In Scotland there is only one ground for divorce: that the marriage has broken down irretrievably. Providing evidence of unreasonable behaviour is one of the four ways to establish the irretrievable breakdown of a marriage.
In a previous blog, we discussed the types of behaviour that may be considered unreasonable. Here we discuss some of the other factors that you should be aware of if you are considering raising an action for divorce based on unreasonable behaviour.
1. Perspective matters
When it comes to unreasonable behaviour it is the pursuer’s perspective of the behaviour that matters. The court will consider how the pursuer feels about the behaviour in question and the perspective of the defender is actually irrelevant. The court will look to understand the personality and personal circumstances of the pursuer and in effect, put themselves in the shoes of the pursuer.
Once the pursuer’s perspective is established, the court will then, and only then, objectively decide if it is reasonable for that particular person to remain married to the defender or not. In this sense it is a subjective test and not what the ordinary man in the street might think about the behaviour.
2. Timing is relevant
It is only behaviour that has occurred during the course of the marriage that is relevant. It does not matter that your spouse behaved in a way that you consider to be unreasonable before you were married.
3. Frequency and intent do not matter
An act, the failure to act, or the behaviour needs to be identified. The type of behaviour complained of need only happen once. It is also not necessary to show an intention by the defender to hurt or upset the party seeking divorce. The defender may have been mentally ill at the time, or oblivious to how their behaviour may impact their spouse. It does not matter. The court is only interested in the perspective of the person who finds the behaviour unreasonable.
4. The behaviour must link directly to the reason for divorce
It is however necessary to directly link the unreasonable behaviour to the reason that the pursuer is seeking divorce. The unreasonable behaviour must be the primary reason that the party is seeking to leave the marriage.
5. Potentially a high stakes strategy
Divorce on the ground of unreasonable behaviour can feel like the right choice from an emotional perspective. However, the cost of running this type of action can be more than just financial. The nature of the allegation of unreasonable behaviour makes it more likely that this will involve parties giving evidence in court and it is one of the grounds that is most likely to cause acrimony and distress between the parties going forward. If there are children of the marriage, this may be a factor to consider.
If you need advice about unreasonable behaviour or any aspect of divorce, we can help. Contact our team of divorce lawyers in Edinburgh and Glasgow to discuss your situation.