Published: Wed, 07 Mar 2018
Family Law: Divorce
These Family Law pages were originally prepared by the Law Department at St. Brendan’s Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan’s College or Parallelewelten.net This Chapter was last updated on 1 August 2000
A marriage may come to an end in various ways, the most common of which is still the death of one partner. A decree of nullity in the case of a void marriage is evidence that there was never a valid marriage in the first place; the decree is not strictly necessary but is normally sought for the sake of certainty and because it allows the court to order ancillary relief. Where a marriage was merely voidable, the decree brings to an end the marriage which existed until then. All these have been considered in the previous chapter. This chapter deals with termination by divorce, which is more common in Britain than anywhere else in Western Europe. More than one in three marriages end in divorce, a proportion about twice the average for the rest of the European Community, and there were over 150 000 divorces granted in 1988 (compared with a mere 400 decrees of nullity). After fifty years of increasing divorce, however, the rate has now flattened out somewhat.
Various factors have been put forward to explain the high divorce rate: greater social mobility, the liberation of women, longer life expectancy, the social acceptability of divorce, the rise of the permissive society, the decline of religion, the increasing number of childless companionate marriages, and the liberalisation of the Divorce Reform Act 1969. It remains to be seen whether the Family Law Act 1996, which introduces stricter and more cumbersome procedures in some areas, will have the desired effect in bringing the divorce rate down if and when it comes into force.
History of divorce law
Until the mid-nineteenth century, the law largely adopted the Christian view of marriage as an indissoluble lifelong union. The ecclesiastical courts could grant a divorce a mensa et thoro, but this was more like a judicial separation than a divorce: the parties were free to live apart but could not marry again. This apart, the only way of obtaining a divorce was by a private Act of Parliament, and this lengthy and expensive procedure was available to very few people. From the first such Act, promoted by the Duke of Norfolk in 1700, only 317 Acts were passed (nearly all at the husband’s instigation) in the next 150 years. The first liberalisation came in the Matrimonial Causes Act 1857, which enabled the Court of Divorce and Matrimonial Causes to grant a divorce where the petitioner could prove not only that the respondent had committed adultery, but also that there had been no collusion or condonation. This was difficult even for a male petitioner, but a wife had to prove aggravated adultery – that is, adultery incest, cruelty, bigamy, sodomy or desertion. This extra requirement was abolished in 1923, but adultery (treated as a “matrimonial offence”) remained the only ground of divorce, and could be defeated by any evidence of collusion between the parties.
The Matrimonial Causes Act 1937, based on a private members’ bill introduced by A P Herbert, introduced three further grounds for divorce: cruelty, desertion for at least three years, and incurable insanity. However, the emphasis was still on proving a matrimonial offence by the respondent (except in the case of insanity), and condonation and connivance remained as bars. There was also a bar on any divorce within the first three years of marriage.
Flaws in the revised law soon became apparent. First, it seemed wrong to many people that the law should insist on preserving in name a marriage which no longer existed in any real sense. Second, the emphasis on proving a matrimonial offence seemed out of place when so many marriages broke down because of minor faults in both parties. The enforced separation of war service inevitably led to many marriages’ failing, and thus highlighted these problems. And third, the common practices employed to satisfy the requirements of the Act – the overnight stay in a Brighton hotel, and so on – brought the law as a whole into disrepute.
Until 1969 it was impossible for a “guilty” spouse to divorce an “innocent” partner. As long as the innocent spouse took care not to be caught in adultery, he or she could effectively block the other’s divorce and remarriage. Where both parties had committed adultery – not an uncommon situation where the marriage had broken down – the petitioner had to give full details of her own misdemeanours and ask the court to exercise its discretion in her favour.
It was not until the mid-1960s, however, that parallel reports by the Law Commission and the Church of England led to fundamental changes. The aims of the reforms, as set out by the Law Commission (Cmnd 3123, 1966), were to buttress, rather than undermine, the stability of marriage; and when, regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.
The Law Commission therefore concluded that the concept of the matrimonial offence should be removed, and agreed with the Archbishop’s committee that the irretrievable breakdown of the marriage should be the sole criterion. They proposed that such a breakdown should be proved by any one of the “five facts” set out later, and that the law should encourage reconciliation, prevent injustice to economically vulnerable spouses, and protect children. These recommendations were enacted in the Divorce Reform Act 1969, and (with some fairly minor changes) remain in force as the underlying principles of divorce law today.
