Divorce

UNIT 23
Preview

 Definition
 History
 Grounds for divorce
 Stages in obtaining a divorce
 Court orders
 Cases
Divorce

 The legal termination of marriage

 Under English law, the basis for divorce is the irretrievable
breakdown of marriage
 The official request to a court to end a marriage is called
divorce petition
 Petitioner - respondent
History of divorce law in UK

 Prior to 1857 church courts determined the law on divorce:

although nullity decrees could be made, divorce was not
available through courts
 The only form of divorce – by an Act of Parliament – a
hugely expensive procedure open only to the wealthy and to
husbands
 Marriages of the poor – ended in the husbands (less often
wives) deserting, and even in wife-sales, a practice believed
by the rural poor to terminate marriage (T. Hardy, The
Mayor of Casterbridge)
History

 Matrimonial causes Act 1857 – created an

alternative to divorce by an Act of Parliament: a
procedure through the courts
 Discrimination: Difference between the grounds
available to husband and wife, e.g. a husband
could rely on his wife’s adultery, but a wife could
rely on a husband’s adultery only if there were
aggravating circumstances (incest, ‘unnatural
offences’: bigamy, rape, sodomy)
History

 Matrimonial Causes Act 1923 put husband and wife in the

same position (adultery grounds)
 Matrimonial Causes Act 1937 extended the grounds to
include cruelty, desertion or incurable insanity
History

 Before 1973 (fault divorce) Matrimonial Causes Act the

petitioner was required to present in open court evidence to
support the grounds set out in the petition, by introducing
witnesses if necessary – expensive, embarassing, stressful
 1969 Divorce Reform Act introduced irretrievable
breakdown of a marriage as the only ground for divorce
(no-fault divorce)
History

 1973 Matrimonial causes Act

A special procedure introduced for undefended divorces: the
petitioner had to lodge the petition outlining the grounds for
divorce, a statement concerning arrangements for the
children and an affidavit confirming the truth of these
documents
Ground for divorce

 Irretrievable breakdown of a marriage

 It can be established by proving one or more of five facts
 Proof of irretrievable breakdown without one of the five
facts is insufficient
 Proof of one of the five facts raises an almost irrebuttable
presumption that marriage has irretrievably broken down
Five facts

 1. Adultery
 2. Unreasonable bahaviour
 3. Two years separation
 4. Five years separation
 5. Desertion
Adultery

 Sexual intercourse by consent between a married person and

someone of the opposite sex who is not that person’s spouse
Adultery

 Before the Divorce Reform Act adultery was a ground for

divorce; now adultery in itself is insufficient

 The PETITIONER must satisfy (= convince) the court that

the RESPONDENT has committed adultery and that it is
intolerable to live with them
Adultery

 The test is subjective: Does this petitioner find it intolerable

to live with this respondent?
 Cohabitation of over 6 months after becoming aware of
adultery ‘destroys’ the fact
UNREASONABLE
BEHAVIOUR
 The petitioner must satisfy the court that the respondent has
behaved in such a way that the petitioner cannot reasonably
be expected to live with the respondent
 Replaces the old ground of cruelty
 Whether the respondent’s behaviour is such that the
petitioner can no longer reasonably be expected to live with
him is a question of fact, and one for the court, not the
petitioner, to answer
Unreasonable behaviour

 A subjective view should be taken of the petitioner’s

character and personality and an objective view of whether
it is reasonable to expect her to live with the respondent
(Livingstone-Stallard v Livingstone-Stallard 1974)
Unreasonable behaviour

 Divorces are granted for a wide range of behaviour:

 Violence
 Subjecting a spouse to a constant criticism and disapproval
 Dogmatic and chauvinistic behaviour towards a sensitive
wife
 Financial irresponsibility
 An affair in which there was no adultery
Unreasonable behaviour

 More than a mere state of affairs or state of mind

 It is „action or conduct by one which affects the other”
 Incidents, which may be trivial, when looked at
cumulatively, can amount to behaviour that comes within
this provision
Unreasonable behaviour

 A difficult problem arises when the respondent, because of

mental or physical ill-health, cannot help his/her behaviour
Katz v Katz (1972)

