Divorce in England and Wales

In England and Wales, divorce is allowed on the ground that the marriage has irretrievably broken down. The Matrimonial Causes Act 1973 specifies that the marriage may be found to have irretrievably broken down if one of the following is established:

  • Adultery
  • Unreasonable behaviour
  • Desertion (two years)
  • Separation, agreed divorce (two years)
  • Separation, contested divorce (five years)

Civil remarriage is allowed. Religions and denominations differ on whether they permit religious remarriage.

A divorce in England and Wales is only possible for marriages of more than one year and when the marriage has irretrievably broken down. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute'.

History

Historically, divorce was not administered as such by the barristers who practised in the common law courts but by the "advocates" and "proctors" who practised civil law from Doctors' Commons, adding to the obscurity of the proceedings.[1] Divorce was de facto restricted to the very wealthy as it demanded either a complex annulment process or a private bill leading to an Act of Parliament, with great costs for either. The latter entailed sometimes lengthy debates about a couple's intimate marital relationship in public in the House of Commons.[2]

The Matrimonial Causes Act 1857 moved litigation from the jurisdiction of the ecclesiastical courts to the civil courts, establishing a model of marriage based on contract rather than sacrament and widening the availability of divorce beyond those who could afford to bring proceedings for annulment or to promote a private Bill. The Matrimonial Causes Act 1923 provided for adultery as sole ground for either husband and wife, not just the husband. Prior to this women had to prove additional fault.[3]

The Matrimonial Causes Act 1937 made divorce easier to access, particularly for women, who until then could not get a divorce merely on grounds of adultery, as men could: women needed to show more causes than adultery, such as incest, sodomy, or cruelty. The need for the reforms was illustrated in the best-selling satirical novel Holy Deadlock (1934).

The Divorce Reform Act 1969 marked a significant change in that people could end marriages that had "irretrievably broken down" without having to prove fault.[4] They could end marriages after separation of two years, if both parties desired divorce, or five years if only one party desired divorce.[5]

The Matrimonial Causes Act 1973 provided that a marriage had to have lasted for three years before a divorce could be applied for; the Matrimonial and Family Proceedings Act 1984[6] reduced this period to one year.[7]

The Divorce, Dissolution and Separation Bill 2019-21 was introduced to parliament in January 2020 by the Conservative Government.[8] The bill was a response to the Supreme Court case of Owens (Appellant) v Owens (Respondent)[9], which stated in its concultion that Parliament may which to consider replacing the current divorce law.[10] The bill would remove the requirement to provide evidence of fault, or separation; and replace it with a statement from either applicant that the marriage had irretrievably broken-down. [11] The legislation received royal assent on 25 June 2020 and was passed as the Divorce, Dissolution and Separation Act 2020.[12]

Laws

Relevant laws are:

The ground for divorce

There is only one 'ground' for divorce under English law. That is that the marriage has irretrievably broken down.

Until the date on which the Divorce, Dissolution and Separation Act 2020 becomes effective there are five 'facts' that may constitute this ground. They are:

  1. Adultery
    • often now considered the 'nice' divorce.
    • respondents admitting to adultery will not be penalised financially or otherwise.
    • cannot be used as a ground for divorce if the couple keeps living together for more than six months after discovering the adulterous act, unless the adulterous relationship is continuing or there are other acts of adultery after the first such act is discovered.[13]
  2. Unreasonable behaviour (most common ground for divorce today).[14]
    • the petition must contain a series of allegations proving that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her.
    • the allegations may be of a serious nature (e.g. abuse or excessive drinking) but may also be mild such as having no common interests or pursuing a separate social life;[15] the courts will not insist on severe allegations as they adopt a realistic attitude: if one party feels so strongly that a behaviour is "unreasonable" as to issue a divorce petition, it is clear that the marriage has irretrievably broken down and it would be futile to try to prevent the divorce.[16]
  3. Two years separation (if both parties consent)
    • both parties must consent
    • the parties must have lived separate lives for at least two years prior to the presentation of the petition
    • this can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc.
  4. Two years desertion
  5. Five years separation (if only one party consents)