Alongside these changes in substantive law have come changes in procedure. When the responsibility for divorce was transferred from the ecclesiastical to the civil courts, it was still regarded as a serious matter to be dealt with only by High Court judges sitting in London. Only from 1967 could undefended divorces be heard in specially designated County Courts, and defended divorces continued to be dealt with in the High Court. All divorce petitions were still heard in open court, with the petitioner expected to give oral evidence to prove the adultery, cruelty or other facts alleged. This was distressing for the parties, expensive for the Legal Aid fund, and very time-consuming for the judges even though an undefended divorce case typically took no more than ten minutes.
Between 1973 and 1977 a “special procedure” was introduced to allow undefended divorces to be granted with simplicity, speed and economy. Under this procedure, the district judge examines the papers and affidavits submitted by the parties. Unless these give any reason for doubting that the marriage has irretrievably broken down, the district judge grants a decree of divorce with a minimum of formality – the parties need not even attend – and the only public part of the trial is the announcement of the decree in open court. This “special procedure” has now become the norm, and defended divorces are nowadays very rare: in 1990 there were only four decrees of divorce following a defended action, compared with 150 000 granted through the “special procedure”.
Dackham v Dackham  2 FLR 358, CA
H and W were granted a decree nisi and both applied for ancillary relief. The registrar mistakenly thought he could not hear their applications unless the decree was made absolute, so he granted a decree absolute on the spot and made an order involving the transfer of W’s interest in the marital home to H. When H died shortly afterwards, W appealed against the order, and the County Court judge and the Court of Appeal allowed her appeal. The registrar had not complied with various mandatory requirements for making a decree absolute (e.g. searching the court minutes for any warnings), and the decree and subsequent order were consequently void.
Callaghan v Hanson-Fox  2 FLR 519, Brown P
A man P, whose former wife died intestate some ten years after their divorce, claimed the divorce decree had been obtained by fraud and was therefore invalid. Dismissing his claim, the judge said a decree absolute is unimpeachable unless it was granted ultra vires or by an irregular procedure.
W v W (Decree absolute) (1998) Times 31/3/98, Bracewell J
H and W separated and H left the country leaving very few assets behind him. W began divorce proceedings and was granted a decree nisi; she was awarded maintenance pending suit, but H did not cooperate in ancillary proceedings to determine the distribution of capital. Eighteen months later H (who wanted to marry again) was granted leave to apply to have the decree made absolute, but W’s appeal succeeded. If H’s application were granted, said the judge, there was a very real risk that he would wash his hands of the matter and thereby prejudice W’s position in the ancillary proceedings.
Grounds for divorce
The supposed aim of the 1969 legislation (now consolidated in the Matrimonial Causes Act 1973) was to abolish the former “matrimonial offences” and substitute the breakdown of the marriage as the sole ground for divorce. This has been achieved on paper, but the reality is rather different.
Matrimonial Causes Act 1973 s.1(1)
… 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.
Matrimonial Causes Act 1973 s.1(2)
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 …
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties 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;
(e) that the parties have lived apart for a continuous period of at least five years years immediately preceding the presentation of the petition.
Matrimonial Causes Act 1973 s.1(4)
If the court is satisfied on the evidence of any such fact as is mentioned … above, then unless it is satisfied … that the marriage has not broken down irretrievably, it shall … grant a decree of divorce.
It is important to read these three subsections together, because ss.1(2) and 1(5) together rob s.1(1) of much of its force. No matter how bad the relationships between the parties, s.1(2) makes it plain that the marriage has not irretrivably broken down unless one of the five facts can be established, and s.1(5) then suggests that proof of any one of the five facts is sufficient on its own unless there is convincing evidence to the contrary. The cases show how these requirements have been applied.
Buffery v Buffery  2 FLR 365, CA
H and W had been married for 20 years; their children had grown up and left home. H and W had gradually “drifted apart”; W complained that H did not take her out, that they had lost the ability to talk to each other, and that they had “nothing in common”. Her petition for divorce was denied: although the marriage had apparently broken down, W had not shown any unreasonable behaviour on H’s part and so had failed to satisfy the requirements of s.1(2)(b).
A person commits adultery if he or she has voluntary sexual intercourse with another person, one or both of them being married to someone else. The intercourse must involve some penetration but need not be complete. Oral and anal intercourse are probably not adultery in themselves, but between a man and a woman may give rise to an evidential presumption of vaginal intercourse as well; they may also amount to “behaviour …” under s.1(2)(b). The first of the five facts involves a two-part test. It is not enough to show that the respondent has committed adultery; the petitioner must also show that she finds in intolerable to live with the respondent. The petitioner’s own adultery is not a ground for divorce, and if the petitioner as well as the respondent has committed adultery it may be difficult to convince the court that it is intolerable for them to continue living together.