 The husband suffered from manic-depressive illness

accompanied by paranoid or schizophrenic features
 He was rigid and obsessive
 Accused his wife unreasonably of sexual misconduct
 She was driven to attempted suicide
Katz v Katz (1972)

 The wife was granted a decree

 To determine whether such behaviour on the part of a
respondent who is mentally ill and lacks the capacity to
form any intention reaches the quality and standard
envisaged by the behaviour fact, the test to be applied is
whether after making allowances for his disabilities and the
temperaments of both parties, the character and gravity of
his behaviour is such that, in the opinion of the court, the
petitioner cannot be reasonably expected to live with him
Thurlow v Thurlow (1976)

 The wife was an epileptic who, in addition, suffered

increasingly from a severe neurological disorder
 She was bedridden, incontinent, and displayed bad temper,
aggression and became destructive
 She was hospitalized, the prognosis being that she would
require indefinite institutional care
Thurlow v Thurlow (1976)

 The husband was given a decree

 It was said that „behaviour” included negative conduct, e.g.
prolonged silences or total inactivity, as well as positive
conduct
 It included conduct which was involuntary and resulted
from mental or physical illness or injury
 The court took account of the obligations of marriage („in
sickness and in health”) but it had to take into accountthe
effect on the health of the petitioner and his capacity to bear
the stresses imposed
Desertion

 The petitioner must satisfy the court that the respondent has
deserted them for a continuous period of at least two years.
Desertion: four elements

 1) de facto separation between the spouses

 2) animus deserendi – an intention to remain separated from
the other
 3) there is no desertion if separation is by consent
 4) if one has a reasonable cause or reasonable excuse for
leaving the other, s/he is not in desertion (e.g. when a
Muslim man took a second wife against the will of the first
one, it was held she had a reasonable cause for leaving him,
and was not in desertion)
Two years separation and
consent
 If the parties have lived apart for a continuous period of at
least two years and the respondent consents to a divorce, the
petitioner is entitled to a divorce.
 The parties are to be treated as living apart unless they are
living with each other in the same household – this is not
the same as living together in the same house (Fuller v
Fuller)
Consent

 Consent – a positive requirement

 The mental capacity – the same as that required for
marriage: does the respondent understand the nature of his
consent, and appreciate the effect and nature of giving it?
 Respondents must be given such information as to enable
them to understand the effect of the decree
Five years separation and no
consent
 If the parties have lived apart for a continuous period of at
least five years, the petitioner is entitled to a divorce,
whether or not the respondent agrees.
 This means that a spouse can be divorced against his/her
will, even where she is blameless and even where she does
not believe in divorce
Stages in obtaining a divorce

 1. The DECREE NISI: the court is satisfied that the

petitioner is entitled to a divorce. Once this is granted, the
petitioner must wait for a minimum period of six weeks
before applying for
 2. the DECREE ABSOLUTE, which is the final stage in the
divorce.
 The reason for the gap: to give an unsuccessful respondent
an opportunity to appeal against the granting of the decree
absolute
The Family Law Act 1996
General principles
 Institutionof marriage should be supported
 The parties should take all steps to save the
marriage
The Family Law Act 1996
General principles
 A marriage which has irretrievably broken down should be
brought to an end
 With minimum distress to the parties and to the children
affected
 Promoting as good a continuing relationship between the
parties and any children affected as is possible in the
circumstances
 Without costs being unreasonably incurred
 Any risk of violence should be removed or diminished
A timetable for divorce
procedures under the Family
Law Act 1996
0 months ‘information meeting’
3 months Statement of marital breakdown (cannot be made
until the parties have been married at least 1 year)

9 months The period of reflection and consideration starts;

marriage counselling; arrangements for children
and financial arrangements
9-15 months If there are no children, the parties can apply for the
divorce order
The Children Act 1989

 Under this Act, the court can make a variety of orders

regarding children:
 Contact order
 Residence order
 Prohibited steps order
 Specific issues order
Contact order

 Requires the party with whom a child is living to allow the

child to visit or stay with another party or parties on a
regular basis
 Concern about domestic violence
Residence order

 Settles arrangements about where the child is to live

 Shared or joint residence order can be made
Prohibited steps order

 Designed to prevent a party from taking certain steps in

relation to the children which might be to their detriment
(e.g. taking them abroad to live permanently, preventing a
child’s school, religion or surname being changed)
Specific issues order

