Less than 1% of people getting divorced will get to a court hearing where they will need to prove to a judge that their other half has committed ‘unreasonable behaviour’.

You are most unlikely, therefore, not to need to produce any proof, ever.

What will make the need for proof even more remote is that the law in relation to divorce is likely to change in the next year or two to become ‘no fault’, which will mean that people can divorce after a short cooling-off period without needing to accuse the other half of anything at all.

Why might you need proof at all? The current law is based on a statute that went through parliament in the early 1970s. At that time divorce was far less common and was much harder to achieve. Unless someone could prove adultery, if they wanted to get divorced without waiting 2+ years, they had to accuse the other spouse of ‘unreasonable behaviour’. The case would be treated like any other piece of litigation: both sides would file evidence with the court and there would potentially be a trial before a judge who would then decide whether one spouse was guilty of unreasonable behaviour.

Society has changed since the 1970s and so has the way that judges interpret the same law. They no longer really want to see people in court arguing about whether their marriage really has broken down or not. As judges cannot change the law itself, they can only change the way they interpret it. The judges have therefore, over the years and tens of years, slowly reinterpreted the same law by lowering the threshold for finding a verdict of unreasonable behaviour.

Examples of unreasonable behaviour wording

Particulars that are now sufficient to form part of a divorce petition based on unreasonable behaviour can include ‘accusations’ such as:

“she worked so hard that she was rarely at home, leaving me feeling lonely

“He led a social life within which I was not sufficiently included and so felt emotionally isolated”.

So the bar for unreasonable behaviour for a Court is so low now that no one would sensibly think of defending a divorce based on unreasonable behaviour, because they would be almost certain to lose. Indeed, there has been only one reported case in the last ten years of someone defending an unreasonable behaviour divorce petition successfully and it was so unusual that it made the newspapers over and over again.

Even then, in the light of that single case, the Courts have loosened their approach further, and it seems even more unlikely that the courts will permit a repeat of that successful defence – the courts really don’t have the resources to spend time ruling on the breakdown of marriages when there are more important and difficult family situations to resolve (for example, the care of the children or medical treatment or issues of safety or abuse).

The best advice is to prepare an unreasonable behaviour divorce petition with as mild a set of (4-5) examples/particulars – so that the person against whom the petition is aimed has the least amount of material about which to be upset. The judge hardly needs anything on which to approve the divorce and if you have to have a fight with your spouse, it would be preferable to have it about something worth fighting about, rather than the pointless contents of a divorce petition that no one except that judge is ever likely to read.

That way, you won’t ever even have to think about proof of unreasonable behaviour, and can instead concentrate on the things that matter – like building a new chapter of your life.