Divorce PDF

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FAMILY LAW 2019-Divorce and Dissolution of Civil PartnershipsA brief history of divorce law- Matrimonial Causes Act 1857 Introduced divorce but only on the ground of adultery Man just had to show that wife had had sex with someone else, but wife had toshow that husband committed aggravated adulter...

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FAMILY LAW 2019-2020 Divorce and Dissolution of Civil Partnerships A brief history of divorce law -

Matrimonial Causes Act 1857  Introduced divorce but only on the ground of adultery  Man just had to show that wife had had sex with someone else, but wife had to show that husband committed aggravated adultery- had to be incest, rape etc

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Matrimonial Causes Act 1923  Got rid of the requirements for the wife to prove

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Matrimonial Causes Act 1937  Cruelty and desertion were requirements again  Could divorce on basis that partner is insane

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Archbishop of Canterbury’s Committee (1966) ‘Putting Asunder. A Divorce Law for Contemporary Society’  Said we should remove the fault requirements and have a new process which considers whether the marriage has irretrievably broken down Law Commission (1966) ‘Reform of the Grounds for Divorce: The Field of Choice’ (Cmnd. 3123)

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Move from doctrine of ‘matrimonial offence’ to the concept of ‘irretrievable marital breakdown’. -

Divorce Reform Act 1969  One ground for divorce- irretrievable breakdown of marriage The 1969 Act is often described as having three fault-based facts (adultery, behaviour and desertion) and two no-fault options (2 years separation with consent and 5 years separation without consent), but as Lady Hale made clear in the recent case of Owens, this is misleading: the current law (now contained in the Matrimonial Causes Act 1973) is not concerned with fault, and the so-called ‘fault-based facts’ are better explained as ‘conduct-based’ (see further below).

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Family Law Act 1996 By the same token, the 1996 Act is often described as an attempt to remove ‘fault’ (‘conduct’) from divorce law. However, the relevant part of the Act (Part II) was never brought into force. It was finally repealed by s. 18 Children and Families Act 2014.

C. Smart “Divorce in England 1950-2000: A Moral Tale?” in S.N. Katz, J. Eekelaar and M. Maclean (eds) Cross Currents. Family Law and Policy in the US and England (2000) (Oxford: OUP) pp 363-385.

In June this year, a Bill, the Divorce, Dissolution and Separation Bill, was introduced into Parliament which, if leading to legislation, would finally remove ‘fault’ from the divorce/dissolution process. We shall discuss this in more detail in a later lecture.

II Divorce under the 1973 Law

The (not so) “Special Procedure” Until 1973 the petitioner in a divorce case had to give oral testimony before a judge before a petition could be granted. The “Special Procedure” was introduced in that year in order to simplify the process of obtaining a divorce. The term has now been abandoned but the process has not, and indeed is the standard route to divorce for almost all couples. Divorce Centres Send petition to divorce centre. Looked at by legal advisor, who validates that petition has been properly filled in and decides if you can get your divorce. Administrative procedure, doesn’t involve a judge. More efficient and quicker to deal with divorces. Proven to have had the opposite effect. Have to print off form and fill it in, send it through post. As much as 40% of petitions submitted are incorrectly filled in. People had to wait longer than previously to get a divorce. Can now fill form in entirely online. Form won’t send unless it is filled in correctly. The Crime and Courts Act 2013 enabled legal advisers to consider divorce applications. 11 Divorce Centres have subsequently been established across England and Wales, replacing 110 divorce county courts. All divorce petitions are now sent to the designated Divorce Centre. Uncontested divorce petitions are considered by legal advisers based at those Centres. Where the petition is contested the matter is listed for hearing and transferred to the family court. T. Roe, “Bury St Edmunds: a town fam’d for divorce” (August 2015) Family Law, pp 955-957. HM Courts & Tribunals Service, “Q & A: Changes to the divorce process in England and Wales” (August 2015) Family Law, pp 958-960. Although introduced on the basis that they would speed up the time taken to obtain a divorce, statistics produced in 2018 and 2019 demonstrate that, because of staff shortages, the introduction of divorce centres has increased the time that it takes to get a decree. For those granted Decree Nisi in January to March 2018, the average time from the date of