Once in force, the Divorce, Dissolution and Separation Act 2020 will provide for no-fault divorce whereby the an application for divorce by way of the making of a statement that the marriage has broken down irretrievably disregarding the reasons detailed above. The Act is expected to come into force from Autumn 2021.[17]

Uncontested divorce procedure

Here is a rough outline of the undefended divorce procedure from start to finish:

  1. Filing of Divorce Petition and, if necessary, Statement of Arrangements for the Children
  2. Documents issued by Court and posted to the Respondent
  3. Respondent returns Acknowledgement of Service to the Court (if he/she does not you will need to consider Bailiff Service, Deemed Service or other options)
  4. Petitioner completes affidavit in Support of Petition and Request for directions
  5. A Judge will then consider all the divorce papers and if he/she is satisfied issue a Certificate of Entitlement to a Decree and Section 41 Certificate (confirming he/she is content with arrangements for any children)
  6. Decree nisi is granted. This is a court order which confirms that the grounds for divorce have been accepted and that the court believes the marriage has irretrievably broken down.[18]
  7. Six weeks later the application can be made by the Petitioner for the decree absolute.

From beginning to end, if there are no further issues and Court permitting, it takes around six months. If there are any outstanding financial issues between the parties, most solicitors would advise resolving these by way of a 'Clean Break' Court order prior to obtaining the Decree Absolute.

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See also

References
  1. Squibb (1977) pp 104–105. Squibb, G. D. (1977). Doctors' Commons. Oxford: Oxford University Press. ISBN 0-19-825339-7.
  2. Getzler, J. S. (2004) "Cresswell, Sir Cresswell (1793–1863)", Oxford Dictionary of National Biography, Oxford University Press, accessed 12 August 2007 (subscription or UK public library membership required)
  3. UK Parliament 2019.
  4. "A brief history of divorce". The Guardian. 2009-09-18. ISSN 0261-3077. Retrieved 2019-09-06.
  5. Cretney, Stephen (2005-01-27). Irretrievable Breakdown as the Ground for Divorce: The Divorce Reform Act 1969. Oxford University Press. doi:10.1093/acprof:oso/9780199280919.001.0001/acprof-9780199280919-chapter-9. ISBN 9780191713170.
  6. Participation, Expert. "Matrimonial and Family Proceedings Act 1984". www.legislation.gov.uk. Retrieved 2019-11-11.
  7. Matrimonial and Family Proceedings Act 1984, Section 1 at legislation.gov.uk
  8. "Divorce, Dissolution and Separation Bill [HL] 2019-21". UK Parliament. Retrieved 9 June 2020.
  9. "Owens (Appellant) v Owens (Respondent)". Retrieved 9 June 2020.
  10. "JUDGMENT Owens (Appellant) v Owens (Respondent) [Paragraph 45]" (PDF). 25 Jul 2018.
  11. "Divorce, Dissolution and Separation Bill [HL]: Briefing for Lords Stages". Retrieved 9 June 2020.
  12. "Royal Assent: 25 June 2020". House of Lords Hansard. 25 June 2020.
  13. "Archived copy". Archived from the original on 2016-03-04. Retrieved 2013-08-10.CS1 maint: archived copy as title (link)
  14. http://www.lawpack.co.uk/separation-and-divorce/articles/article925.asp]
  15. http://www.lawpack.co.uk/separation-and-divorce/articles/article925.asp
  16. https://web.archive.org/web/20090826110559/http://www.terry.co.uk/divorce1.html
  17. Autumn, Amy (18 June 2020). "Divorce bill set for autumn 2021 after passing Commons". FT Adviser.
  18. "UK Divorce Process Guide | Acclaimed Family Law". www.acclaimedfamilylaw.co.uk. Retrieved 2018-05-04.
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