DIVORCE LAW AND PROCEDURE
Human Rights
Article 12 ECHR – men and women of marriageable age have the right to marry and found a
family according to the national laws governing the exercise of that right
One-Year Rule
S3 MCA 1973 – petition for divorce cannot be brought within first year of marriage
- cannot be waived in any circumstances
Decree of nullity or separation is not affected by this rule
Jurisdiction of the English Courts to hear suits for divorce S5 Domicile and Matrimonial
Proceedings Act 1973
Jurisdiction where:
a) both parties habitually resident in E+W; or
b) both parties were last habitually resident in E+W, and one still resides there; or
c) respondent habitually resident in E+W; or
d) petitioner habitually resident in E+W and has lived there for min. 1 year before
petition; or
e) petitioner domiciled in E+W and has lived there for min 6 months before petition; or
f) both parties domiciled in E+W; or
g) if none of a)-f) above applied and no court of other EU jurisdiction, either of the
parties is domiciled in E+W on date when proceedings are begun
Also applies to SS Marriages Marriage (Same Sex Couples)… Regulations + CPs
Habitual Residence
- person can only be habitually resident in one place
- establish ‘centre of interest’ in persons’ life
o Z v Z (Divorce: Jurisdiction): a centre of interest may be established quickly or
slowly, depending on the circumstances. Habitual residence in one country
may not be lost despite a lengthy period in another… There is no requirement
that the centre of interest has to be permanent; it need only be habitual. But
it must have a stable character.
Domicile:
Broadly: if he has his permanent home there
Everyone has one and can only have one operative domicile at any time may alter:
- Domicile or origin: acquired at birth
o Where parents married: father’s domicile
o Where parents not married: mother’s domicile
- Domicile of choice: every person 16+ may acquire
o Requires: residence in a country other than domicile of origin + intention to
remain there permanently/indefinitely
i.e. becoming citizen, purchasing home, length of time spent in
country
- Domicile of dependence: cannot acquire DoC if under 16 or not married
o If parents married: follows father’s domicile
o If parents not married: follows mother’s domicile
o If parents separate: follows domicile of parents with whom he stays.
, Choice of forum:
Where choice of jurisdiction + within EU governed by Brussels IIA
- Commenced the jurisdiction of MS covered by Brussels IIA which first seizes matter = exclusive
jurisdiction
Approac 1. Start with checklist on pg. 24
h a. Domicile: permanent home there (i.e. living abroad but with permanent
intention of moving back)
b. Habitual residence: place of interest
2. Brussels IIa - Article 3 General jurisdiction
1. In matters relating to divorce, legal separation or marriage annulment,
jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides
there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year
immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six
months immediately before the application was made and is either a national of
the Member State in question or, in the case of the United Kingdom and Ireland,
has his or her "domicile" there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and
Ireland, of the "domicile" of both spouses.