petition was 26.7 weeks, rising to 33 weeks in January to March 2019, whilst the average time from petition to Decree Absolute was 51.3 weeks in the first three months of 2018, rising to 59 weeks a year later, the highest figures seen since 2004, when statistics were first recorded using the current methodology. See Ministry of Justice (2019) Family Court Statistics Quarterly, England and Wales, January to March 2019 6, table 14 and figure 5 https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-tomarch-2019 In 2018, HM Courts and Tribunals Service began to offer a wholly on-line service for litigants in person, which it is claimed will save 13000 hours of staff time per annum, because the online forms will not complete unless all relevant information has been added, whereas under the prior-existing system, under which it was (and still is) possible to access forms on line and print them off, 40% are returned because they are not completely or properly completed by applicants, and have to be checked manually and individually by divorce centre staff. https://www.lawgazette.co.uk/law/public-given-full-access-to-make-onlinedivorce-applications/5065989.article M v P (Queen’s Proctor Intervening) [2019] EWFC 14 (June [2019] Fam Law 627, 654) - Filled form in to say they had been living apart for 2 years when really it was 1 year 9 months - They got their decree absolute - Administration found out about it after, said the divorce wasn’t valid - But they had re married other people by this point - Judge said it could be regarded as voidable decree - No substantive injustice- had just ticked the wrong box - They had grounds on behaviour anyway Owens v Owens [2018] UKSC 41

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Mr o successfully defended wifes divorce petititon She sough divorce because of his behaviour Court said theres no behaviour you can point to to justify divorce She appealed and was unsuccessful

NO LEGAL AID AVAILABLE FOR DIVORCE

A. Bar on petitions for divorce within one year of marriage – cant apply for divorce within first year of marriage but doesn’t prevent you from filing divorce one day after the year and using things that happened during the first year s.3 MCA 1973: (1) No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage.

(2) Nothing in this section shall prohibit the presentation of a petition based on matters which occurred before the expiration of that period. Baron v Baron and other cases (Four defective divorces) [2019] EWFC 26 (July [2019] Fam Law 741)  In all 5 cases at least one of the spouses wanted and applied for divorce before the year was up  Court said it is an absolute requirement you must wait a year  you are still married  if you got married again you are now in two marriages B. The ground for divorce:- irretrievable breakdown of marriage only reason law recongises is irretrievable breakdown of marriage – can only be demonstrated by one of the five facts recognised in sub section The sole ground for divorce is irretrievable breakdown of marriage – s.1(1) MCA 1973. This can only be established by proving one of five facts contained in s.1(2).

s.1(1) MCA 1973: …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. s. 1(2) MCA 1973: The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts…

Le Marchant v Le Marchant [1977] 1 WLR 559, CA  husband puts in an application for divorce on basis they have lived apart fpor 5 years  wife responded saying yes we have but she disputed marriage was over – didn’t believe it has irretrievably broken down  court said it didn’t matter what wife thinks, if the fact is met, living apart for 5 years, there has been irretrievable breadkwon Hadjimilitis v Tsarviris (Divorce: Irretrievable Breakdown) [2003] 1 FLR 81  wife applies for divorce on basis of husbands controlling behaviour  he believed he could save the marriage  he was still trying to control her even though she tried to divorce him  marriage was I.b.d Grenfell v Grenfell [1978] Fam 128, CA  no duty to enquire once one of the five facts has been satisfied  wife applied for divorce based on behaviour of husband  husband agreed marriage had irretrievably broken down  said they had been living apart for 5 years  you’ve admitted the fact relied upon by your husband is satisfied, we aren’t going to 

look into what real cause is as long as on of the facts is found we find that marriage is I>B>D

Biggs v Biggs and Wheatley [1977] Fam 1

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only case where fact was found but marriage wasn’t i.b.d two stages to divorce – conditional divorce then wait at least 6 weeks for decree absolute which constitutes end of marriage in this case mrs b had applied for a divorce and been granted conditional decree divorce based on admitted adultery by husband husband had been in prison while wife was doing that he was then released from prison and they started to live together again as happy couple for a year was then some dispute and wife decided although she was going to continue living with him she was going to apply for decree absolute and get a divorce court wouldn’t give it to her because they cannot turn a blind eye to the fact marriage had not i.b.d only case where fact (adultery) was satisfied but it had not i.b.d

