divorce

Divorce
NOTIONAL AIMS OF DIVORCE LAW
 Support the institution of marriage
 Saving marriages
 Limiting emotional harm
 Protection from violence
 Promoting on-going relationships
 Avoiding expense

GROUNDS FOR DIVORCE: HISTORICAL OVERVIEW
Prior to 1857: divorce was no available through the courts. The only divorce procedure available was
through a private act of parliament which was very expensive.

Matrimonial Causes Act 1857:

 Introduced judicial divorce (divorce through the courts)
 Adultery- sole ground
 Women needed to prove adultery plus aggravated circumstances such as incest, bigamy,
cruelty or desertion.

Matrimonial Causes Act 1923:

 Abolished the aggravated adultery requirement for women, equalising their position with
men.

Matrimonial Causes Act 1937:

Introduced additional grounds

 Cruelty
 Desertion for at least three years
 Incurable insanity

Divorce Reform Act 1969:

Liberalisation of divorce law

Change in society’s attitude in favour of liberalising divorce

1966 Law Commission Report (Reform of the Grounds of Divorce: The Field of Choice)- “enable the
empty legal shell to be destroyed” when marriage has broken down. Proof: matrimonial offence or
period of separation.

Abolished the old grounds for divorce

Sole ground: irretrievable breakdown of marriage

Five facts proving irretrievable breakdown

 Adultery
 Cruelty
 Desertion

,  Two years separation with consent to divorce
 Five years separation

Part 1 Matrimonial Causes Act 1973:

S.1(1): one ground for divorce is irretrievable breakdown of marriage

S.1(2): the five facts of divorce

 Adultery
 Unreasonable behaviour
 Desertion
 Two years separation with consent to divorce
 Five years separation

The S.1(2) fact and the one ground need to be proven simultaneously.

Richards 1972- husband had developed a mental illness. He was not a very nice person to live with.
Court satisfied marriage had irretrievably broken down but that he had not behaved in such a way
that she could not be expected to live with him.

Buffery 1988- if none of the facts is proved divorce cannot be granted even if the court is convinced
the marriage has irretrievably broken down.

Owens v Owens 2018- the trial judge had applied the law correct as it stood although there was a
strong argument that the law no longer reflected modern day realities and that no fault divorce was
called for.

Adultery

S.1(2)(a) MCA 1973

“the respondent has committed adultery and the petitioner finds it intolerable to live with the
respondent”

Adultery: voluntary act of sexual intercourse with a third party of the opposite sex.

Dennis 1955- adultery is not proven unless there is some penetration. Wife and the man gave
evidence that they both wanted to engage in sexual intercourse however they had not as he couldn’t
get an erection.

Cleary v Cleary 1974- it is not necessary to show that the reason why the petitioner cannot live with
the respondent is due to the adultery.

The court will be willing to find that adultery took place if it could be demonstrated that the parties
had the inclination and opportunity to commit adultery.

Homosexual intercourse/ sexual activity not involving intercourse do not constitute adultery, but
may constitute unreasonable behaviour.

S.1(6) MCA 1973: only conduct between the respondent and a person of the opposite sex may
constitute adultery for the purposes of this section.

S.2(1) MCA 1973: if parties live together for more than 6 months after an act of adultery, the petition
cannot be based on that act.