Next 1. Contact lawyer in foreign country
Steps a. How procedure, financial relief assessed, tax implications
2. Once you have advice compare to current jurisdiction
a. i.e. don’t have clean break order in Germany
3. What is best for client?
4. Ask where client wants to go?
a. But client has limited knowledge
b. Take account of costs of flying out
5. ACT QUICKLY
a. Chance that who would have been respondent gets there first, and petitions in
MS which is less preferable (Brussels IIa whoever seizes it first has juris)
Recognition of foreign decree
- Where recognised: parties free to remarry in E+W
o Court may make financial order
- Where not recognised: will have to petition for divorce through English courts
, Grounds for Divorce
Marriage has broken down irretrievably (S1(1) MCA 1973) shown through facts:
Adultery and Intolerability S1(2)(a)
Adultery S1(6): only between persons of opposite sex
Proof: see pg. Adultery = voluntary sexual intercourse between two persons of the opposite sex,
28 one/both of whom are married, but not to each other
Intolerability Doesn’t have to be linked to adultery
Co- Person with whom adultery committed can be made party to divorce – not necessary
Respondent to obtain admission; only evidence that respondent committed adultery required
Effect of Cannot rely on adultery if cohabited with period/periods exceeding 6 months after
cohabitation discovery of adultery (S2(1))
Where not exceeding 6 months disregard cohabitation (S2(2))
Behaviour S1(2)(b)
Respondent’s “cannot reasonably be expected to live with the respondent” = objective test
Behaviour - Petitioner’s word alone ≠ enough
- Have regard to the marriage history + personalities of spouses
Case law see Usually look for 3-6 examples
pg. 29 (unreasonably behaviour can be adultery)
Effect of Where not exceeding 6 months disregard cohabitation (S2(3))
cohabitation Lived together for 6+ months – not absolute bar but will take into consideration
- The longer the cohabitation, the less likely it will be that court will grant the
petition
- Bradley v Bradley: wife continued to cohabit, but proved that she had
nowhere else to go, had 7 kids, frightened
Desertion (min 2 years) S1(2)(c)
What a) must be a separation often living apart but can be living together + be separated
constitutes if common home and common life has ceased altogether (Hopes v Hopes)
desertion? b) intention to desert (i.e. bring matrimonial union to end)
c) petitioner must not consent/agree to separation
Pg. 30-31 d) respondent must not have just cause for leaving (i.e. away on business)
e) desertion must be continuous (several periods cannot normally be added together
to form 2-year period)
f) desertion must immediately preceded the presentation of petition (i.e. date when it
is filed)
Effect of In considering whether a period = continuous, no account taken of period/periods
cohabitation not exceeding 6 months in total during which parties cohabited (S 2(5)
2 Years’ Separation + Consent S1(2)(d)
Separation 2 years’ separation = necessary
Treated as living apart unless living with each other in same household (S2(6))
Pg. 31 - Can be living apart when under same roof (see above)
Physical separation ≠ living apart
- Must have mental element (Santos v Santos – marriage = mere shell, never
intending to live with spouse again)
Consent Must consent
Can be given any time after the service of petition
MUST be in writing (FRP 2010 r7.12(12))
- In practice given by AoS
Respondent my give notice that he does not consent/withdraws consent
, - No reason needed (r7.12(12))
Attempt to withdraw consent on decree nisi already obtained = likely ineffective
May rescind where court satisfied that petitioner misled respondent about matters
taken into account in deciding to give consent (S10(1))
Effect of In considering whether a period = continuous, no account taken of period/periods
cohabitation not exceeding 6 months in total during which parties cohabited (S 2(5)
Financial DELAY NOT BAR
position of Respondent may apply to court for consideration of his financial position following
respondent divorce (S10(2)) court must consider circumstances and will not make decree nisi
(S10(2)) absolute unless satisfied that:
a) Petitioner should not be required to make any provisions for the respondent;
or
b) The financial provision made is fair + reasonable, or the best that can be made
in the circumstances (S10(3))
May proceed w/o above requirements if: satisfied that circumstances make is
desirable that decree should be made absolute w/o delay + court obtained
undertaking from petitioner that he will make such financial provisions for the
respondent as the court may approve (S10(4))
5 Years’ Separation S1(2)(e)
Separation Treated as living apart unless living with each other in same household (S2(6))
- Can be living apart when under same roof (see above)
Physical separation ≠ living apart
