The examples of the husband’s unreasonable behaviour were deemed insufficient.and “at best flimsy”.

The Supreme Court has announced today that Mrs Owen’s appeal heard on 17 May 2018 at the Supreme Court has been dismissed and the Central Family Court’s decision to dismiss her divorce petition based on unreasonable behaviour has been upheld.

The wife’s divorce petition was issued on the fact of the husband’s unreasonable behaviour and that she could not reasonably be expected to live with him.  The husband defended the petition.

The current law is that the court has to determine whether the respondent did or did not do the behaviour alleged, to assess the effect of the behaviour upon that particular petitioner and to determine whether in the light of the behaviour and its effect on the petitioner whether it would be unreasonable to expect the petitioner to continue to live with the respondent.

The question is not whether the behaviour was unreasonable but whether the expectation of continued life together should be unreasonable.

Whilst the outcome is in keeping with the existing law, it has far-reaching consequences for those wishing to divorce and for those advising clients in these circumstances.

Divorce lawyers have traditionally performed a balancing act between drafting divorce petitions in such a way as not to inflame the situation and to discourage the respondent from defending a petition but including sufficient allegations of behaviour to satisfy a District Judge that it would be unreasonable for the petitioner to continue to live with the respondent.

Today’s outcome will give rise to further calls for a no fault divorce system to avoid the need to make allegations against the other party and apportion blame.  Whilst there are other facts available, such as two years separation with consent or adultery, if the respondent does not accept that the marriage is over and does not consent or admit adultery, the petitioner must wait 5 years for a divorce.  Is this acceptable in the fast-paced modern world in which we live?