- Proof of breakdown s.1(2) Matrimonial Causes Act 1973 – says breakdown occurs by provind one of five facts s.1(3) MCA 1973: On a petition for divorce it shall be the duty of the court to enquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

s.1(4) MCA 1973: If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5…grant a decree of divorce. Grenfell (above) Le Marchant (above) Must actually prove that one of the five facts is satisfied (although, in reality, given that the “special procedure” will be used, it will be enough to assert that one of the facts exists). Buffery v Buffery [1998] 2 FLR 365, CA  couple been married for 20 years but gradually drifted apart  lived separately in household  wife applied for divorce  based it on husbands behaviour  court decided he hadn’t done anything wrong, he wasn’t loving doting husband but 

nor was she yes i.b.d they didn’t love each other anymore but hadn’t shown any of facts to show it had actually broken down

Richards v Richards [1972] 1 WLR 1073, Fam Div  mr r became mentally ill and became moody and prone to get up in middle of night and go downstairs  she left him and asked for divorce on his behaviour  yes marriage has i.b.d but he hasn’t done anything wrong to meet the facts – threshold

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hasn’t been reached in this case

Stevens v Stevens [1979] 1WLR 885, Fam Div  wife applies for divorce based on behaviour of husband  husband disputing it  judge decided marriage had broken down but was wifes fault but not husbands  he wasn’t seeking divorce so no basis to grant divorce even though marriage broken

down Owens v Owens (above)  couple In 60’s  marriage broken down because moved out previously  at first instance she was told there was no behaviour on part of husband sufficient to activate behaviour fact  C. The five facts s.1(2)(a): that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent Dennis v Dennis [1955] 2 All ER 51, CA  adultery has to be consensual sex between 2 people of different sexs  has to be sexual intercourse  must be voluntary and heterosexual Redpath v Redpath [1950] 1 All ER 600  wife was raped  husband tried to divorce her on this basis 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. Goodrich v Goodrich [1971] 2 All ER 1340

The two statements in subsection (a): adultery and intolerability need not be causally linked: Cleary v Cleary and Hutton [1974] 1 WLR 73, CA: As a matter of interpretation, I think the two facts in section 2(1)(a) [now s 1(2)(a) MCA 1973] are independent and should be so treated…The husband proves that the wife committed adultery and that he forgave her and took her back. That is one fact. He then proves that, after she comes back, she behaves in a way that makes it quite intolerable to live with her. She corresponds with the other man and goes out at night and finally leaves her husband…That is another fact. It is in consequence of that second fact that he finds it intolerable – not in consequence of the adultery…He complies with section 2(1)(a) by proving (a) her adultery which was forgiven; and (b) her subsequent conduct (not adultery), which makes it intolerable to live with her (Denning L.J. at p76) Carr v Carr [1974] 1 WLR 1534, CA

If the parties continue to live with each other for more than six months after the adultery has been discovered, then the ‘innocent’ party becomes barred from using the adultery as the basis of a divorce action: s.2(1) MCA 1973. This is shown in Biggs v Biggs (above) Kim v Norris [2012] EWHC 1103 (Fam) Periods of cohabitation of six months or less are disregarded: s.2(2) MCA 1973. The adultery must be admitted by the respondent: Liz Trinder et al (2017) Finding Fault? Divorce Law and Practice in England and Wales Full report (Nuffield Foundation), 44.

