Family: L3 – Divorce and Dissolution of Civil Partnerships
Aims of divorce law:
Support the institution of marriage – if the procedure for divorce was more relaxed,
then people wouldn’t take marriage seriously or allow people to act on impulse
instead of thinking their decision through.
Avoid exacerbating the bitterness between the parties
Enable remarriage, to reduce number of children born out of wedlock
Grounds for Divorce – A historical overview:
Prior to 1857:
- divorce was not available through the courts – extremely expensive
- only divorce procedure available: private Act of Parliament
Matrimonial Causes Act 1857:
- introduced judicial divorce - (divorce procedures through the courts)
- adultery - sole ground
- women also needed to prove adultery plus aggravated circumstances – EG:
incest, bigamy, cruelty, desertion.
- Men only had to prove adultery
Matrimonial Causes Act 1923:
- abolished the aggravated adultery requirement for women,
- equalizing their position with men
Matrimonial Causes Act 1937:
- Introduced additional grounds:
a. Cruelty
b. Desertion for at least three years
c. Incurable insanity
Divorce Reform Act 1969:
- Liberalisation of divorce law – as a result of a change in society’s attitude in
favour of liberalising divorce
- It was no longer seen as marriage having to be for life
- 1966 Law Commission Report (Reform of the Grounds of Divorce: The Field of
Choice), recommended that the law should “enable the empty legal shell to be
destroyed” when marriage has broken down
- In order to demonstrate that the marriage had broken down they had to prove:
matrimonial offence or period of separation
- Abolished the old grounds for divorce
- Sole ground: irretrievable breakdown of marriage
- Five facts proving irretrievable breakdown:
- 3 similar to the old matrimonial offences:
1. adultery,
2. cruelty,
3. desertion
- + 2 non-fault facts:
4. two-years’ separation with consent to divorce,
5. five-years’ separation
Matrimonial Causes Act 1973 Part I (current law)
- Consolidates the Divorce Reform Act 1969
- s.1(1) – the one ground for divorce: irretrievable breakdown of marriage
, - s.1(2) – the five facts for divorce: 1 needs to be proved
1. adultery
2. unreasonable behaviour
3. two-years’ separation with consent to divorce
4. desertion
5. five-years’ separation
- the fact and the ground must be proven simultaneously
Cases:
Richards [1972] 3 All ER 695: Court satisfied marriage irretrievably broken down,
but not that he behaved in such a way that she could not be expected to live with
him
Buffery [1988] FCR 465: 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] UKSC 41: The trial judge had applied the law correctly 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.
The Facts:
Adultery:
s1(2)(a) MCA 1973 - adultery and intolerability
- “the respondent has committed adultery and the petitioner finds it intolerable to
live with the respondent”
- The adulterer cannot rely on his own behaviour – always the arty that has
suffered the wrong that seeks the decree of divorce.
‘Adultery’= voluntary act of sexual intercourse with a third party of the opposite sex
- Has to be an act of sexual intercourse – flirting will not be sufficient
- If the party cheats with the same gender – not adultery under this section.
Dennis [1955] 2 All ER 51: W could have sex with the person she wanted to cheat
with because the man suffered a nervous condition – adultery is not proved unless
there is some penetration
Homosexual intercourse/ sexual activity not involving intercourse do not constitute
adultery, but may constitute unreasonable behaviour
- s1(6) “Only conduct between the respondent and a person of the opposite sex
may constitute adultery for the purposes of this section.” – amendment under the
Marriage (Same-Sex Couples) Act 2013 Sch3 s4
s2(1) - if parties live together for more than 6 months after an act of adultery, the
petition cannot be based on that act
Unreasonable behaviour:
s1(2)(b) MCA 1973 – unreasonable behaviour
- “the respondent has behaved in such a way that the petitioner cannot reasonably
be expected to live with the respondent”
- What is unreasonable is not the behaviour itself but rather it is unreasonable for
the spouse to continuing living with them.
