Summary Divorce in Family Law

Divorce
Grounds for Divorce
• The only ground for divorce is that the marriage has broken down irretrievably
• Matrimonial Causes Act 1973 s1(1) – a petition for divorce may be presented
to the court by either party to a marriage on the ground that the marriage has
broken down irretrievably
• MCA s1(3) – On a petition for divorce it shall be the duty of the court to
inquire, so far as it reasonably can, into the facts alleged by the petitioner and
into any facts alleged by the respondent
• MCA s1(4) – unless the court is satisfied on the evidence that the marriage
has not broken down irretrievably, it shall subject to s5, grant a decree of
divorce
The Five Facts
• S1(2) – five facts:
(a) The respondent has committed adulty and the petitioner finds it intolerable
to live with the respondent;
(b) That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent
(c) That the respondent has disserted the petitioner for a continuous period of
at least 2 years immediately preceding the presentation of the petition;
(d) That the parties to the marriage have lived apart for a continuous period of
at least 2 years preceding the presentation of the petition, and the
respondent consents to the decree being granted
(e) That the parties to the marriage have lived apart for a continuous period of
at least 5 years immediately preceding the presentation of the petition
• Overall, for a divorce to be granted, the marriage must have irretrievably
broken down and one of the five facts must be proved
• Buffery v Buffery [1988] – was found that the marriage had irretrievably
broken down. The couple had nothing in common, never went out and were
unable to communicate with each other, however, none of the 5 facts could be
made out
A divorce could not be granted – even if the marriage had broken down
irretrievably, a divorce could only be granted where one of the five facts was
made out
Fact 1 – Adultery
• Adultery is voluntary sexual intercourse between a man and a woman, one or
both of whom is married. Sexual intimacy short of sexual intercourse or same-
sex intercourse will not amount to adultery
• Must demonstrate the respondent has committed adultery and the petitioner
finds it intolerable to live with the respondent
• Cannot rely on your own adultery to base a divorce petition
• S2(1) – you cannot rely on the adultery ground if after discovering your
spouse’s adultery you have lived together for more than 6 months