Barnacle v Barnacle  P 257, Wallington J
A woman W petitioned for divorce, but the King’s Proctor intervened to argue that the decree nisi should not be made absolute because W’s petition had not admitted her own adultery. Evidence was given that when W’s solicitor’s clerk asked W whether she had committed adultery he had not been too explicit, and W said she understood adultery to mean having a child by someone else. Accepting this evidence and allowing the decree to stand, the judge said he had personally met otherwise well-educated men who thought it was not adultery if the woman was over 50, and the King’s Proctor had come across people who thought it was not adultery during the daytime.
Clarkson v Clarkson (1930) 143 LT 775, Merrivale P
A sailor H returned from foreign service to find his wife P pregnant, and petitioned for divorce on the grounds of W’s adultery. W claimed to have been raped by a stranger, and there was some corroborative evidence. The judge said adultery required voluntary intercourse; he accepted W’s story and therefore refused a decree.
This is the most common ground for divorce nowadays, and the types of behaviour regarded as unreasonable are very varied.
Dowden v Dowden (1978) 8 Fam Law 106, CA
W petitioned for divorce on the grounds of H’s behaviour: he was uninterested in sex, she said, and their physical sex was very brief and occurred only about once a month. The judge refused a decree and the Court of Appeal agreed: a low sex drive cannot in itself be regarded as unreasonable behaviour.
Mason v Mason (1980) 11 Fam Law 143, CA
After five years’ marriage W refused to have sex with H because she was frightened of becoming pregnant; when H had a vasectomy W agreed to sex about once a week. Three months later H left to live with another woman, and obtained a decree nisi on the grounds that W had behaved unreasonably. Discharging the decree, Ormrod LJ said it seemed impossible to say that a limit of once a week was unreasonable.
Bannister v Bannister (1980) 10 Fam Law 240, CA
W petitioned for divorce on the grounds of H’s unreasonable behaviour. He had not taken her out for two years, he himself stayed out at night without telling her where he was going, he did not speak to her at all unless it was unavoidable, and he generally led an independent life so far as possible. Allowing W’s appeal against the judge’s refusal of her petition, Ormrod LJ said the phrase “unreasonable behaviour” was a convenient but misleading shorthand. The test was not whether H’s behaviour was unreasonable in itself, but whether it was such that W could not reasonably be expected to continue living with him.
W suffered from various neurological disorders; she was unable to do housework and was incontinent, and as her condition deteriorated she became aggressive and destructive. H petitioned for divorce on the grounds of her behaviour, and the judge granted a decree nisi. It was not enough for H to show that he found it intolerable to live with W, he said. H must also show that this situation was the result of W’s behaviour, but this could include behaviour that was involuntary and stemmed from mental or physical illness or injury.
Carter Fea v Carter Fea (1987) 17 Fam Law 131, CA
W sought a divorce because of H’s financial irresponsibility, which were affecting her mental and physical health. The judge granted a decree nisi and this was upheld on appeal: the Court of Appeal said mere financial difficulties would rarely be enough on their own, but in the instant case the judge had looked very carefully at the particular facts and his decision could not be faulted.
It is not clear whether adultery can be regarded as behaviour justifying a petition under this rather than the previous subsection.
Wachtel v Wachtel (1972) Times 1/8/72, Ormrod J
After ten years of marital difficulties, W formed a relationship with a man M. H petitioned for divorce under s.1(2)(a), and (with the leave of the court) subsequently added s.1(2)(b) as an alternative. The evidence suggested that W and M had not actually had sex, said the judge, but the closeness of the association was such that H could not reasonably be expected to continue living with W. He therefore granted a decree on this ground rather than on the ground of adultery.
Petitions based on desertion are very rare nowadays: it is much easier to prove simple separation and the deserting spouse (if he can be traced) is unlikely to refuse consent. Desertion requires proof of both the fact and the intention to desert (the animus deserendi): an enforced absence is not sufficient.
G v G  P 72, Hill J
A woman W, now living in England, sought an order for the restitution of conjugal rights. Her husband H lived in Calcutta and worked as a partner in a business there; W’s extravagance and tendency not to pay her debts were such that the other partners threatened to expel H if he brought W to live in India. The judge refused the order W sought: there is no desertion, he said, if the parties are separated for some good cause, and that certainly includes the need to earn a living.
