Failing to wash up the dishes, a few too many drinks at the pub and arguing about directions may be part of many typical marital ups and downs. When it comes to divorce proceedings, these scenarios can qualify as a ground for divorce as ‘unreasonable behaviours’. In the very recent divorce of 51-year-old Nalini Howell from her 60-year-old husband Mark, an argument about poor map reading skills when the couple got lost on their way to a wine-tasting in Burgundy was held to be sufficient unreasonable behaviour to justify the granting of a decree nisi. Mark Howell opposed the grounds of divorce and argued that the row lasted only a few minutes but was the basis of the wife’s application. Despite Mark Howell’s assertions that theirs was a long and loving marriage that could continue despite the odd marital tiff, Lord Justice Thorpe decided that the marriage had irretrievably broken down. Mrs Howell later said that the marriage had broken down earlier and that the trip to Burgundy was a last ditch attempt to see if the marriage could work.

There is only one ground for divorce in England & Wales i.e. “irretrievable breakdown” of the marriage but this breakdown must be proved by evidence of one of five “facts”:-

  1. Adultery
  2. Unreasonable behaviour
  3. Desertion
  4. Two years’ separation with consent
  5. Five years’ separation without consent

Of these, unreasonable behaviour is the most popular ‘fact’ for irretrievable breakdown.

Fairly insignificant and ‘normal’ behaviours can be deemed unreasonable behaviour. The courts look at the cases subjectively. Typical examples of unreasonable behaviour include lack of marital affection, too little marital sex, and on the other hand too much sex can be unreasonable (e.g. having sex 7 times per night every night). Cases vary from the unpleasant, such as a husband picking his toenails, to the mundane, such as a spouse wanting to prepare healthy, nutritious meals.

The courts adopt a flexible attitude to interpreting behaviour as ‘unreasonable’. Clearly, there will be cases when the couples drift apart and wish to divorce without satisfying the facts of separation, desertion or adultery. In those cases, arguing unreasonable behaviour may be the best option for securing a divorce. Unfortunately, this means arguing that one party is at fault, and risks causing offence and bad feeling between parties. In a recent case Susan Rae, a policewoman, argued against her husband’s decree nisi for unreasonable behaviour saying that their arguments did not constitute ‘unreasonable’ and were part of normal marital squabbling. She was keen to point out that both parties still liked each other. In the case, Lord Justice Thorpe lamented the fact divorce law means one spouse or the other must be shown to be at fault and that the marriage had to be dissected in such a painful way.

On 24 March 2012 Sir Nicholas Wall, the then President of the Family Division, said in his speech at the annual conference of Resolution (an organisation of family lawyers that promotes dealing with family matters in a non confrontational way) that he believes no fault divorce should be introduced in England and Wales.

Until this is the case, unreasonable behaviour will continue to be popular with petitioners and petty arguments about, for example, map reading will continue to be cited as a basis for those seeking a divorce.

Most Resolution lawyers are in favour of no fault divorce. However whilst the present law stands Resolution lawyers try and take the heat of divorce proceedings by ensuring allegations are as mild as possible and that a draft petition is sent to the other party for approval prior to issuing the proceedings in court.