s.1(2)(b): that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This is the most common fact used for obtaining a divorce. lawyers call this unreasonable behaviour but this is WRONG. Said most rigioursly in owens case Owens v Owens [2018] UKSC 41 “Unreasonable behaviour” has always been the family lawyer’s shorthand description for the content of the subsection. But it is wrong. The subsection requires not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable (Lord Wilson at para. 37). Worse still, referring to “unreasonable behaviour” can also lead to a search for who is the more to blame, which is also irrelevant. The Divorce Reform Act 1969 swept away the concepts in the old law relating to matrimonial “offences” which did make an attempt, however crude, to work out who was the more to blame. The current law simply does not do this (Lady Hale at para. 48). Mrs owens thought recently her divorce would just go through the procedure and no one would really check Advised to give firsr, worst and last piece of behaviour This is what she did She said he was unpleasant etc Mrs owens then added a further 27 examples to petition Now like 30 examples Even then the judge said the petition and allegations were flimsy and scraping barrel – petition lacked beef said she had exaggerated minor incidents CA said if husband hadn’t rejected your divorce would have gone through The subsection covers a broad range of positive behaviours: o

o o o o

The behaviour can be established from a single incident. That is perfectly possible – if, for instance, there has been a serious assault by one partner upon the other. Drunkenness, alcoholism and drug addiction can also be cited. Emotional abuse. Financial irresponsibility causing stress to the petitioning spouse or other problems within the family can also suffice. The respondent’s behaviour can be established by reference to a totality of events which taken in isolation may seem trivial, such as:

the cumulative effect of a great many small incidents said to be indicative of authoritarian, demeaning and humiliating conduct over a period of time. Those who have never experienced such humiliation may find it difficult to understand how destructive such conduct can be of the trust and confidence which should exist in any marriage (per Lady Hale in Owens at para. 50) It can also catch negative behaviour:

Bannister v Bannister (1980) 10 Fam Law 240, CA  Mr b ignored his wife – decided he didn’t want to be married to her and ignored her  just completely ignored her  seeked divorce based on his behaviour  on first instance said no behaviour  she appealed  ca allowed her petition  behaviour does not need to be dynamic  doesn’t have to be positive, can be negative or passive conduct Thurlow v Thurlow [1976] Fam 23  mr t granted divorce from his wife  she had health problems such as epilepsy and neurological disorder which was getting

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husband sough divorce on positive behaviour – bed temper – and also on basis of her condition failure to act as a wife as how she had reasonably been expected to act – unfair as it wasn’t her fault not about blame or fault was still behaviour which meant is wasn’t reasonable for her husband to continue living with her

I am satisfied that…the marriage ha[s] irretrievably broken down and since the wife, tragically, is to spend the rest of her life as a patient in a hospital the husband cannot be expected to live with her. But the question remains as to whether the wife’s behaviour has been such as to justify a finding by the court that it is unreasonable to expect him to do so…[I]t is not sufficient to identify a state of affairs wherein there is merely a dead marriage coupled with an impossibility of cohabitation. It must be shown that it is the behaviour of the respondent which justifies a conclusion by the court that the petitioner cannot reasonably be expected to endure cohabitation (Rees J. at p40) …If the behaviour stems from misfortune such as the onset of mental illness or from disease of the body, or from accidental physical injury, the court will take full account of all the obligations of the married state. These will include the normal duty to accept and to share the burdens imposed upon the family as a result of the mental or physical ill-health of one member. It will also consider the capacity of the petitioner to withstand the stresses imposed by the behaviour, the steps taken to cope with it, the length of time during which the petitioner has been called upon to bear it and the actual or potential effect upon his or her health. The court will then be required to make a judgment as to whether the petitioner can fairly be required to live with the respondent (Rees J. at p 44)

…I am driven to the conclusion that behaviour which may found a decree under section 1(2)(b)…may be either positive or negative in character, or both, and may include cases where the behaviour is caused by mental or physical illness or injury and be involuntary (Rees J. at pp.45-6) White v White [1983] Fam 54  husband suffered from mental illnesss – hallucinations, messages from god telling   

him to kill his wife manifestation of his psychiatric condition nonetheless wife seeks divorce and gets it she cant reasonably be expected to live with it even though it isn’t her husbands fault

The court is not concerned to establish blame, albeit that some caselaw does seem to suggest this: Pheasant v Pheasant [1972] Fam. 202  husband petitioning for divorce on basis of behaviour  to satisfy facts said wife wasn’t spontaneous enough in her affection  wife resisted application and was successful  court said wife hadn’t...