Objective test: ‘any right-thinking person’ – is this type of behaviour that a right-
thinking person would deem acceptable? – Livingstone-Stallard [1974] 2 All ER
766
Aims of divorce law:
Support the institution of marriage – if the procedure for divorce was more relaxed,
then people wouldn’t take marriage seriously or allow people to act on impulse
instead of thinking their decision through.
Avoid exacerbating the bitterness between the parties
Enable remarriage, to reduce number of children born out of wedlock
Grounds for Divorce – A historical overview:
Prior to 1857:
- divorce was not available through the courts – extremely expensive
- only divorce procedure available: private Act of Parliament
Matrimonial Causes Act 1857:
- introduced judicial divorce - (divorce procedures through the courts)
- adultery - sole ground
- women also needed to prove adultery plus aggravated circumstances – EG:
incest, bigamy, cruelty, desertion.
- Men only had to prove adultery
Matrimonial Causes Act 1923:
- abolished the aggravated adultery requirement for women,
- equalizing their position with men
Matrimonial Causes Act 1937:
- Introduced additional grounds:
a. Cruelty
b. Desertion for at least three years
c. Incurable insanity
Divorce Reform Act 1969:
- Liberalisation of divorce law – as a result of a change in society’s attitude in
favour of liberalising divorce
- It was no longer seen as marriage having to be for life
- 1966 Law Commission Report (Reform of the Grounds of Divorce: The Field of
Choice), recommended that the law should “enable the empty legal shell to be
destroyed” when marriage has broken down
- In order to demonstrate that the marriage had broken down they had to prove:
matrimonial offence or period of separation
- Abolished the old grounds for divorce
- Sole ground: irretrievable breakdown of marriage
- Five facts proving irretrievable breakdown:
- 3 similar to the old matrimonial offences:
1. adultery,
2. cruelty,
3. desertion
- + 2 non-fault facts:
4. two-years’ separation with consent to divorce,
5. five-years’ separation
Matrimonial Causes Act 1973 Part I (current law)
- Consolidates the Divorce Reform Act 1969
- s.1(1) – the one ground for divorce: irretrievable breakdown of marriage
, - s.1(2) – the five facts for divorce: 1 needs to be proved
1. adultery
2. unreasonable behaviour
3. two-years’ separation with consent to divorce
4. desertion
5. five-years’ separation
- the fact and the ground must be proven simultaneously
Cases:
Richards [1972] 3 All ER 695: Court satisfied marriage irretrievably broken down,
but not that he behaved in such a way that she could not be expected to live with
him
Buffery [1988] FCR 465: 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] UKSC 41: The trial judge had applied the law correctly 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.
The Facts:
Adultery:
s1(2)(a) MCA 1973 - adultery and intolerability
- “the respondent has committed adultery and the petitioner finds it intolerable to
live with the respondent”
- The adulterer cannot rely on his own behaviour – always the arty that has
suffered the wrong that seeks the decree of divorce.
‘Adultery’= voluntary act of sexual intercourse with a third party of the opposite sex
- Has to be an act of sexual intercourse – flirting will not be sufficient
- If the party cheats with the same gender – not adultery under this section.
Dennis [1955] 2 All ER 51: W could have sex with the person she wanted to cheat
with because the man suffered a nervous condition – adultery is not proved unless
there is some penetration
Homosexual intercourse/ sexual activity not involving intercourse do not constitute
adultery, but may constitute unreasonable behaviour
- s1(6) “Only conduct between the respondent and a person of the opposite sex
may constitute adultery for the purposes of this section.” – amendment under the
Marriage (Same-Sex Couples) Act 2013 Sch3 s4
s2(1) - if parties live together for more than 6 months after an act of adultery, the
petition cannot be based on that act
Unreasonable behaviour:
s1(2)(b) MCA 1973 – unreasonable behaviour
- “the respondent has behaved in such a way that the petitioner cannot reasonably
be expected to live with the respondent”
- What is unreasonable is not the behaviour itself but rather it is unreasonable for
the spouse to continuing living with them.
Objective test: ‘any right-thinking person’ – is this type of behaviour that a right-
thinking person would deem acceptable? – Livingstone-Stallard [1974] 2 All ER
766
