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We regularly receive enquiries from people who have separated from their spouses and, whilst they remain close friends, have been living apart for several months and have amicably agreed to a divorce. They have also decided that they would like to begin the process and file for divorce but, as they have not yet been separated for two years, are unable to file on a non-fault based ground and will need to apportion blame to one party as a result.

Under such circumstances, one party will need to file for a divorce on the basis of the other’s adultery or unreasonable behaviour. As couples that find themselves in this situation have very rarely separated as a result of one party having been unfaithful, this leaves them with two choices: wait until they have been living separately for two years or file on the grounds of unreasonable behaviour.

This can prove to be quite the conundrum. The couple in question do not want to wait for several months before they can file but, at the same time, they also recognise that neither party was exclusively to blame for the breakdown of their marriage and therefore don’t want to apportion blame to their spouse. What, then, should a couple that find themselves in this situation do? Whilst we cannot answer this, we can reveal a few facts that might just help people that find themselves in this situation to arrive at the decision that’s right for them.

The first and perhaps most important thing to note is that whilst filing on the grounds of unreasonable behaviour will result in one spouse being blamed for the breakdown of the marriage they will suffer no detriment as a result of this. It is often assumed that the party that is blamed will, for example, be entitled to fewer of the couple’s communal assets, but this is simply not the case as the grounds for divorce do not influence financial settlements. Furthermore, if the couple are able to agree on how their assets should be divided then they can have their agreement made final and legally binding by obtaining a Consent Order.

Also relevant is the fact that unreasonable behaviour is not solely behaviour that could be described as abhorrent. In fact, some of the most common examples include fairly minor indiscretions such as failing to provide affection, being uncommunicative and regularly working late; all of which are perfectly acceptable examples. It should also be added that none of the examples cited within the paperwork will ever be made public.

Still, this does not change the fact that couples are generally reluctant to use the ground of unreasonable behaviour as they feel that it will damage the still positive relationship that they enjoy with their former partner and, ultimately, whilst this ground can and probably should be utilised if both parties are content to do so, it is best avoided if this is not the case.