5 facts of divorce

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5 facts of divorce

Matrimonial and Family Proceedings Act 1984- there is a 1 year bar to divorce. 

Matrimonial Causes Act 1973- s1(1)- petition may be presented on the ground of irretrievable breakdown. 

s1(2)- irretrievable breakdown can only be established by the petitioner proving one or more of the five facts-

  • a) adultery and the petitioner finds it intolerable to live with the respondent
  • b) unreasonable behaviour
  • c) desertion for a continuous period of at least two years
  • d) two years separation (with consent) 
  • e) five years separation (without consent) 

Richards v Richards- the marriage had broken down but the fact alleged wasnt satisfied. The divorce was not allowed. 

Buffrey v Buffrey- a decree was denied where the wife alleged the husband was insensitive and never took her out and they had nothing in common now the children left home. Not allowed. 

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Adultery

Two limbs- the act of adultery and that the petitioner must find it intolerable to live with the respondent. 

a) the act of adultery- 

Dennis v Dennis- must be between someone not married to the petitioner and of the opposite sex. Must be heterosexual intercourse. 

Redpath v Redpath- the act must be voluntary and not ****. 

b) the petitioner must find it intolerable to live with the respondent- 

Cleary v Cleary- the intolerability need not flow from the adultery. The test is subjective. 

The test for establishing intolerability is subjective- depends on the view of the petitioner.  Goodrich v Goodrich

To encourage reconcilliation s2(2) says that any period of 6 months living together after finding out about the adultery should be disregarded. Over 6 months acts as a complete bar to this ground.

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Unreasonable behaviour

Two limbs to unreasonable behaviour- the behaviour itself and the assertion that the petitioner cannot reasonably be expected to live with the respondent. 

a) the behaviour itself- Katz v Katz- the CoA established that the behaviour can be an act or ommission. 

Must prove that 'the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.' 

This ground sometimes can contain a catalogue of incidents in support of the allegation so they add up cumulatively to satisfy the court. In some cases a single serious incident may be enough. Remember it is not about the gravity of the behaviour but its effect. There must be some behaviour that means they cannot be expected to live together, not a mere moving apart.

Buffrey v Buffrey- a decree was denied where the wife alleged the husband was insensitive and never took her out and that they had nothing to talk about and nothing in common after the children left home. 

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Unreasonable behaviour

In some circumstances the conduct which is not directed at the marriage itself but which has serious ongoing effects on the petitioner will suffice. 

Carter Fea v Carter Fea- where the wife complained that her husband was incapable of managing his own affairs and she was faced with mounting debt due to his failure to take action in response to his financial difficulties. She was allowed the divorce. 

O'Neill v O'Neill- where the husbands DIY behaviour caused the wife so much stress that her health suffered. The final straw was when his renovation work included mixing cement in the living room and having no toilet door fo 8 months. He had also written to the wife's solicitor casting doubt on the paternity of the children which the CoA though of itself was sufficient to establish unreasonable behaviour. 

b) assertion that the petitioner cannot be reasonably expected to live with the respondent-Question of whether it is unreasonable for the petitioner to continue living with the respondent, not whether the behaviour is unreasonable per se. The court can take the personalities of the parties into account to decide whether any right thinking person would consider this particular petitioner could reasonably be expected to live with the respondent. 

Birch v Birch- personalities can be taken into account when considering if the behaviour is unreasonable for the petitioner to live with. Is the person particularly sensitive to the others behaviour? 

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Unreasonable behaviour

Bannister v Bannister- the test for unreasonable behaviour is its effect on the petitioner. 

Ash v Ash- the test to be applied in deciding whether it is reasonable to expect the petitioner to continue living with the respondent. 'Can this petitioner, with his or her character and personality, with his faults and other attributes, good and bad, and having regard to his or her behaviour during the marriage reasonably be expected to live with the respondent?' 

Objective test in Livingstone Stallard v Livingstone Stallard- 'would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole circumstances and the characters and personalities of the parties?' This was applied in O'Neill v O'Neill. 

Birch v Birch- is the person particularly sensitive to the others behaviour? 

Pheasant v Pheasant- the fact the husband's wife wouldnt give him the attention he craved didnt satisfy any fact. Although the marriage had clearly broken down, this hadnt been proved. 

Bradley v Bradley- plea for divorce allowed. W complained of repeated violence. She continued to live in matrimonial home with 6 children, sleeping in H's bed and cooking meals out of fear. 

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Unreasonable behaviour

CoA allowed W's divorce, she had remained with H because she had no option, not because it was the reasonable thing to expect. 

Under s2(3) if parties have lived with each other for 6 months or less after the date of the occurence of the final incident of unreasonable behaviour, this period will be disregarded. This is to promote reconcilliation. 