 Determines specific issues that have arisen regarding care of

the child (e.g. a child’s medical treatment, education)
STATEMENT OF
ARRANGEMENTS
 When applying for a divorce in a marriage in which there is
a child or children, the petitioner must also send a statement
of arrangements for the children to the court which sets out
the arrangements proposed for the children after the divorce
Factors taken into account

 The wishes of the child

 Their physical, emotional, and educational
needs
 The likely effect of any change
 The child’s age, background and
characteristics
 Any harm the child has suffered or might
suffer in the future
 How capable the parents are of meeting the
child’s needs
Property: (a joke)

 A wealthy businessman asks his wife what she would like

for her birthday: ‘a car, jewellery, perhaps?” She replies:
„Honey, I want a divorce” „Hell, I can’t afford that”, comes
the shocked reply
Financial consequences of
divorce
 Most husbands – in a much more powerful position than
their wives
 The division of labour in the family adversely affects the
economic viability of women, esp. when they have children
 There is evidence that on divorce, women suffer most, men
come out of marriage better-off
 The law is attempting to redress this imbalance
The origins of financial
provisions
 The ecclesiastical courts offered wives some financial
protection: they could order the husband to pay alimony
pending suit and permanent alimony after granting a
separation a mensa et thoro
 With the introduction of divorce in 1857, this power was
vested in the Divorce Court
 In 1963 a lump sum order was accepted
 1973 the Matrimonial Causes Act
The settlement culture

 Most couples do not go to court but settle their financial

arrangements by agreement
 Disadvantages: 1) the terms of the settlement may reflect an
imbalance of power between the parties; 2) it is lawyers
who decide, not the parties
Property rights

 Property adjustment order

 Periodical payments order
 Pension sharing order
 Lump sum order
 Order for sale of property
 Consent order
Property adjustment order

 An order affecting the rights of ownership of property of

either spouse, or both, e.g. the transfer of the matrimonial
home to one party or the other.
Periodical payments order

 An order that one party must pay a regular sum of money to

the other party
 If they are not paid, enforcement proceedings can be
brought; not easy to enforce unsecured payments
 Secured periodical payments – protected even if the payer
becomes bankrupt
 Periodical payments cease to have effect on payer’s death
(unless secured), and on the remarriage of the payee
Pension sharing order

 An order providing for one party to claim a share of the

other party’s pension entitlement.
Lump sum order

 An order for the payment of a specified sum of money

 The most important use of lump sums – to adjust the
parties’ capital assets
 Routine in cases where the husband is wealthy
 May be ordered if the wife needs a capital sum e.g. in order
to purchase a house or set up a business
Consent order

 Arrangements between the parties

 Usually in the case of an ‘amicable’ divorce
 Drawn up by a solicitor, but it has to be formally approved
by the court
Factors taken into account

 The income and earning capacity of the parties

 The financial needs and obligations of each party
 The standard of living enjoyed by the family during the
marriage
 The age of each party and the length of the marriage
 Any disabilities from which either party may suffer
 The contribution made by each party during the marriage
 The conduct of the parties does not usually have a bearing
on the nature of the financial settlement
Divorce statistics (UK)

