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Divorce and Dissolution:

The End of Marriage


and Civil Partnership
Family Law
Sussex Law School

Aims
i. Understand how the law developed
ii. Know the process for getting a divorce
iii. Know the ground for divorce
iv. Understand the facts that have to be
made out for the ground to be met

Some Statistics on Divorce
Rate of Divorce
1858: 244
1938: 6,092
1971: 110,000
1993: 165,000
2003: 153,000
2005: 142,000
2011: 117,000

Rate of divorce in relation to rate of marriage
Divorce rate is in decline, but marriage rate is also
declining
Divorce Statistics
Some Statistics on Divorce
Age and Divorce Rate
Three times more likely to divorce if between 25 & 29
than 55 & 57
Early marriage more likely to lead to divorce
(especially in teen years)
Education
better educated are less likely to divorce
Previous marriages
Previously married more likely to divorce
Some Statistics on Divorce

Religiosity
Religious people who do not believe in divorce less
likely to divorce
Poverty
Divorce more prevalent amongst poorer people
Cohabitation prior to marriage
More likely to divorce if cohabitation precedes
marriage
Some Statistics on Divorce
Who sues?
Twice as many women as men
Divorcing Age
Women - 41
Men - 43
Duration of marriage
11 years
Children
More than half of divorcees have children under 16
136 000 children were involved in divorce in 2005


The Consequences of
Divorce
Effect on Children
developmental effects
life chances
Effects on Spouses
Women, poverty and divorce
Men, remarriage and step & new
families
Consequences are gendered
History
The arrival of a legal divorce process
Divorce and Matrimonial Causes Act
1857
Ground: adultery
note the gendered double standard until
1923
Adultery for men
Aggravated adultery for women
History
Widening the grounds: the move to no-fault divorce
Matrimonial Causes Act 1937 reforms:
mostly fault based: still adultery, but cruelty & habitual
drunkenness added;
And one no fault ground - incurable insanity - added
Eirene Whites Private Members Bill - 1951
proposed 7 year separation as an additional ground for divorce
the idea of no fault divorce is introduced into divorce discourse
The Royal Commission on Marriage and Divorce (1956)
Considered no fault divorce
Commission recommends no change
History

The Law Commission (1966)
The aims of good divorce law:
buttress marriage,
When marriage had failed, to end it with
maximum fairness, and
minimum bitterness, distress and
humiliation.
Recommends irretrievable breakdown,
but without inquest (impracticable)
History

The Law Commission (1966)
Instead of an Inquest a court should infer
breakdown from:
A period of separation,
Proof by one party of a matrimonial offence
committed by the other (a fault-based fact)
The Current Law
In Outline
The introduction of no-fault divorce
Divorce Reform Act 1969 & Matrimonial Causes
Act 1973


And dissolution of Civil Partnerships
Civil Partnership Act 2004
Follows divorce, but not exactly
The Current Law
One ground
Irretrievable breakdown

But five facts
Adultery (but not for civil partnerships),
behaviour,
desertion,
separation with consent,
separation without consent

If marriage broken down but fact not proved no
divorce
Buffery 1988
The Current Law:
some preliminary observations
A double two stage process:
Status (to become unmarried), and
Consequences (finances, property and children)
Decree nisi
Decree absolute 6 week cooling off period
The time bar
No divorce in the first year of marriage
The special procedure
The role of the court:
Divorce by paper (administrative) process,
scrutinised by a judge.

Procedural Reform

There is scope to increase the use of administrators in the
courts to reduce burdens on judges and create a more
streamlined process in the 98% of cases where divorce is
uncontested.

