Unreasonable Behaviour in Family Law Matters

Until no-fault divorce comes into being in the UK, the current fault-based divorce system requires one party to cite a ground for divorce; in other words, they must provide the court with a reason why the relationship has irretrievably broken down. The petitioner (person applying for the divorce) must provide evidence to support their chosen ground, and the respondent (the petitioner’s spouse) can either agree or disagree.

In 2019, ONS statistics showed that unreasonable behaviour was the most common reason cited in the divorce proceedings of opposite-sex couples, with 49% of wives and 35% of husbands petitioning on these grounds. It was also the most common ground cited in the divorce proceedings of same-sex couples and accounted for 63% of divorces among female couples and 70% among male couples

Citing unreasonable behaviour, no matter how bad the behaviour appears to be in the petitioner’s opinion, is purely the means by which the court will decide whether or not to dissolve the marriage and the severity of the behaviour will bear little or no relevance as to how the divorce is likely to proceed through the court system. However, one way in which it may affect a divorce is in relation to costs.

If unreasonable behaviour (or desertion, or adultery) is cited as the ground for divorce, then the respondent may become liable for at least some of the petitioner’s costs.

Unreasonable behaviour as grounds for divorce

One of the main criticisms of the current divorce process is that unless you can state one of the other grounds for divorce on your petition then you will have to provide the court with several examples of your spouse’s bad or unreasonable behaviour. You must include details of the behaviour that has adversely affected the marriage, dates of when it occurred, and how it made you feel. You will be expected to provide enough specific information to satisfy the court that you cannot reasonably be expected to continue living with your spouse.

The evidence provided to the court is also sent to the respondent who must either agree that the evidence is the reason for the irretrievable breakdown, and that they therefore agree to the divorce, or, If they don’t agree, they may wish to contest the divorce. And this is where the current adversarial system can get very difficult and costly.

Divorce court controversy in the 21st century

In the case of Owens v Owens, which has proved to be a persuasive argument for the introduction of no-fault divorce in England and Wales, Mrs Owens applied for a divorce citing that her husband’s behaviour was unreasonable. Mr Owens disagreed and defended the divorce petition. The court did not agree with Mrs Owens that her evidence was proof of irretrievable breakdown and the petition was dismissed. Mrs Owens appealed this decision and this was also dismissed.

Despite the spiralling costs, Mrs Owens maintained her position that she was trapped in a loveless and unhappy marriage and argued that this should be reason enough to be able to obtain a divorce. She took her case to the Supreme Court and while the judges stated in their judgement that the case was troubling, they agreed with the initial ruling that Mrs Owens had not sufficiently proved her argument of unreasonable behaviour.

Following Owens v Owens, a number of organisations and interested parties, including many divorce solicitors, suggested that the current adversarial divorce system is out of date and out of touch with a society which strongly believes in autonomy when dealing with personal feelings. Many believed that all the ruling would do would be to make sure that divorce solicitors urged their clients to use robust accusations of bad behaviour to ensure success. And this, in turn, will only serve to fuel the more adversarial and contentious nature of English and Welsh divorce courts.

Bad behaviour and financial settlements

Under Section 25 of the Matrimonial Causes Act 1973, there is no legal concept to provide financial compensation for bad marital behaviour; so the amount of unhappiness endured in a marriage as a result of a former spouse’s behaviour will not be taken into consideration by the court during a divorce financial settlement claim.

However, when dividing matrimonial wealth the court will seek to make the fairest settlement possible determined by the individual circumstances of the case and if bad conduct has in some way affected the family finances (or the finances as they have been presented to the court) this may be considered in a number of other ways. These broadly fall into three categories:

Financial conduct in relation to the marriage
If the court can quantify how bad behaviour has affected the matrimonial pot, for instance in terms of reckless spending, gambling, or needlessly stopping working, then it may be able to apply this in the form of ‘adding back’ a sum to reflect the amount taken from the pot.

However, the court may not be able to add back in certain cases, for instance if it can be proved that the financial misconduct was not ‘wanton’ or deliberate but was the result of a medical condition or an addiction.

If fraudulent behaviour has damaged the matrimonial pot, the court may be able to award the wronged party a sum as part of the financial settlement to reimburse any financial loss.

Personal conduct and the financial settlement
In a financial settlement, the impact of bad personal behaviour is complex and, as seen in Owens v Owens, what constitutes bad behaviour is fundamentally subjective. It must be remembered that the family court is not punitive and is not able to stray into the realms of providing criminal judgement on behaviour within a marriage.

Where harmful personal behaviour, such as domestic violence for example, has caused a grossly unfair situation (perhaps injury has rendered one party unable to work or caused lasting psychological damage) and is so serious that it would be unfair not to factor it in to any settlement, the court may seek to distribute wealth so as to address the financial loss.

Unfortunately, there is no comprehensive test to determine when bad conduct will be given weight within a financial settlement and the courts are guided by a relatively small number of cases in which the type of conduct considered was extreme and “both gross and obvious”.

Litigation Misconduct
During divorce proceedings, both parties will be expected to abide by court rules and adhere to all requirements to enable divorce proceedings to run smoothly.

For example, both parties will be expected to provide full disclosure of their financial situations. If a party is found to be hiding assets or has disposed of them in order to prevent the other party from benefitting, the court can impose a costs order and, in very serious breaches, a fine and custodial sentence for contempt of court.

Similarly, if delay tactics are used or false evidence is presented to the court this could also see the parties ruled in contempt.

Using children as a bargaining tool

It is not uncommon to hear of one parent deciding to withhold child contact from the other party as a misguided form of punishment for bad behaviour. However, if the parties are subject to a child arrangements order whereby contact has been agreed, the party withholding contact could be seen to be in contempt of court. This could result in legal action against them.

Nevertheless, if any party believes that the bad behaviour of the other parent is putting children at risk of harm, then it is best to seek legal advice as soon as possible so that the correct authorities can be notified and the proper steps taken to ensure the children’s safety.

While it is a fairly common and sad fact of family law that children are used by some parties as bargaining chips in divorce, the court has no power to factor this behaviour into a financial settlement and the issues of child arrangements orders, child maintenance and parental responsibility are separate issues.

Divorce solicitors for financial settlement and family law matters

For help or advice on matters discussed in this article please call 020 8464 4242 for our Bromley team, 01732 457575 for Sevenoaks, 020 7481 2422 for central London or 01372 750100 for our Surrey team.

Alternatively email your enquiry to familylaw@wellerslawgroup.com.  We offer a fixed fee, no obligation one-hour interview so that we may provide you with initial advice and suggest the options for your next course of action.