 1961-1991: fivefold rise in the divorce rate

 Divorce rate has risen from 4.7 in 1970 to
13.7 in 1999
 In 2003 the median duration of a marriage:
11.3 years
 1 in 4 children will be affected by divorce by
the time they are aged 16
 69% divorces – granted to wives
Social explanations for
increasing divorce
 Society’s attitudes towards marriage have changed; people
stay in intimate relationships only as long as they meet their
goals of personal fulfilment
 Increased life expectancy
 Increased work pressures
 Financial independence of women
Adultery
Cleary v Cleary 1974
 The wife left the husband for another man, but then returned
to him for a few weeks before leaving again, this time to
stay with her mother. The husband petitioned for divorce.
Adultery
Cleary v Cleary 1974
 Held: A divorce would be granted to the husband as he had
established both her adultery and the fact that he found it
intolerable to live with her
Adultery
Cleary v Cleary 1974
 Commentary: The significance of this case lies in the
decision that the intolerability of living with the
respondent need not be related to the respondent’s
adultery. The petitioner can obtain a divorce if the
respondent has committed adultery, regardless of
whether the adultery was the cause of the marriage
breaking down. There is no need to show that a
reasonable person in the petitioner’s situation would
have found it intolerable to live with the respondent:
all that is needed is a statement that the petitioner finds
it intolerable
Unreasonable behaviour
Livingstone-Stallard v Livingstone-
Stallard, 1974
 The wife petitioned for divorce on the basis that she could
not reasonably be expected to live with her husband, who
had constantly criticised her, telling her that wives had to be
subservient to their husbands in order to be happy
Unreasonable behaviour
Livingstone-Stallard v Livingstone-
Stallard, 1974
 Held: The decree would be granted. The
correct approach was to ask whether any
right-thinking person would conclude that
the respondent had behaved in such a way
that the petitioner could not be reasonably
expected to live with them, taking into
account the circumstances and the
personalities of the parties
Unreasonable behaviour
Livingstone-Stallard v Livingstone-Stallard,
1974
 Significant point: the emphasis on the objective
element in the test applied by the courts: a decree
will not automatically be granted simply because
the petitioner believes that the respondent has
behaved in a way that is unreasonable, but only if
he or she can convince the court that it is
objectively unreasonable to expect future
cohabitation
Desertion
Saunders v Saunders 1965
 The wife left the husband after almost 5 years
of marriage, alleging desertion on the basis of
his conduct towards her (expecting her to
work long hours in their shop, even when she
was heavily pregnant, failing to give her
support when there was trouble between her
and her parents-in-law, opening her mail
against her wishes, and displaying a lack of
consideration for her)
Desertion
Saunders v Saunders 1965
 Held: The conduct complained of was capable of
amounting to constructive desertion. The test to
be applied was whether the other spouse “had
been guilty of such grave misconduct that the only
sensible inference is that he knew that the
complainant would in all probability withdraw
permanently from cohabitation with him, if she
acted like any reasonable person in her position”
Constructive desertion

 when one partner causes the other partner to leave

the marital home through misconduct.
 If one partner is forced to leave the home because
the other’s misconduct, he or she has been
constructively deserted.
 In this regime, the conduct of one spouse makes it
impossible for the other to stay in the marriage.
Constructive desertion

 Physical or mental cruelty to the spouse can constitute

constructive desertion. Moreover, refusing sexual
intercourse can often be held to be constructive desertion. In
some cases, requiring a spouse to live with intrusive or
abusive in-laws was held to be constructive desertion, as
was refusing to relocate to a new town or state.
Desertion
Saunders v Saunders 1965
 Commentary: it is not necessarily the spouse who leaves the
matrimonial home who is in desertion. The concept of
“constructive desertion” dates back to 19th c., but the need
for such concept is reduced since the grounds for divorce
have been expanded. Today fewer than 1% of petitions
allege desertion
Separation
Fuller v Fuller, 1973
 The husband and wife lived together until 1964, when
the wife moved in with another man. In 1968 the
husband suffered a coronary thrombosis and was told
by his doctor that he should not live on his own. Upon
his discharge from hospital he went to live as a lodger
in the house where his wife was living, paying a
weekly sum. He ate some meals with the family, and
the wife did the washing for the whole household. In
1972 the wife petitioned for divorce on the basis of
five years’ separation. The petition was dismissed on
the grounds that they were not living apart.
Separation
Fuller v Fuller, 1973
 Held: The appeal would be allowed. The parties were not
living with each other in the same household within the
meaning of the statute, as they were not living together as
husband and wife
Separation
Fuller v Fuller, 1973
 Commentary: The case illustrates that a husband and wife
may be living apart for the purposes of the statute even if
they are living under the same roof. While the wife was
performing certain household tasks, she was not performing
them for the husband as a husband, but as a lodger
Legal terms

 Contracting party
 Ugovorna stranka; ugovaratelj
 Breach of contract
 Kršenje ugovora, povreda ugovora
 Compensation
 Naknada, odšteta
Legal terms

 Punitive
 Kazneni
 Marriage breakdown
 Prekid bračne veze, poremećaj bračnih odnosa
 Life sentence
 Doživotni zatvor
Legal terms

