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What Exactly Is Unreasonable Behaviour?



There is no clear definition of how unreasonable your behaviour has to be, for your husband or wife to be able to divorce you.


The phrase “unreasonable behaviour” is not quite accurate.


The law (The Matrimonial Causes Act 1973) actually says that your husband/wife must have behaved in such a way that you cannot reasonably be expected to live with him/her. The difference is subtle, but important.

The authoritative analysis of this phrase is to be found in a case called Livingstone-Stallard, which dates from 1974. Mr and Mrs Livingstone Stallard, lived unhappily in what is described as a maisonette in Exmouth, Devon. Mrs Livingstone-Stallard wanted out, and so she presented a divorce petition containing a catalogue of fairly humdrum complaints about Mr Livingstone-Stallard’s grumpiness and poor domestic standards, and also that he constantly embarked on major alterations to their home which he never quite completed. There were no allegations of violence or serious neglect.


Ignoring Mrs Livingstone-Stallard’s evident unhappiness (which itself was amongst the aspects of his behaviour of which she complained) Mr Livingstone-Stallard decided to defend the petition, and the case came before a Mr Justice Dunn. He was called upon to consider the wording of an earlier Act of Parliament (the Divorce Reform Act 1965) but the wording of that Act was exactly the same as the present legislation.


Mr Justice Dunn famously said this,: –


“Coming back to my analogy of a direction to a jury, I ask myself the question “Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of circumstances and the characters and personalities of the parties?”

So there are two parts to it and it is largely subjective. On the one hand it is the opinion of a “right-thinking person” which counts (not just Mrs Livingstone-Stallard’s opinion) but on the other hand that person has to take into account what Mrs Livingstone Stallard thinks and her character and personality. What might acceptable to some people of a more stoical disposition may not be acceptable to her. Mrs Livingstone Stallard won her case and was unwittingly catapulted from obscurity to enduring fame, at least amongst lawyers and law students.


In practice the test is applied very lightly. The “right-thinking person” is in reality a Deputy District Judge whose day’s work it is to sit and read dozens of divorce petitions, and (whether rightly or not) s/he generally seems to assume that if someone feels strongly enough to present a divorce petition, it is probably not reasonable to expect them to continue to live with their husband/wife. So most divorce petitions brought on this basis tend to be relatively banal – half a dozen complaints about washing up, choice of television channel, and embarrassing behaviour in public will usually be enough.


But the vast majority of petitions are undefended so they never come under detailed scrutiny. Of the many hundreds of divorces which go through the courts each year, only a handful have become defended. Mr and Mrs Owens, whose case attracted some media attention in the last year or so, were one of the exceptions.


Mrs Owens’ divorce petition was not dissimilar to Mrs Livingstone-Stallard’s although I suspect the Owens were rather wealthier. There is an account of a public argument in an airport lounge about buying a present to take home to their housekeeper. I don’t think Mrs Livingstone-Stallard ever faced that dilemma, and equally I doubt that Mr Owens has ever done any DIY, or has left his socks soaking in the kitchen sink.


The case came before Judge Tolson QC sitting in the Central Family Court in London. Time was evidently limited, and not all of Mrs Owens complaints were investigated, but the judge concluded that, on the evidence he had heard he did not think that Mr Owens behaviour passed the Livingstone Stallard threshold. I have to say that conclusion is quite surprising, and seems out of profile with the general practice in the courts. Mrs Owens’ legal team evidently thought the same, because they took her case to the Court of Appeal and then to the Supreme Court. Mrs Owens was unsuccessful at both levels, which might suggest a tightening of judicial attitudes towards divorce. But actually the thrust of both decisions is that once the judge, who had heard the evidence, had found as a matter of fact that Mr Owens’ behaviour did not pass the test, the higher court has very limited scope to reverse that, even though other judges might have come to a different conclusion faced with the same evidence. So for lawyers Owens is more about the scope of a higher court to change the decisions of a lower court on appeal, than about divorce law as such.


And, all the signs are that practice in the family courts, at grassroots levels, has continued largely unchanged by the decision in Owens. Every day divorces are granted, on the basis of petitions which are less serious (and less well drafted) than the petition in that case.


So the upshot seems to be that your husband/wife’s behaviour doesn’t have to be very unreasonable at all, to enable you to get a divorce. But it is important to understand that when it comes to financial issues the legal landscape is very different.


In deciding a fair financial division between a divorcing husband and wife, the court can take account of the conduct of the parties “if that conduct is such that it would in the opinion of the court be inequitable to disregard it”. This phrase has come under scrutiny over the years, and it is clear that the sort of behaviour complained about by Mrs Livingstone’s and by Mrs Owens, would have no effect at all on the court’s decision here. Many of the cases the conduct complained about is effectively financial misconduct, one party saying that the other party has unwisely or intentionally wasted money which should not be allowed to reduce the settlement the other party receives. Those cases are quite finely balanced, and judicial opinion seems to vary. But when it comes to “non-financial misconduct” the cases seen to say fairly clearly that only the most serious misconduct, such as really brutal physical violence or (occasionally) sexual misconduct involving children, will have much effect on the outcome of the case.


John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.


We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.


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