Quoraishi v Quoraishi  FLR 780, CA
H and W1 were married in Bangladesh (then East Pakistan), but subsequently came to live in England. H decided to take a second wife W2, which was permissible under the Islamic law of Bangladesh, but continued living in England with W1. He then went to Bangladesh to consummate the second marriage, but when he returned to England W1 refused to live with him. H petitioned for divorce on the grounds of W1’s desertion, but his petition was denied. H knew he was endangering his first marriage by taking a second wife, and W1 had reasonable grounds for leaving him.
The law also recognises the concept of “constructive desertion”, where the behaviour of one spouse is such as to leave the other no real alternative but to move out: in those circumstances, the spouse who moves out can still claim to have been deserted by the other. The introduction of non-molestation orders and other remedies for domestic violence has made this less important than it used to be, but it is still of some significance.
Morgan v Morgan (1973) 117 SJ 223, Sterling J
A couple separated after 32 years’ marriage; W (who owned the matrimonial home) told H to leave, and found a room for him and bought a flat for herself. After three years’ separation they tried for a reconciliation, but abandoned the attempt after three months. After two more years H petitioned for divorce on the basis of W’s desertion and unreasonable behaviour, and W cross-petitioned on H’s desertion. On the facts, the judge dismissed both the petition and the cross-petition, saying the parting after the failed reconciliation was by mutual consent and could not therefore constitute desertion. But obiter, an agreement to separate after a failed reconciliation lasting under six months should not necessarily be fatal to a petition based on divorce: the object of s.3 of the 1969 Act was to make reconciliation easier rather than harder.
Desertion cannot be regarded as “behaviour” justifying a petition under the previous subsection.
The parties are regarded as living apart if they are not living in “the same houshold”. This is a very flexible concept: they may be still living under the same roof, and the test seems to be the extent to which they share a common life, together with the nature of their relationship. There is certainly no requirement that they should not speak to one another for this time.
Piper v Piper (1978) 8 Fam Law 243, CA
H and W separated after 13 years’ marriage. They had separate flats, but over the next 5 years H often visited W for weekends, three times for a whole week, and once for more than four months; the visits often included sexual intercourse. H was granted a decree nisi on the basis of five years’ separation, and the decree was affirmed on appeal. The trial judge had decided as a fact, said Ormrod LJ, that H was “just visiting” and that the parties had not been “living together” during the relevant time. It would have been different had H made his home in W’s flat and simply slept in his own room elsewhere during the week.
The tests for the two- and five-year separation facts are essentially the same except for the respondent’s consent and the time required, but the non-consenting respondent has a defence to the five-year claim.
Matrimonial Causes Act 1973 s.5(1)
The respondent to a petition for divorce in which the petitioner alleges five years’ separation 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. (Note that the hardship must result from the divorce, not simply from the breakdown of the marriage.)
Julian v Julian (1972) 116 SJ 763, Cusack J
H and W, both about 60 and in poor health, separated after more than 25 years’ marriage, the day after H retired from the police force. Five years’ later, H (who wanted to marry another woman) petitioned for divorce, but W successfully opposed it. The loss of the potential widow’s pension would be a grave financial hardship to W, said the judge, whereas H (in view of his age and health) would not suffer any great hardship from being unable to remarry.
Banik v Banik (No.2) (1973) 117 SJ 874, Hollings J
The facts are as set out above. The judge found as fact that if the decree was granted, W would remain living with her brother’s family in Calcutta in an unchanged position, dressing and being regarded as still a married woman. She would not be a social outcast, and the decree should therefore be granted subject to an order for H to make modest periodic payments.
Lee v Lee (1974) 5 Fam Law 48, CA
H and W, both in their 60s, had been married for over forty years. For the last twenty years they had lived apart, H with another woman and W in the former matrimonial home, on which H still paid the mortgage instalments and other outgoings. H sought a divorce, and proposed to provide W with an annuity to compensate for the loss of a civil service widow’s pension, together with half the proceeds of the sale of the house. W successfully opposed the petition: H’s proposals were not unreasonable, said the judge, but the sum proposed would not enable W to buy a one-bedroomed flat in the area. Moreover, W had the burden of looking after a seriously ill son S, and the disruption to her life would in itself be a grave hardship. H appealed, and by the time the appeal was heard S had died; his appeal was therefore allowed, and the case was remitted to the High Court for a financial provision order to be made.