- Must have mental element (Santos v Santos – marriage = mere shell, never
intending to live with spouse again)
Defence: denying separation OR proving grave hardship under S5
Decree may be delayed by respondent asking for financial position to be considered
under S10(2)
Grave Dissolution of marriage = result in grave financial or other hardship for respondent
Hardship and in all circumstances would be wrong to dissolve (S5(1))
- Must consider parties’ conduct, interest of both parties + interest of
Pg. 33 children/other connected persons – S5(2)
Most commonly pleaded = financial. Includes:
- Loss of chance of acquiring any benefit respondent might acquire if marriage
were not dissolved (S5(3))
i.e. Julian v Julian: husband contributed to an occupational pension
scheme, wife would be faced with hardship if he obtained divorce, as
she would no longer be entitled to widow’s pension under scheme
o would not succeed where it can be shown that this ≠ grave as
for example, wife entitled to her own occupational
pension/husband could compensate her for her loss
May also take forms + necessitate examination caused by religious censure or social
ostracisms but VERY DIFFCULT TO prove rare
Distinction S5: complete defence if succeeds = couple remain married
between S5 + - respondent must show: grave financial or other hardship
S10(2) S10(2): delays decree nisi
- respondent must show: provision not fair + reasonable
Easier to establish S10(2) but less drastic
Effect of In considering whether a period = continuous, no account taken of period/periods
Human Rights
Article 12 ECHR – men and women of marriageable age have the right to marry and found a
family according to the national laws governing the exercise of that right
One-Year Rule
S3 MCA 1973 – petition for divorce cannot be brought within first year of marriage
- cannot be waived in any circumstances
Decree of nullity or separation is not affected by this rule
Jurisdiction of the English Courts to hear suits for divorce S5 Domicile and Matrimonial
Proceedings Act 1973
Jurisdiction where:
a) both parties habitually resident in E+W; or
b) both parties were last habitually resident in E+W, and one still resides there; or
c) respondent habitually resident in E+W; or
d) petitioner habitually resident in E+W and has lived there for min. 1 year before
petition; or
e) petitioner domiciled in E+W and has lived there for min 6 months before petition; or
f) both parties domiciled in E+W; or
g) if none of a)-f) above applied and no court of other EU jurisdiction, either of the
parties is domiciled in E+W on date when proceedings are begun
Also applies to SS Marriages Marriage (Same Sex Couples)… Regulations + CPs
Habitual Residence
- person can only be habitually resident in one place
- establish ‘centre of interest’ in persons’ life
o Z v Z (Divorce: Jurisdiction): a centre of interest may be established quickly or
slowly, depending on the circumstances. Habitual residence in one country
may not be lost despite a lengthy period in another… There is no requirement
that the centre of interest has to be permanent; it need only be habitual. But
it must have a stable character.
Domicile:
Broadly: if he has his permanent home there
Everyone has one and can only have one operative domicile at any time may alter:
- Domicile or origin: acquired at birth
o Where parents married: father’s domicile
o Where parents not married: mother’s domicile
- Domicile of choice: every person 16+ may acquire
o Requires: residence in a country other than domicile of origin + intention to
remain there permanently/indefinitely
i.e. becoming citizen, purchasing home, length of time spent in
country
- Domicile of dependence: cannot acquire DoC if under 16 or not married
o If parents married: follows father’s domicile
o If parents not married: follows mother’s domicile
o If parents separate: follows domicile of parents with whom he stays.
, Choice of forum:
Where choice of jurisdiction + within EU governed by Brussels IIA
- Commenced the jurisdiction of MS covered by Brussels IIA which first seizes matter = exclusive
jurisdiction
Approac 1. Start with checklist on pg. 24
h a. Domicile: permanent home there (i.e. living abroad but with permanent
intention of moving back)
b. Habitual residence: place of interest
2. Brussels IIa - Article 3 General jurisdiction
1. In matters relating to divorce, legal separation or marriage annulment,
jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides
there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year
immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six
months immediately before the application was made and is either a national of
the Member State in question or, in the case of the United Kingdom and Ireland,
has his or her "domicile" there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and
Ireland, of the "domicile" of both spouses.
