Unreasonable behaviour (Procedure)
If you petition for divorce on the basis of your spouse’s unreasonable behaviour but go on living together after you have filed your divorce petition, the court will disregard the fact that you have gone on living together. It is still possible for the court to decide that “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent”. However if you live together for six months or more after the most recent incident of unreasonable behaviour that you allege in your petition, you are considered to have condoned the unreasonable behaviour and you will not get your divorce.
Usually the petitioner doesn’t rely on a list of incidents with specific dates. Such incidents may be included in the petition, but as examples of unreasonable behaviour which is still going on. This gets round the problem because, if the behaviour is continuing, the six month period never starts to run.
If you want to satisfy the court that for the purposes of the ‘six months rule’, you and your spouse have actually separated even though you are living at the same address, you will have to separate your lives completely. You may be required to explain on oath in an affidavit exactly what the living arrangements are. Unless you can show that your lives are completely separate in every respect, you may not get your divorce. Merely sleeping apart is not enough – you should not do anything together, even for example having the occasional meal together for the sake of the children or out of a wish to be civilised about the whole business.
If possible, a divorcing couple should try to agree in advance the text of the ‘Particulars of Unreasonable Behaviour’ part of the petition. This is a reliable way of avoiding the acrimony that can result if the respondent doesn’t see the particulars until (s)he receives the petition from the court. It often makes it easier to agree on finances and the arrangements for the children, which can only be a good thing.
If you petition on the basis of your spouse’s unreasonable behaviour, you don’t need their active cooperation to get your divorce. If they fail to tell the court that they have received the divorce papers (by completing, signing and returning to the court the ‘acknowledgement of service’ form that they have received with the petition), you can arrange for the papers to be served personally. The process server hands the papers to your spouse then swears an affidavit giving the details of when and where service took place and explaining how he knew he was serving the right person. When you come to apply for decree nisi, you rely on the ‘affidavit of service’ instead of producing a copy of the acknowledgement of service form and identifying your spouse’s signature on the form.