Proving unreasonable behaviour in divorces is an incredibly complicated issue as the test for behaviour is, is somewhat objective and mostly subjective as the courts must evaluate the respondent’s behaviour and focus on it subjectively in light of the specific petitioner, as the court cannot pass moral judgments which is why we can gather Lady Justice Hallett was incredibly reluctant. There is also a time limit for unreasonable behaviour which means the married couple must have been separated for more than six months before they can petition for a divorce. Spouses may have a number of compatibility factors that bring them together and just as many factors that divide them as ones that unite them. Conduct is unimaginably subjective to individuals, depending entirely on their limits and principles. Which is a huge reason why numerous spouses, when it comes to petitioning for divorce, assert and use this fact, in order to determine that the respondent has acted in such a way that the petitioner cannot sensibly be relied upon by the court to live with the respondent. Behaviour, as mentioned previously is processed by others in particularly different forms and so unreasonable conduct can be a progression of events or a single occurrence, it could be absence of support or an excessive amount of pressure, it could be the lack of engagement or unnecessary attention which draws the end to a marriage. However legally, unreasonable behaviour is defined in Buffery v Buffery 1980 which states “can the petitioner be expected to live with this respondent, taking into account the kind of people they are and also whether there has been any provocation, deliberate or otherwise, for example through anti-social conduct or even illness”. In Birch v Birch where the petitioner argued that the behaviour of her husband influenced her gravely and it was subsequently subjective. it is the impact of the respondents conduct on the petitioner which is regarded, not whether the respondents conduct is unreasonable. The Owens case, could have been similar to the case of Livingston-Stallard v Livingston – Stallard which established that the behaviour could not have been trivial. As the spouse tormented and condemned his wife to where she had no certainty or confidence at all and succeeded in obtaining a divorce in court, this is a point of reference for contemporary marriages when the lead is inconsistent. As tormenting or constant criticism which may some way or another seem inconsequential in contrast with violence, needs to be precisely particular to demonstrate a general picture which is unacceptable as these components of conduct are a matter of fact. In Livingstone – Stallard, the occurrences independently were lacking, however displayed all together, a terrible picture of the family life, led the court to have no trouble in reaching the essential determination. Similarly, in the Owens v Owens case, the wife faced some trouble in proving that her incidents were more than simple married couple quarrels. Yet behaviour that is not acknowledged by the court is emotional dissatisfaction, sexual dissatisfaction, boredom and finally growing apart. Behaviour that is acknowledged to break down marriages and grant divorces quickly includes factors such as violence and, insensitivity, for example, on account of Bannister v Bannister 1980. The absence of correspondence or over the top unsociability, disregard, tormenting, constant criticism. Or finally, monetary irresponsibility.
The present position is that in England and Wales, divorce law relies upon the enactment and culture of more than 40 years. Current divorce law is incredibly hypocritical as one party must take procedures against the other on one of the fault based factors, so as to accomplish the divorce by consent; that as divorce law seems incredibly inappropriate as it encourages the idea for spouses to reprimand each other and for the respondent to cease from defending themselves from allegations in order to accomplish the decree, and that is unjust as individuals in such circumstances frequently express that they have acquired divorce by consent when this has just been accomplished by the respondent making the decision, not to defend. Is this not ironic? The MRA act demonstrates the need to bring minimum distress to the parties but focuses on the necessity of fault-based factors to allow a couple to play the blame game, especially when children are involved. Does this promote a good relationship between the parties or does it add fuel to the fire in cases where the respondent denies all allegations of unreasonable behaviour? The present framework is confrontation on the grounds that it is a piece of the adversarial arrangement of litigation, affected by the prohibitive history of the earlier centuries, and unavoidably requiring divorcing couples to base their applications for a decree on one of the three fault-based facts. However, a few solicitors, express that the structure of the statute might be adversarial, yet divorce is on demand as the manner by which statute works is that the spouses choose that they need a separation, they agree on which fact they will use, and which partner will be the petitioner and the allegations will be agreed by them and so the court will issue a decree in all cases. This will inevitably enable the parties to contain arguments in the fields of cash and property. The act controlled by the two parties to a marriage and their counsels to acquire the outcome that they need, and the strict interpretation of the statute allows this outcome without any abuse of the law.
The entire theory about no fault divorces, destroying the sanctity of marriage and how religion is most likely the greatest assurance in why there has been no reform. Could be debated to be an incorrect sweeping statement. Religion is not the motivation behind why there has been no reform regarding divorce, marriages have broken down since the Romans possessed Britain, the church encouraged separation from the most earliest of times. However, reform has kept on falling flat. Numerous academics continue to claim that King Henry VIII was to be blamed for such, because of his endeavours which slowed off the advancement of divorce. Divorces, were normal and so was gradual change. A law that determined this was the Clandestine Marriages Act 1753 which was a policy decision in public formalities to attest to the consent of the bride as women were being regularly constrained into marriage by men who desired property. Since the combination of the 1969 and 1970 act in the Matrimonial Causes Act 1973, the last culminating in part 2 of the FLA 1996, there has been no other change. Just attempts to make changes as in 1990, the Law Commission set out issues with divorce law and suggested a change. Which set out the action for a Section 2 of the Family Law Act 1996 that would have presented "no-blame divorce” and required the parties to a divorce to go to reconciliation meetings. In 2001, after a progression of attempts, the then Government reasoned that the arrangements for such were "unworkable". The applicable arrangements in section 2 have now been repealed. Yet commonly the main arguments against no fault-based divorces, tend to be of the sanctity of marriage being supported so the divorce rate continues to stay low. With the fear that if, there was to be a no-fault divorce system in place, it would be increasingly easier to get divorced and easier to break down families. Yet, as established earlier, divorces have been around for centuries, and were easily obtainable for a very long time. In fact, allegations of fault could be considered to be easier to abuse as Sir James Munby, in the Court of Appeal Decision in March 2017, on aspects of procedures being based on “hypocrisy and lack of intellectual honesty”.
In conclusion, I believe that arguments against no fault divorces such as supporting the institution and sacredness of marriage can be considered a statement that can easily be proven wrong when turning to history. While, no fault divorces could be stated as being a much easier way to divorce that may in fact, increase divorce rates. However, it could ease divorce into a much happier separation as Baroness Hale has suggested, fault can encourage people to accept blame in order to end marriage or do cause conflict. Therefore, I believe that divorce should progress and no fault divorces should be an option for those who wish to acquire a clean healthy end to their marriage especially when children are involved.