Divorce
OUTCOMES
1. Advise a client as to whether they can obtain a divorce and the appropriate fact to
use.
2. Demonstrate an understanding of the procedure for obtaining a divorce and draft the
appropriate documentation (appendix 3A)
3. Explain the significance of jurisdiction issues and advise a client appropriately.
One year rule- Matrimonial Causes Act 1973
s.3 MCA 1973 Parties must be married for one year before they can present a petition for
divorce.
Acts as a mechanism to avoid hasty decisions to end marriage. This is
principled upon the tradition of preserving the sanctity of marriage.
1 year rule cannot be waived BUT the parties can rely on grounds that
happened within the first year of marriage.
GROUNDS FOR DIVORCE:
MCA s.1(1)- Must demonstrate to the court that the marriage has broken down
irretrievably.
Irretrievable breakdown cannot be proved unless one of the five factors are met under
s.1(2) MCA 1973
There does not have to be a causal link between the conduct and the breakdown,
just that one of the factors has been proved (Owens v Owens)
Upon proving one of the 5 factors, the court must grant a decree Nisi if the facts
prove irretrievable breakdown under s.1(4). However, they will not be satisfied if
cohabitation has been longer than 6 months- moving from the process of aiming for
reconciliation.
S.6(1) The legal representative will be asked by the court whether they have
discussed with the petitioner the possibility of reconciliation. This is extended under
s.6(2) that gives the court the power to stay proceedings if there is reason to
believe that there is a reasonable possibility of reconciliation between the parties.
, Adultery and S.1(2)(a) respondent has committed adultery and the petitioner
intolerability finds it intolerable to live with the respondent
Page 28 Must show both element of adultery and intolerability
Not applicable to civil partnerships
s.1(2)(a)
s.1(6)MCA 1973
adultery is only committed between the respondent and a person of the
opposite sex. If same-sex will be intolerable behaviour
Defined as voluntary sexual intercourse between two persons of the
opposite sex, one or both of whom are married but not to each other.
Adultery proved or inferred
Confession by the respondent- common method where divorce is
undefended. Either by separate confession statement signed by R
or answering yes in the acknowledgement of service of the
petition- but must be signed by respondent personally.
Birth of a child where the husband is not the father
Further factors in textbook
Intolerability:
Does not have to show that the intolerability was due to the
adultery, just that it is not intolerable to live with respondent.
Subjective test- must show to the court that they as the petitioner
find it intolerable
Effect of cohabitation of the parties
If the respondent and petitioner cohabit for a period of over 6
months since petitioning- cannot rely on adultery s.2(1) MCA 1973
Time runs from when the petitioner is aware of the adultery
6 months can be made from separate periods, does not have to be
continuous
If less than 6 months- court disregards the cohabitation when
finding intolerability s.2(2)
Behaviour
s.1(2)(b) The respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent (s.1(2)(b)).
Behaviour is objectively assessed by the court and the effect it had
on the petitioner.
O’Neill v O’Neill- court must have regard to the individual
personalities and how that conduct would affect that individual.
Birch v Birch- the Husband’s behaviour had an impact on the wife
and her particular sensitive nature made it unreasonable for her to
continue to live with him.
Question of fact in each case, does not necessarily have to be
grave and weighty behaviour
In an undefended case- court will usually look for 3-6 examples of
behaviour
Effect of cohabitation on behaviour
If they have cohabited for a period of 6 months or less must be
disregarded when assessing the behaviour s.2(3)
Longer than 6 months IS NOT A BAR but will be taken into
consideration
Longer the cohabitation the less likely the behaviour will be a
ground to rely on
Must show that the cohabitation was not a real choice (Bradley v
OUTCOMES
1. Advise a client as to whether they can obtain a divorce and the appropriate fact to
use.
2. Demonstrate an understanding of the procedure for obtaining a divorce and draft the
appropriate documentation (appendix 3A)
3. Explain the significance of jurisdiction issues and advise a client appropriately.
One year rule- Matrimonial Causes Act 1973
s.3 MCA 1973 Parties must be married for one year before they can present a petition for
divorce.
Acts as a mechanism to avoid hasty decisions to end marriage. This is
principled upon the tradition of preserving the sanctity of marriage.
1 year rule cannot be waived BUT the parties can rely on grounds that
happened within the first year of marriage.
GROUNDS FOR DIVORCE:
MCA s.1(1)- Must demonstrate to the court that the marriage has broken down
irretrievably.
Irretrievable breakdown cannot be proved unless one of the five factors are met under
s.1(2) MCA 1973
There does not have to be a causal link between the conduct and the breakdown,
just that one of the factors has been proved (Owens v Owens)
Upon proving one of the 5 factors, the court must grant a decree Nisi if the facts
prove irretrievable breakdown under s.1(4). However, they will not be satisfied if
cohabitation has been longer than 6 months- moving from the process of aiming for
reconciliation.
S.6(1) The legal representative will be asked by the court whether they have
discussed with the petitioner the possibility of reconciliation. This is extended under
s.6(2) that gives the court the power to stay proceedings if there is reason to
believe that there is a reasonable possibility of reconciliation between the parties.
, Adultery and S.1(2)(a) respondent has committed adultery and the petitioner
intolerability finds it intolerable to live with the respondent
Page 28 Must show both element of adultery and intolerability
Not applicable to civil partnerships
s.1(2)(a)
s.1(6)MCA 1973
adultery is only committed between the respondent and a person of the
opposite sex. If same-sex will be intolerable behaviour
Defined as voluntary sexual intercourse between two persons of the
opposite sex, one or both of whom are married but not to each other.
Adultery proved or inferred
Confession by the respondent- common method where divorce is
undefended. Either by separate confession statement signed by R
or answering yes in the acknowledgement of service of the
petition- but must be signed by respondent personally.
Birth of a child where the husband is not the father
Further factors in textbook
Intolerability:
Does not have to show that the intolerability was due to the
adultery, just that it is not intolerable to live with respondent.
Subjective test- must show to the court that they as the petitioner
find it intolerable
Effect of cohabitation of the parties
If the respondent and petitioner cohabit for a period of over 6
months since petitioning- cannot rely on adultery s.2(1) MCA 1973
Time runs from when the petitioner is aware of the adultery
6 months can be made from separate periods, does not have to be
continuous
If less than 6 months- court disregards the cohabitation when
finding intolerability s.2(2)
Behaviour
s.1(2)(b) The respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent (s.1(2)(b)).
Behaviour is objectively assessed by the court and the effect it had
on the petitioner.
O’Neill v O’Neill- court must have regard to the individual
personalities and how that conduct would affect that individual.
Birch v Birch- the Husband’s behaviour had an impact on the wife
and her particular sensitive nature made it unreasonable for her to
continue to live with him.
Question of fact in each case, does not necessarily have to be
grave and weighty behaviour
In an undefended case- court will usually look for 3-6 examples of
behaviour
Effect of cohabitation on behaviour
If they have cohabited for a period of 6 months or less must be
disregarded when assessing the behaviour s.2(3)
Longer than 6 months IS NOT A BAR but will be taken into
consideration
Longer the cohabitation the less likely the behaviour will be a
ground to rely on
Must show that the cohabitation was not a real choice (Bradley v