 Proceedings
 Sudski postupak, parnica
 Petitioner
 Podnositelj zahtjeva (za razvod)
 Respondent
 Tuženi supružnik (kod razvoda)
Legal terms

 Validity
 Pravomoćnost, pravovaljanost
 Prayer
 Tužbeni zahtjev (kod razvoda braka)
 Custody
 Skrbništvo nad djecom
Legal terms

 Suit
 Zahtjev za rastavu braka
 Pending suit
 Parnica u tijeku
 Ancillary relief
 Financijska pomoć (kod razvoda)
Legal terms

 Order
 Nalog, sudsko rješenje
 Provision
 Zbrinjavanje
 Lump sum
 Paušalna svota
Legal terms

 Property adjustment order

 Sudski nalog o podjeli imovine
 Prohibited steps order
 Nalog o postupcima koji su zabranjeni
Legal terms

 Petition
 Tužbeni zahtjev
 Registry
 Prijavni ured
 Registrar
 Voditelj registra; referent
Initial letter from petitioner’s
solicitor to respondent’s solicitor
 TURNER 7 Old Hall Street
 JONES Oxford
 SMITH OX1 7 PB
 & CO telephone: +44(0)1865
 email: info@tjs&co.com

 Your reference
 Our reference NLM/GRE.1-1
 Date 17 April 20-

 Messers Hatton, Moor & Lesley

 35 Franklin Road
 Reading
 RG 9 DZ
 FAO Frank Barnstaple
 Dear Sirs

 Our client: Mary Greaves

 Your client: Anthony Greaves

 We have been instructed...

 We have been instructed by Mrs Greaves in relation to
matrimonial matters and understand that you are in receipt
of instructions to act for Mr Greaves.
 Kindly confirm that this is the case
 Our client has come to the view that the marriage has
irretrievably broken down. She wishes to petition for
divorce on the grounds of your client’s adultery with
Michelle Lampton. We understand that your client is
prepared to admit to this for the purposes of the divorce
petition. Kindly confirm.
 We understand that it is agreed between our
respective clients that the children will
continue to live with our client at 35 Rignton
Crescent after the divorce, and that your client
will have regular contact with them, perhaps
every Saturday. This should initially take
place at 35 Rington Crescent, and our client
does not wish the children to be introduced to
Ms Lampton until they feel more settled with
the new arrangements.
 With regard to financial settlement, please provide full
disclosure of your client’s income, outgoings, and assets.
We have asked our client to collate her financial
documentation and will revert to you with this shortly.
 We look forward to hearing from you.

 Yours faithfully

 Turner, Jones, Smith & Co.

Reply from respondent’s solicitor

 Hatton, Moor & Lesley 35 Franklin Road

 Reading
 RG 1 9 DZ
 telephone: +44(0)118 673770
 fax: +44(0)118 673771
 email: enq@hm&les.co.uk

 your ref. NLM/GRE.1-1

 our ref. FWB/GRE. 2-1
 Messers Turner, Jones, Smith & Co
 7 Old Hall Street
 Oxford
 OX7PB
 WITHOUT PREJUDICE

 Dear Sirs,

 Our client: Anthony Greaves

 Your client: Mary Greaves
 Thank you for your letter of 17 April 20-. We confirm we
are in receipt of instructions to act for Mr Greaves.

 With regard to the specific points you raise:

 1 Our client is prepared to admit adultery
provided that your client agrees to the divorce
costs being split 50/50.
 2 Contact proposals: these are agreed by our
client.
 3 Financial disclosure. Our client’s financial
documentation is enclosed. Kindly
acknowledge receipt. We look forward to
receiving reciprocal disclosure in due course.
 Yours faithfully,

 Hatton, Moor & Lesley

 Enc. Financial documents
 In most cases, if the court accepts the allegations made by
the petitioner in the divorce petition and accordingly grants
a divorce, the respondent will be obliged to pay the legal
costs incurred by the petitioner in applying for the divorce.
These include the solicitor’s fees as well as the court fees
WITHOUT PREJUDICE

 It ensures that, in the event that Mrs Greaves does not agree
to the 50/50 division of the divorce costs, Mrs Greaves’s
solicitors wil not be able to present this letter to the court as
circumstantial evidence of his adultery