Both spouses may be guilty and both spouses may be granted a divorce on the unreasonable behaviour of the other- 

Wachtel v Wachtel- plead adultery and unreasonable behaviour. Wasn't essential to persuade the court that an association has resulted in sexual intercourse, for an association whcih may be more destructive of the relationship than a causal act of adultery can be proved under s2(1)(b).

The relevance of the mental health of the parties- have to decide whether to grant a decree where a respondent is not morally responsible for their behaviour. The court will recognise the strain the ill health can have on the other spouse. Granting a decree does not necessarily involve blameworthiness. 

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Unreasonable behaviour

Katz v Katz- despite making allowances for the husbands manic depression, the impact on the wife was held to be sufficiently serious to justify granting a decree. She was so distressed by the situation that she had attempted suicide. 

Richards v Richards- where the husband was very moody, sat staring into space, and had assaulted the wife on two occasions (one was very trivial) the court had held this was not sufficinet to grant a decree. 

Physical incapacity of one of the parties-

Thurlow v Thurlow- man divorced from bed ridden wife. Looked at the petitioner and the effect it had on him. Could he be fairly required to live with her? Rees held that in all cases concerning illness the court must take into account- 'all the circumstances including the disabilities and temperaments of the parties, the causes of the behaviour, and whether the causes were known or were not known to the petitioner, the absense of intention, the impact of it on the petitioner, and the family unit, its duration, and the prospects of cure and improvement in the future.' 

Where the period of living together after the behaviour is over 6 months, this must be taken into consideration but does not provide an automatic bar to the divorce. 

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Desertion for 2 years

s1(2)(c). Requirements- factual separation between the spouses for a continuous period and intention to remain permanently separated from the spouse. Used rarely because normally use two years separation ground instead. 

Factual separation for a continuous period- 

Exception by way of reconcilliation provision- s2(5).

Test- are the spouses living as two households or one? 

Pulford v Pulford- desertion was described as 'not the withdrawal from a place, but from a state of things.' Thus desertion can be established where there is a total cessation of cohabitation between the parties even though they remain under the same roof.

Hopes v Hopes- Denning said that a husband 'who shuts himself up in one or two rooms of his house and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated from the outer door of a flat'. The must live in two households not one. 

 

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Desertion for 2 years

Desertion should be for a period immediately proceeding the presentation of the petition. 

The deserting spouse must have intent to leave the marriage permanently. There must be no justification for the desertion. In circumstances where the behaviour of the spouse left behind can be called into question, 'constructive desertion' may be possible. This occurs when one spouse is forced out the household or feels compelled to leave. Then it is not the party who leaves that has deserted but the one who's actions resulted in the leaver leaving. To establish this the petitioner must show the behaviour was sufficiently serious to drive them out.

Lang v Lang- Lord Porter said the conduct leading to one spouse leaving must be 'grave and convincing.' 

Desertion can end by a spouse moving back in or the parties agreeing to separate. A period of up to 6 months cohabitation does not end the desertion but the period of failed reconcilliation must be added onto the two years needed to establish desertion. 

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Two year separation without consent

s1(2)(d). 

The meaning of living apart- a) physical separation- s2(6) 'a husband and wife shall be treated as living apart unless they are living with each other in the same household.'

Santos v Santos- the requirement of mental living apart was introduced in this case. It held that to establish living apart, not only must there be a physical separation, but there must also be a mental element of wishing to live apart as respects at least one of the spouses. Are they aware its come to an end and are just living together in the circumstances? 

Hopes v Hopes- Denning said that a husband 'who shuts himself up in one or two rooms of his house and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat.' To satisfy this test they must live in two households, not one. 

Mouncer v Mouncer- it was held the parties were not living apart because although they were on very bad terms and slept in separate rooms, they continued to eat meals together and in the company of their children. They enjoyed some communal life together. 

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Two year separation without consent

Hollens v Hollens- the husband and wife continued living in their two bedroomed council house but had not spoken or eaten together since a violent quarrel more than two years previously. Neither party had done anything for the other since the fight. This degree of separation was sufficient to satisfy the court that all common life between them had ceased and they were living apart.

b) mental element- it is not enough for the parties to be living apart. It must be accompanied by the belief of one of the parties that the marriage is over, even though this need not be communicated to the other. 

Santos v Santos.

Fuller v Fuller- has the consortium come to an end?

The separation must be continuous but note reconcilliation provisions of s2(5). However to facilitate reconcilliation the spouses are permitted to resume living together for one or more periods totalling up to 6 months without the continuity of the period being broken. Although such a period will not stop the time running, neither will it count towards the living apart time frame. 

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Two year separation without consent

The consent must be a) active and positive- Re McG v R.

b) can be withdrawn and c) may be conditional. 

Respondent must be fully aware of the implications of consenting- s2(7). 

