Adultery or Unreasonable Behaviour – Which Is Best?
Divorce applications in the UK must give a reason for the breakdown of marriage. The most commonly given reasons are unreasonable behaviour followed by adultery.
But what do these actually mean – and how do they affect the divorce process?
What are the grounds for divorce?
There is only one valid reason or grounds for divorce: the irretrievable breakdown of the marriage.
In order to prove that a marriage has irretrievably broken down, currently one of the following five ‘facts’ must be given to initiate the divorce procedure:
- Unreasonable behaviour;
- Living apart for more than two years (with agreement); or
- Living apart for more than five years (without agreement).
NB: These facts will be replaced with ‘no-fault divorce’ which is planned to be introduced in England and Wales from autumn 2021.
Under the new system, none of these facts will need to be given in the divorce application. Instead, a ‘statement of irretrievable breakdown’ will need to be filed by either party. No-fault divorce will also remove the ability to contest the divorce.
What is adultery?
The legal meaning of adultery for purposes of divorce is where one spouse has sexual intercourse with someone else of the opposite sex.
The advantage of using adultery as a reason for divorce is that there is no need to prove that either spouse cheated on their partner (as long as it is not contested). But it’s important to bear a few things in mind:
- The petitioner (person applying for divorce) must submit their divorce petition within 6 months of becoming aware of the adultery.
- The person accused of adultery cannot petition for divorce using the reason of adultery (their spouse must be the petitioner).
- It is not possible to use adultery as a reason if the alleged affair was with someone of the same sex (ie it only applies to heterosexual forms of adultery).
Sometimes a spouse who is accused of adultery will try and contest the divorce if their husband or wife uses this as a reason on the divorce petition.
This may be a matter of principle (eg if they were falsely accused of having an affair).
What is unreasonable behaviour?
The legal meaning of unreasonable behaviour for the purposes of divorce is where a husband or wife behaved in such a way that their spouse cannot reasonably be expected to carry on living with them.
Forms of unreasonable behaviour can range from negligible omissions to serious acts of violence. Some of the most common examples include:
- Lack of socialising together
- Debt and financial recklessness
- Verbal abuse or domestic violence
- Drunkenness or drug abuse
- Lack of sex (or demanding too much sex)
- Obsessive hobbies (eg computer gaming)
As with adultery, a spouse who has been accused of unreasonable behaviour may be tempted to contest the divorce if they do not agree with the allegations.
However, there is an option on the acknowledgement of service form which essentially allows them to deny the allegations but not contest the divorce. This option allows a divorce to proceed smoothly which would otherwise be contested.
Often times, applicants that want a quick divorce are left with little option other than to file for divorce on the basis of unreasonable behaviour and hope it doesn’t antagonise their ex-partner.
If you’re in this situation then our friendly advisers at Divorce-Online are ready to help you achieve a fast, easy and smooth divorce.
When should I use adultery or unreasonable behaviour on the divorce application?
In the absence of no-fault divorce, divorcing couples sometimes tick the box of ‘adultery’ or ‘unreasonable behaviour’ on the application, even though there was no adultery or unreasonable behaviour, just to initiate the divorce process.
If one of the other options (ie. desertion, living apart for more than two years with an agreement, or living apart for more than five years) is not available, then adultery or unreasonable behaviour can be used as a ‘catch-all’ if both parties agree and are not going to contest the divorce.
If either party is likely to contest the divorce, it will generally be better to use ‘unreasonable behaviour’ unless there is clear evidence to prove adultery.
Otherwise, proving that a spouse has cheated can be extremely difficult and potentially even result in an emotionally turbulent court battle.
Since no-fault divorce is planned to come into force in autumn 2021, it may be better to wait for that if the divorce is likely to be contested, since the new legislation will dispense with the ability to contest divorce.