​What is Unreasonable Behaviour to Justify a Divorce?

​What is Unreasonable Behaviour to Justify a Divorce?

The case of Mr and Mrs Owens that was dealt with by the Court of Appeal earlier this year sent tremors through the family law field in relation to how Divorce Petitions are drafted.

In this case Mr Owens defended a divorce started by his wife and the Court of Appeal refused to overturn the initial Judge's decision that the allegations made were "of the kind to be expected in marriage". Mrs Owens was not allowed therefore to have her divorce although she is now seeking leave to appeal to the Supreme Court. In the meantime divorce lawyers have been left wondering whether the common practice used before is now sufficient and the national association of family lawyers (Resolution) has issued guidance to its members.

The Petition is the document that starts a divorce. These are often viewed as emotive and partisan. The divorce law at the moment does not allow for "no fault" divorce and so a large number of divorces are based on unreasonable behaviour. The question is what level of behaviour is necessary to justify divorce. Where that is not contested the Family Court will rarely intervene but in the case of Mr and Mrs Owens there had to be an intervention as Mr Owens defended the divorce. The aim of Resolution and divorce lawyers is to minimise the animosity and bitterness in a divorce especially over the drafting of documents. To that end the best practice has generally been to ensure that any allegations of unreasonable behaviour are kept to the minimum and all that could be said is not said. The space on Divorce Petitions to provide the details is very limited and all are encouraged to minimise the allegations. A key part of that is the agreement of the contents of the Petition before a divorce is started.

Resolution's guidance on this is clear and aimed at minimising the upset and anger that is caused by divorce. Sadly all Resolution members do not adhere to this as the guidance is not binding. Many Solicitors deliberately do not try to agree the contents of a Petition and still go to great lengths to particularise a husband's or wife's unreasonable behaviour. This causes a bad situation to become even worse. The Petition can set the tone for dealing with arrangements for children or finances so there is a potential for trying to ensure that as far as possible all is dealt with amicably – or the reverse can happen with positions being taken over the actual divorce which will achieve nothing other than potentially resulting in much larger legal costs.

When selecting a divorce lawyer to act for them it is important that husbands and wives consider whether their lawyer is a member of Resolution and truly adopts the codes of guidance and ethos behind Resolution. If a divorce lawyer "pays lip service" to the need for defusing a divorce situation is that the type of lawyer that somebody would want?

All the family Solicitors at Clapham & Collinge are members of Resolution. Neale Grearson is a trained collaborative lawyer bringing additional skills as part of his Resolution training. Caroline Mitchell is a member of the local Resolution Committee. Both are not just members of Resolution but wholeheartedly support the ethos and the need for the Resolution code and guidance on such things as drafting Divorce Petitions. We do not just pay "lip service" to these and the needs of our clients.

To find out more or discuss your individual requirements in further detail, our dedicated Family Law Solicitors are on hand to offer legal advice and support. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, Brooke and Sheringham offices.