Divorce notes, including Matrimonial Causes Act, procedure, ground and facts, defences, bars, decree nisi and absolute, dissolving civil partnerships, judicial separation, decree of presumption of death and reform of divorce law, from the family law elective module at City university
Causes of divorce
Married as a teenager, being previously married, having lower level of education, having children
from previous relationship, have a parent separate, living together before marriage
Growing apart, adultery, violence, money issues, financially possible for women less dependent
Increased life expectancy affects divorce rate now longer, so now more divorce before death
Increased work pressures, less time spend with family leads to marital breakdown
MATRIMONIAL CAUSES ACT 1973 (Present law on divorce)
Background: before 1857 the ecclesiastical (church) courts determined law, so not available
through courts but church, only form of divorce was by Act of Parliament but very expensive –
MCA 1857 first Act to create alternative created divorce procedure through courts
Want to make divorce easier as couples whose marriage failed forced to form relationships
outside marriage so more children born to unmarried parents so to liberalise the law
Parliament not adopt all Law Commission’s proposals, Divorce Reform Act 1969 = marriage
irretrievable broken down (to prove have 5 facts) divorce law consolidated by MCA 1973
FAMILY LAW ACT 1996 HAS BEEN PASSED but lord chancellor announced NOT IMPLEMENTED
so present law strange, MCA 1973 is present but Parliament shows needs for reform
MCA 1937 had adultery, cruelty and desertion 1973 Act consolidated similar offences
PROCEDURE (MCA 1973)
The ‘special procedure’ – before need hearing petitioner open court evidence by witnesses – now
special procedure: petitioner lodge court grounds, statement arrangement children + affidavit for
truth – then before district judge pronounce decree (now done by court administrator, not a judge)
No attempt to ensure petition is true – petition may entirely false, no need to prove unless
respondent defends divorce defending divorce lawyers reluctant
Even when defended, most defences unsuccessful, but procedure argued increase bitterness
Divorce decree – 2 stages – decree nisi first pronounced, then decree absolute declared – divorce
does not take effect until decree absolute, after 6weeks of decree nisi can apply for absolute
If petitioner fails apply then respondent apply decree absolute 3months + 6 weeks time appeal
GROUND FOR DIVORCE: 1 ground s.1(1) MCA ‘marriage irretrievably broken down’, prove 1 of 5
facts s.1(2), even if 1 fact made, and court see marriage not irretrievably broke down= not granted
Note: s.1(1) fact (‘irretrievable breakdown of marriage’) + 1ground simultaneously proved
1. RESPONDENT’S ADULTERY (s.1(2)(a)): ‘adultery + petitioner intolerable live with respondent’;
s.1(6) ‘respondent voluntary act sexual intercourse with opposite sex constitute adultery’
(petitioner cannot rely on own adultery, restricted to opposite sex and intolerable to live)
S.2(1): if parties live together for more than 6months after adultery act= shows forgiveness
Cleary v Cleary: wife commit, husband forgave, reconciled, but left again= can divorce
homosexual sexual activity not adultery but may be unreasonable behaviour
If respondent defends petition and denies, petitioner prove e.g. court see any opportunity
2. UNREASONABLE BEHAVIOUR (s.1(2)(b)): ‘respondent behaved in such a way petitioner not
reasonably expected to live with respondent’ e.g. verbal/physical abuse, commit crime
Objective test: ‘any right thinking person’ see not expect live with respondent
Livingstone-Stallard: granted for constant criticisms by husband, continuously rude
So court will look at personality of parties to see if conduct sufficient
Birch: court consider personalities of parties – here wife very sensitive
E.g. domestic violence, wide range of conduct or series of incidents – e.g. internet chats
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, Law Commission: ‘any spouse assemble list, taken out of context, present as unreasonable’
Must be unreasonable, but no need respondent to be blameworthy
Katz: husband develop mental health issues, abusive e.g. called wife trampno need blame
Pheasant: husband petition wife not show spontaneous emotion, held not unreasonable
Spouses live together 6months after last incidentcourt take into account see expect to live
Owens v Owens: Wife claim husband reprimanded her in front other people, not constitute
behaviour not live with him, minimum threshold reasonable behaviour
3. RESPONDENT’S DESERTION (s.1(2)(c)): ‘deserted petitioner continuous period at least 2yrs’
Desertion= unjustifiable withdrawal from cohabitation, without consent of remaining spouse
and with intent of being separated permanently, if desertion justifiable cannot rely on
E.g. justifiable for wife to leave when husband got ‘second wife’
Qureshi: Bangladeshi husband went Bangladesh, bought back a second wife, so decided to live
apart but did not want to be divorceddesertion justified, cannot rely on
Possible to use 2yrs separation with consent to divorce so desertion rarely used
4. 2YRS’ SEPARATION WITH RESPONDENT’S CONSENT TO DIVORCE (s.1(2)(d))
‘Lived apart continuous period at least 2 years... respondent consents to decree granted’