Next 1. Contact lawyer in foreign country
Steps a. How procedure, financial relief assessed, tax implications
2. Once you have advice compare to current jurisdiction
a. i.e. don’t have clean break order in Germany
3. What is best for client?
4. Ask where client wants to go?
a. But client has limited knowledge
b. Take account of costs of flying out
5. ACT QUICKLY
a. Chance that who would have been respondent gets there first, and petitions in
MS which is less preferable (Brussels IIa whoever seizes it first has juris)
Recognition of foreign decree
- Where recognised: parties free to remarry in E+W
o Court may make financial order
- Where not recognised: will have to petition for divorce through English courts
, Grounds for Divorce
Marriage has broken down irretrievably (S1(1) MCA 1973) shown through facts:
Adultery and Intolerability S1(2)(a)
Adultery S1(6): only between persons of opposite sex
Proof: see pg. Adultery = voluntary sexual intercourse between two persons of the opposite sex,
28 one/both of whom are married, but not to each other
Intolerability Doesn’t have to be linked to adultery
Co- Person with whom adultery committed can be made party to divorce – not necessary
Respondent to obtain admission; only evidence that respondent committed adultery required
Effect of Cannot rely on adultery if cohabited with period/periods exceeding 6 months after
cohabitation discovery of adultery (S2(1))
Where not exceeding 6 months disregard cohabitation (S2(2))
Behaviour S1(2)(b)
Respondent’s “cannot reasonably be expected to live with the respondent” = objective test
Behaviour - Petitioner’s word alone ≠ enough
- Have regard to the marriage history + personalities of spouses
Case law see Usually look for 3-6 examples
pg. 29 (unreasonably behaviour can be adultery)
Effect of Where not exceeding 6 months disregard cohabitation (S2(3))
cohabitation Lived together for 6+ months – not absolute bar but will take into consideration
- The longer the cohabitation, the less likely it will be that court will grant the
petition
- Bradley v Bradley: wife continued to cohabit, but proved that she had
nowhere else to go, had 7 kids, frightened
Desertion (min 2 years) S1(2)(c)
What a) must be a separation often living apart but can be living together + be separated
constitutes if common home and common life has ceased altogether (Hopes v Hopes)
desertion? b) intention to desert (i.e. bring matrimonial union to end)
c) petitioner must not consent/agree to separation
Pg. 30-31 d) respondent must not have just cause for leaving (i.e. away on business)
e) desertion must be continuous (several periods cannot normally be added together
to form 2-year period)
f) desertion must immediately preceded the presentation of petition (i.e. date when it
is filed)
Effect of In considering whether a period = continuous, no account taken of period/periods
cohabitation not exceeding 6 months in total during which parties cohabited (S 2(5)
2 Years’ Separation + Consent S1(2)(d)
Separation 2 years’ separation = necessary
Treated as living apart unless living with each other in same household (S2(6))
Pg. 31 - Can be living apart when under same roof (see above)
Physical separation ≠ living apart
- Must have mental element (Santos v Santos – marriage = mere shell, never
intending to live with spouse again)
Consent Must consent
Can be given any time after the service of petition
MUST be in writing (FRP 2010 r7.12(12))
- In practice given by AoS
Respondent my give notice that he does not consent/withdraws consent
, - No reason needed (r7.12(12))
Attempt to withdraw consent on decree nisi already obtained = likely ineffective
May rescind where court satisfied that petitioner misled respondent about matters
taken into account in deciding to give consent (S10(1))
Effect of In considering whether a period = continuous, no account taken of period/periods
cohabitation not exceeding 6 months in total during which parties cohabited (S 2(5)
Financial DELAY NOT BAR
position of Respondent may apply to court for consideration of his financial position following
respondent divorce (S10(2)) court must consider circumstances and will not make decree nisi
(S10(2)) absolute unless satisfied that:
a) Petitioner should not be required to make any provisions for the respondent;
or
b) The financial provision made is fair + reasonable, or the best that can be made
in the circumstances (S10(3))
May proceed w/o above requirements if: satisfied that circumstances make is
desirable that decree should be made absolute w/o delay + court obtained
undertaking from petitioner that he will make such financial provisions for the
respondent as the court may approve (S10(4))
5 Years’ Separation S1(2)(e)
Separation Treated as living apart unless living with each other in same household (S2(6))
- Can be living apart when under same roof (see above)
Physical separation ≠ living apart
- Must have mental element (Santos v Santos – marriage = mere shell, never
intending to live with spouse again)
Defence: denying separation OR proving grave hardship under S5
Decree may be delayed by respondent asking for financial position to be considered
under S10(2)
Grave Dissolution of marriage = result in grave financial or other hardship for respondent
Hardship and in all circumstances would be wrong to dissolve (S5(1))
- Must consider parties’ conduct, interest of both parties + interest of
Pg. 33 children/other connected persons – S5(2)
Most commonly pleaded = financial. Includes:
- Loss of chance of acquiring any benefit respondent might acquire if marriage
were not dissolved (S5(3))
i.e. Julian v Julian: husband contributed to an occupational pension
scheme, wife would be faced with hardship if he obtained divorce, as
she would no longer be entitled to widow’s pension under scheme
o would not succeed where it can be shown that this ≠ grave as
for example, wife entitled to her own occupational
pension/husband could compensate her for her loss
May also take forms + necessitate examination caused by religious censure or social
ostracisms but VERY DIFFCULT TO prove rare
Distinction S5: complete defence if succeeds = couple remain married
between S5 + - respondent must show: grave financial or other hardship
S10(2) S10(2): delays decree nisi
- respondent must show: provision not fair + reasonable
Easier to establish S10(2) but less drastic
Effect of In considering whether a period = continuous, no account taken of period/periods