Mason v Mason- a valid consent depends on whether the respondent is capable of understanding the nature of the consent, and appreciating the effect and result of expressing it. Husband had mental illness however he was able to understand the nature and effect of the consent and so it was valid to grant divorce. 

Five years separation with no consent- s1(2)(e)- parties lived apart for a continuous period of at least 5 years and has same requirements as two years separation. There is no consent needed. 

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Divorce procedure

The courts role is inquisitorial- s1(3) MCA. Santos v Santos.

Mark v Mark- a person can be habitually resident and domiciled in England and Wales, for the purposes including the issue of a divorce petition, even if their presence in the UK is unlawful. 

Pretty much all divorce is now done on paper. 

The divorce is granted in two stages- the decree nisi and the decree absolute. The marriage is only legally terminated after the absolute (comes 6 weeks after nisi). 

s3(1) MCA- bar on petitions for divorce within one year of marriage. This is an absolute bar. 

Discretionary bars to divorce-

s2(1) MCA- Parties have lived together for more than 6 months following the adultery- Biggs v Biggs and Wheatley 1977- they lived together over 6 months of cohabitation following knowledge of adultery. Court choose to grant the divorce anyway. 

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Discretionary bars to divorce

s5 MCA- for 5 years separation: Respondent would suffer such severe financial or other hardship that it would be wrong in the circumstances to grant a divorce. This is rarely used and rarely succeeds. Also called grave hardship. 

Talbot v Talbot- any financial hardship that stemmed from the marriage breakdown would not be increased by divorce as there were no pension rights to be lost. The hardship must come from the granting of divorce, not the relationship breakdown. 

Archer v Archer- s5 was intended to cover cases where a wife was being divorced against her will. In the majority of such cases, the property involved was modest, with the husbands pension being the major asset. The instant case was unusual as the W had a substantial captial and no income where the H had modest capital and substantial income. She would have to use capital if her pension from her husband ceased on his death. This was normal. There was no financial grave hardship. 

Banik v Banik- the wife was Hindu and argued she would be ostracised from the community if she was divorced. The court found that although she may suffer hardship, it wouldn't be grave hardship. This case does show that hardship doesnt have to be financial, although it failed here.

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Discretionary bars to divorce

Lee v Lee- children's hardship. Son was very ill and the wife gave round the clock care. Husband wanted them to sell homes and buy their own. The money wouldn't be enough for the wife to buy a house suitable for the ill child. Petition was dismissed for the child's welfare. 

s10(3) MCA- the court shall consider all the circumstances and under s10(2) can apply for their financial position after divorce to be considered. The court can refuse to make a decree absolute unless it is satisfied that 'the petitioner should not be required to make any financial provision for the respondents or that the financial provision made by the petitioner is reasonable and fair to the best that can be made in the circumstances.' 

Wickler v Wickler- information that was necessary would be how debts etc would be distributed. An application to grant a decree absolute can be resisted until the party seeking it had complied with orders for ancillary relief.

White v White- financial and non financial contributions should be seen as having equal worth. Where assets will satisfy the reasonable needs of the parties, the courts should consider why any departure from equal provision should take place. 

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Bars to divorce

Divorce (Religious Marriages) Act 2002- amends MCA by inserting s10A. s10(A) applies if a decree of divorce has been granted but not made absolute and the parties to the marriage concerned a) were married in accordance with i) the usages of the Jews or ii) any other prescribed religious usages and b) must co-operate if the marriage is to dissolved in accordance with those usages. 

Court can refuse to make a decree absolute until arrangements for a religious divorce have been made. (s10A(2) MCA). 

Alternative option- A v T- where, on an application for ancillary relief, the court decided that the parties cultural background was a dominant consideration, it should consider how the court of the parties native country would approach the case. They were both Muslims of Iranian origin but domiciled in England. They considered the approach of the Iranian court. 

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Judicial separation

s17 MCA: a petition may be presented on any fact mentioned in s1(2). 

Effect is that although the parties remain married, there is no legal obligation to cohabit. Can be done under 1 year of marriage. There is no need to prove irretrievable breakdown. If one of the facts is proven, the court must grant a decree which is immediate. They can later plead the same ground for divorce. (s4 MCA) Likely to be made where parties have religious views which prohibit divorce. Enables the court to make orders relating to financial provision for spouses. They are rare. 

Reconciliation- s6 and 7 MCA apply for the purpose of encouraging the reconciliation of the parties to proceedings for judicial separation. 

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Civil partnerships

Almost exactly the same as divorce for married couples.

S44(1) of the Civil Partnership Act 2004: ground for dissolution is that the civil partnership has broken down irritreivably which can only be proved by establishing- unreasonable behaviour, desertion, two year separation with consent, 5 year separation. 

Matt Lucas and Kevin McGee were the first gay divorce in 2009. 

Bar to dissolution- no petition to be presented before the end of 1 year. 

There is no ground for adultery. 

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