Unreasonable Behaviour

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This is the most common ground for divorce nowadays, and the types of behaviour regarded as unreasonable are very varied.

Ash v Ash [1972] 1 All ER 582, Bagnall J
W petitioned for divorce on the grounds of H's alcoholism and violence towards her. Granting the petition, the judge said the test was whether the particular petitioner could reasonably be expected to live with the respondent: thus, for example, a violent petitioner can reasonably be expected to live with a violent respondent, an alcoholic petitioner with a respondent similarly addicted, or or a flirtatious husband with an equally susceptible wife.

Pheasant v Pheasant [1972] 1 All ER 587, Ormrod J
H petitioned for divorce under s.1(2)(b). He did not seek to establish any serious criticism of W's conduct or behaviour, but claimed she had not been able to give him the spontaneous, demonstrative affection he craved and that it was impossible for him to live with W any longer. Dismissing H's petition, the judge said there was nothing in W's behaviour that could be regarded as a breach on her part of any of the obligations of the married state or as effectively contributing to the break-up of the marriage.

Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766, Dunn J
H was 56 and W was 24 when they married; H was self-opinionated and treated W not as a wife but as a rather stupid child. He criticised her behaviour, her way of life, her friends, her cooking and even her dancing; he complained of her leaving her underclothes soaking overnight in the sink, even though he did the same himself, and he became angry when she offered sherry to a photographer who visited the house while he was out. After a violent argument, W left the home and successfully petitioned for divorce under s.1(2)(b).

O'Neill v O'Neill [1975] 3 All ER 289, CA
H embarked on major do-it-yourself repairs to the matrimonial home; he removed floorboards, mixed cement in the living room, and removed the lavatory door for some eight months. W was consequently embarrassed to have visitors, and she and their 14-year-old daughter D found it embarrassing to use the lavatory. After two years, W and D moved out, and W petitioned for divorce on the grounds of H's behaviour; H's reply (to W's solicitors) contained allegations that the children were by some other man. The Court of Appeal, reversing the trial judge, granted a decree nisi; the reply alone showed how badly the marriage had broken down.

Dowden v Dowden (1978) 8 Fam Law 106, CA
W petitioned for divorce on the grounds of H's behaviour: he was uninterested in sex, she said, and their physical sex was very brief and occurred only about once a month. The judge refused a decree and the Court of Appeal agreed: a low sex drive cannot in itself be regarded as unreasonable behaviour.

Mason v Mason (1980) 11 Fam Law 143, CA
After five years' marriage W refused to have sex with H because she was frightened of becoming pregnant; when H had a vasectomy W agreed to sex about once a week. Three months later H left to live with another woman, and obtained a decree nisi on the grounds that W had behaved unreasonably. Discharging the decree, Ormrod LJ said it seemed impossible to say that a limit of once a week was unreasonable.

Bannister v Bannister (1980) 10 Fam Law 240, CA
W petitioned for divorce on the grounds of H's unreasonable behaviour. He had not taken her out for two years, he himself stayed out at night without telling her where he was going, he did not speak to her at all unless it was unavoidable, and he generally led an independent life so far as possible. Allowing W's appeal against the judge's refusal of her petition, Ormrod LJ said the phrase "unreasonable behaviour" was a convenient but misleading shorthand. The test was not whether H's behaviour was unreasonable in itself, but whether it was such that W could not reasonably be expected to continue living with him.

Bergin v Bergin [1983] 1 All ER 905, DC
W sought a maintenance order on the grounds that she could not reasonably be expected to live with H. The evidence was that on at least three occasions H had blacked her eye and cut her face, and that she eventually left home when H started throwing furniture around shortly after W became pregnant. The magistrates decided that W was not in fear and refused the order, but the Divisional Court of the Familiy Division allowed W's appeal. Heilbronn J said the magistrates should have adopted the approach of Dunn J in Livingstone-Stallard, approved by the Court of Appeal in O'Neill, and asked themselves whether any right-thinking person would come to the conclusion that this husband had behaved in such a way that this wife could not reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties.

"Unreasonable behaviour" does not necessarily involve moral culpability on the respondent's part, particularly in cases of mental illness.

Katz v Katz [1972] 3 All ER 219, Baker P
After thirteen years' marriage H began to show signs of mental illness. He was admitted to a mental hospital, and although the treatment showed some benefit he blamed W for sending him there and eventually drove her to attempt suicide. When he received a copy of W's petition for divorce he treated it as a joke and read it out to their children. Granting the decree sought, the judge said the test was no longer whether H was guilty of the matrimonial offence of cruelty, but whether his behaviour (for whatever reason) was such that W could not reasonably be expected to live with him.

Thurlow v Thurlow [1975] 2 All ER 979, Rees J
W suffered from various neurological disorders; she was unable to do housework and was incontinent, and as her condition deteriorated she became aggressive and destructive. H petitioned for divorce on the grounds of her behaviour, and the judge granted a decree nisi. It was not enough for H to show that he found it intolerable to live with W, he said. H must also show that this situation was the result of W's behaviour, but this could include behaviour that was involuntary and stemmed from mental or physical illness or injury.

Carter Fea v Carter Fea (1987) 17 Fam Law 131, CA
W sought a divorce because of H's financial irresponsibility, which were affecting her mental and physical health. The judge granted a decree nisi and this was upheld on appeal: the Court of Appeal said mere financial difficulties would rarely be enough on their own, but in the instant case the judge had looked very carefully at the particular facts and his decision could not be faulted.

It is not clear whether adultery can be regarded as behaviour justifying a petition under this rather than the previous subsection.

Wachtel v Wachtel (1972) Times 1/8/72, Ormrod J
After ten years of marital difficulties, W formed a relationship with a man M. H petitioned for divorce under s.1(2)(a), and (with the leave of the court) subsequently added s.1(2)(b) as an alternative. The evidence suggested that W and M had not actually had sex, said the judge, but the closeness of the association was such that H could not reasonably be expected to continue living with W. He therefore granted a decree on this ground rather than on the ground of adultery.

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