Law accepted divorce can be by consent without fault-basedmost common fact
S.2(6): ‘couple treated as living apart unless living with each other in same household’
Possible to live apart in same accommodation e.g. living in separate lives
Hollens: couple lived in house but did not speak, eat or sleep togetherapart
Mouncer: spouses at together, spoke to each other not living apart
Santos: physically apart + not need be mutual, nor communicated
s.2(5) permits spouses to resume living together for 1 or more periods totalling 6months, such
period not count towards 2yrs living apart, but will not stop the period running
5. 5YRS’ SEPARATION (s.1(2)(e)) ‘ have lived apart for continuous period at least 5 years’
Allows divorce against a spouse without consent or proof of wrongdoing
If use, defence available: grave financial or other hardship for respondent + wrong in all
circumstances to dissolve marriage
DEFENCES TO PETITIONS
If 5yrs separation – s.5 MCA 1973 gives defence result in grave financial or other hardship to
respondent and be wrong in all circumstances
o Archer v Archer: wife had assets, court refused suffer grave financial hardship if divorce granted
o Generally court reluctant to use s.5 even if divorce causes financial losses or social ostracism ,
not enough to just show financial hardship, also wrong in all circumstances to grant decree
If petition based on 2 or 5yrs’ separation grounds then decree absolute should not be made
unless courts satisfied petitioner should not be required to make financial provision for
respondent, or that financial provision made by petitioner is reasonable + fair
s.9(2): 3months passed make decree nisi + petitioner not applied absolute then respondent apply
decree nisi to absolute –court can refuse respondent’s application appropriate all circumstances
o O v O (Jewish Divorce): respondent husband refused supply wife a get required recognised
Jewish, wife refused absolute, respondent husband applied s.9(2) court refuse supply get
Under Divorce (Religious Marriages) Act 2002 court refuse absolute until religious divorce made
Under original MCA 1973 where couple had children of the family under 16, when considering a
decree nisi, consider proposals for future of child – but now repealed – now trust on parents
BARS TO DIVORCE
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, s.3 MCA: confirms 1yr bar to divorce (before was 3yrs) cannot divorce unless married 1yr – if
less than 1yr can get marriage annulled or seek judicial separation
s.5 MCA: Where 5years’ separation, court can refuse grant if suffer financial or other hardship or
wrong in all circumstances to grant divorce
s.12 MCA: allows court make order to make divorce granted once couple arranged for marriage
to be dissolved under their religion if a party refuses religious divorce, court might refuse legal
s.10 MCA: bar respondent rely on 2/5yrs separation financial arrangements reasonable + fair
s.41 MCA: Court not make decree absolute exceptional circumstances to make order for children
Approbation bar (s.2(3): spouse continue living together despite behaviour invoked for divorce – will
be disregarded if for period for 6 months or less
DECREE NISI & DECREE ABSOLUTE (s.9 MCA)
First a decree nisi is pronounced (after nisi can apply for decree absolute)
Provisional, comes into effect after it has been made absolute
Allows for appeals against it to be lodged before the decree absolute is declared
Decree absolute (final decree) is declared subsequently
Petitioner can apply for a decree absolute any time after 6weeks from decree nisi
Respondent can apply decree absolute after 3months earliest date petitioner could have applied
The divorce does not take effect until the decree absolute
Re Collins: still a spouse after decree nisi, died before made decree absolute, so assets went to
husband instead of children under rules of intestacy
DISSOLVING A CIVIL PARTNERSHIP (CPA 2004, s.44)
When civil partnership comes to end, can dissolve law on dissolution almost same as divorce, has
ground that civil partnership irretrievably broken down (prove by ¼ facts) – just no adultery (legal
definition is heterosexual intercourse)
-s.44 (1yr temporal bar), s.45 (cannot rely on unreasonable act if 6months cohabit after), s.47
(refusal of dissolution in 5yr separation cases on ground of grave hardship)
JUDICIAL SEPARATION (s.17 MCA 1973) removes any obligation to live as spouses
Formally recognised as living apart, but marriage continues and parties cannot remarry
Petitioner must prove 1/5 facts, but not need irretrievable breakdown
Relieves the petitioner from the obligation to continue living with the respondent
Does not end the marriage
In case of death, the surviving spouse will not be entitled to succeed on intestacy
On grant of the decree, courts can make orders for ancillary relief
DECREE OF PRESUMPTION OF DEATH (Presumption of Death Act 2013)
If one spouse goes missing and is thought dead
-Reasonable grounds for supposing death
-Spouse has not been seen for a continuous period of at least 7 years
-The petitioner must have made reasonable enquiries similar to former s. 19 MCA 1973 but enables
other close family members to petition + declaration available for the purposes of all procedures
So can enter new marriage, later marriage will remain valid even if first spouse re-appears
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