The current process requires judges to spend
time in effect to do no more than check that forms have been
filled in correctly, with accurate names and dates. This is a
waste. To change it would not make any difference to the
ease or difficulty of obtaining a divorce. It would just make
more judge time available for more important things.
The Family Justice Review (Final Report), 2011
Para. 4.166
The Facts: Adultery
Only for Marriage not for Civil Partnerships
that the respondent has committed adultery and the petitioner
finds it intolerable to live with the respondent (s1(2)(a) MCA 1973)
adultery
Voluntary sexual intercourse between a married person and
another person of the opposite sex (not the spouse) (Dennis
1955)
Ordinary civil standard of proof

intolerable to live together
The test is subjective
The petitioner must find it intolerable to live with the
respondent (Goodrich 1971)
Adultery need not cause the intolerability (Cleary 1974)
What about periods of reconciliation? (s 2(1&2) MCA 1973)
The Facts: Behaviour

that the respondent has behaved in such a way
that the petitioner cannot reasonably be expected
to live with the respondent (s1(2)(b) MCA 1973)
behaviour
No list of behaviour
but grew out of historic cruelty ground (so should justify
an end to cohabitation something approximating
irreconcilability?)
Need not be blameworthy or unreasonable
Katz (1972) illness
Pheasant (1972)
Carter-Fea (1987) passivity (failure to manage affairs)

The Facts: Behaviour
effect on the petitioner
the test is not whether or not the behaviour is
unreasonable

BUT

whether or not it is unreasonable to expect the
petitioner to continue to live with the respondent.
The Facts: Behaviour
it has objective and subjective elements:
Ash (1972)
the test is objective: Can the petition reasonably be
expected to live with respondent. But focuses on the
parties: can this petitioner, with his or her character
and personality, with his or her faults and other
attributes, good and bad, and having regard to his or her
behaviour during the marriage reasonably be expected
to live with this respondent?

still living together?
periods of reconciliation (s2(3) MCA 1973)
Bradley (1973) cohabitation for long period for good reason
can also be ignored

The Facts: Desertion
that the respondent has deserted the petitioner for a
continuous period of at least two years immediately
preceding the presentation of the petition (s1(2)(c) MCA
1973)
Intention to desert
Unjustified departure (breach of marital obligation)
The petitioner must remain open to the respondents
return
Factual separation
Pulford v Pulford [1923] P 18.
Simple or constructive desertion
Lang v Lang [1955] AC 402.
Time 2 years

The Facts: Separation with
consent
that the parties to the marriage have lived apart for a
continuous period of at least two years immediately preceding
the presentation of the petition and the respondent consents
to a decree being granted (s1(2)(d) MCA 1973)
living apart (fact)
Living apart in the same house?
Fuller (1973) H returns after heart attack (W has new boyfriend)
Hollens (1971) 115 SJ 327
Mouncer (1972) living together on bad terms
Reconciliation?

the mental element (intention to live apart)
Separation intended to be permanent (commuting relationships)

Consent
The fact of separation for 2 years
Time disrupted by periods of cohabitation? (s 2 (5) MCA 1973)
The Facts: Separation without
consent
that the parties to the marriage have lived apart for a
continuous period of at least five years immediately
preceding the presentation of the petition
(s1(2)(e) MCA 1973)

Living apart (but 5 years) and mental element as with 2 year
separation

The courts power to refuse the decree (s5 MCA 1973)
The respondent may oppose the grant of a decree on the
ground that the dissolution of the marriage will result in grave
financial or other hardship to him and that it would in all the
circumstances be wrong to dissolve the marriage.


Refusing the Decree?
The residual discretion to refuse a decree
absolute (s9 MCA 1973)
A wide discretion where information previously
unavailable to the court justifies the refusal to make
the decree final
religious divorces (see O v O (2000) & MCA 1973, s10A)

Rescission of the Decree Nisi
Special circumstances may justify a rescission
before the decree absolute:
S v S (2002) pension sharing rules changed


Summary
Understand how the law developed
in order to critically evaluate the law
Know the process for getting a divorce
Know the ground for divorce
Understand the facts that have to be
made out for the ground to be met in
order to answer problem questions