Notes on the procedures and bars of divorce law and the dissolution of a civil partnerships. Includes the aims of divorce, the facts and reforms of divorce law.
Divorce and Dissolution of Civil
Partnership
Aims of Divorce law
● Support institution of marriage
● Avoid exacerbating the bitterness between parties
● Enable remarriage, to reduce number of children born out of wedlock
Historical overview of grounds for divoirce
● Prior to 1857
○ Divoirce not available through the courts
● Matrimonial causes Act 1857
○ Regulated divorce procedures available from the court
○ Sole ground for divorce adultery
○ Women needed to prove adultery and aggravated circumstances
● 1923
○ Abolition of aggravated adultery requirement for women
○ Introduction of additional grounds:
■ Insanity
■ Cruelty
■ Dissertation of at least three years
● Divroce reform Act 1969
○ Liberalization of divorce law
○ Reflected society's attitudes towards an acceptance of divorce
● Divorce Reforms Act 1969
○ Ground for divorce: irretrievable breakdown of marriage
○ Five facts proving the breakdown
○ At least one must be proven
● Matrimonial Causes Act 1973
○ Consolidated DRA 1969
○ s1(1) - ground: irretrievable breakdown of marriage
○ s.1(2) - five facts of divorce
■ adultery
■ “unreasonable behavior”
■ two-years’ separation with consent to divorce
■ desertion
■ five-years’ separation
● Richards [1972]
○ Husband suffered from moodiness and insomnia
○ Wife saugh for divorce
○ Court accepted that the marriage had
, ○ It was not satisfied that the husband behaved in such a way that the wife
could not life with him
● Buffery [1988]
○ Divorce may not be grattened even if the marriage had been irritable broken
down
● Owens v Owens [2018]
○ Wife's allegations of unreasonable behavior was not accepted
The Facts
1. Adultery
○ S.1 (2) (a) - adultery and intolerability
○ A person cannot rely on their own adultery in order to divorce
○ Adultery : voluntary act o sexual intercoruce with a third party of the opposite
sex
○ Dennis [1955] 2 AII ER 51 - no adultery unless there is penetration
○ Homosexual intercource/sexual activity not involving intercourse do not
constiture adultery may not constitute ‘unreasonable behaviour’
○ If parties live together for more than 6 months after discovery of an act of
adultery, the petition cannot be based on that act.
2. ‘Unreasonable behavior’
○ “The respondent has behaved in such a way that the petition cannot
reasonably be expected to live with the respondent”
○ Objective test: ‘any right thinking person’
○ Living-Stallard [1974] 2 AII ER 766 - accumulation of trivial incidents rather
than one act
○ Subjective test
■ Birch [1992] 1 FLR: considere personalities of the parties in deciding if
the conduct was sufficient for the petitioner not to be able to live with
the respondent
○ The behavior does not need to be blameworthy - Katz [1972]AII ER 219
○ Pheasant [1972] 2 WLR 353 - courts are not too flexible
3. Desertion
○ s.1(2)(c) MCA 1973 - desertion
○ Grounds for application:
■ Factual separation
■ Intention by respondent to desert
■ No consent by petitioner to the desperation
■ Respondent had no just cause to desert
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