act.

In essence there is just one ground for divorce – that the marriage has irretrievably i.e completely broken down. However to establish that position, it is necessary for the petitioner to prove one of the following five bases:-

Unreasonable behaviour
Desertion for 2 years
Living apart for 2 years and the other party consents
Living apart for 5 years
The world was a very different place in 1973 – no computers, no mobile phones, no internet and divorce was a relatively rare occurrence.

At that time, to establish unreasonable behaviour required quite a high level of misconduct on the part of the errant spouse.

Gradually divorce became more “acceptable” in society. However successive governments failed to bring in modernising legislation and so it was left to the lawyers and Judges to try to fit society’s wishes within the constraints of the ever more outdated law.

Unreasonable behaviour is the most frequently used basis on which to found a divorce petition – not because of a surge in inappropriate behaviour, but because it is often the only basis on which divorce proceedings might be commenced.

Recognising this, the courts have become significantly more understanding of parties who wish to bring an end to an unhappy marriage.

Consequently the courts reduced the severity of the test for unreasonable behaviour – to the extent that both the Law Society and Resolution (an association of family lawyers) have incorporated within their protocols the recommendation that copies of proposed petitions for divorce should be sent in draft to the other spouse for approval, before issue. This is designed to reduce the antagonism in divorce proceedings.

Nowadays almost anything will suffice to found a petition for divorce based on unreasonable behaviour and so his honour Judge Tolson’s decision, which involves a stricter interpretation of the definition of unreasonable behaviour, has given the Supreme Court quite a challenge. The precise wording of Section 1(2)(b) of the Matrimonial Causes Act states that the “respondent had behaved in such a way that the petitioner could not reasonably be expected to live with the respondent”.

It will be argued on behalf of Mrs Owens that the Act does not specifically require the respondent to have behaved unreasonably – simply that the respondents behaviour was such that the petitioner could not reasonably be expected to live with the respondent.

If the Supreme Court were, in its decision, to restore an enhanced level of severity for the proof of the respondent’s behaviour, the allegations in divorce petitions may become more hostile potentially leading to greater tension between the parties and more contested divorce proceedings. This is the last thing that the already overwhelmed court system would wish to create.

No date has yet been given for the hearing of the appeal.

Request a callback