Jackson v Jackson  Fam Law 675, CA
A 62-year-old W resisted H’s petition for divorce after five years’ separation, claiming it would cause her grave financial hardship by the loss of a possible widow’s pension. The Court of Appeal doubted whether she would suffer any loss at all because of the social security system, but said that in any event it would not be grave hardship – the potential sum involved was only £15 per week, and W had an income of £60 already – and affirmed the judge’s decision to grant the decree.
It is still the case that condonation of a “matrimonial offence” can in some circumstances operate as a bar to a divorce petition. However, the courts are keen to encourage genuine attempts at reconciliation, and periods of cohabitation of up to six months can be disregarded in determining whether or not the marriage has irretrievably broken down.
Matrimonial Causes Act 1973 s.2(1)
One party to a marriage shall not be entitled to rely for the purposes of s.1(2)(a) above on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period … or periods exceeding six months.
Matrimonial Causes Act 1973 s.2(3)
Where … the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him, , but the parties to the marriage have lived with each other for a period or periods after … the final incident relied on … that fact shall be disregarded … if thelength of that period or of those periods together was six months or less.
Matrimonial Causes Act 1973 s.2(5)
In considering … whether the period for which the respondent has deserted the petitioner or the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period … or periods (not exceeding six months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period of desertion, or of the period for which the parties lived apart, as the case may be.
Matrimonial Causes Act 1973 s.3
(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.
This is an absolute bar, though other forms of relief (such as a non-molestation order or an order for financial support) can be sought earlier.
A decree of judicial separation does not terminate a marriage, but relieves the partners of any obligation to live together. Such decrees have become less common as divorce has become easier, and as the courts have acquired greater powers to exclude a spouse responsible for violence towards the other. To obtain a decree of separation, the petitioner must satisfy the court that one of the “five facts” exists – adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation – but need not show irretrievable breakdown. While the decree is in force, the parties remain married to one another and are not free to marry anyone else. However, the petitioner is no longer obliged to live with the respondent (though the law has no mechanism for compelling the parties to live together even before a formal separation), nor to support him or her financially (subject to any court order for ancillary relief). On the other hand, neither spouse is entitled to inherit on the other’s intestacy.
Judicial separation is often, but not invariably, a first step towards divorce, and s.4(1) of the Matrimonial Causes Act 1973 states expressly that a court shall not be precluded from granting a decree of divorce by reason only that a decree of judicial separation has previously been granted on substantially the same facts.
Mediation and conciliation
The law has long encouraged married couples to resolve their differences and sustain their marriage in being, and “marriage guidance” counsellors have played an important part in this. Trained counsellors – many of them volunteers – talk with the parties together or separately and try to help them reach an amicable agreement. The Family Law Act 1996 (see below) was intended to give a new importance to such mediation, by making it a prerequisite to the granting of a divorce, and s.22 of the Act, authorising the allocation of public funds to marriage support services, was among the first sections to be brought into force. Also brought into force at the same time was Part III of the Act, which makes provision for legal aid to be available to the parties in mediation proceedings.
Recognition of foreign divorces
Different states have different rules governing divorce, and different religions and cultures have different practices even within a single state. Questions can therefore arise as to the validity in English law of divorces performed otherwise than according to the rules and procedures above. The basic rules are set out in ss.44-52 of the Family Law Act 1986. In s.44, it is made clear that with the exception of some divorces which took place before the Act came into force, any divorce or annulment obtained in any part of the British Isles is to be regarded as effective if and only if it was granted by a civil court.
On the other hand, s.46 of the Act provides that a divorce, annulment or separation obtained overseas is to be recognised by English law if and only if it is effective under the law of the country in which it was obtained and:
if it was obtained “by means of proceedings”, either party was at the relevant date either a national of that country, or domiciled in that country, or habitually resident in that country; or
if it was obtained “otherwise than by means of proceedings”, either party was at the relevant date domiciled in that country and the other in that country or in another country in which that divorce &c is recognised as valid, and neither was habitually resident in the United Kingdom during the previous year.
These provisions are based on similar provisions in the Recognition of Divorces and Legal Separations Act 1971, which in turn was based on earlier law, so some older cases are still relevant to the interpretation and application of the Act.
Bater v Bater  P 209, CA
H and W were married in England, but after nine years H went to New York, where he lived with another woman. W went to New York the following year and was granted a divorce on the grounds of H’s adultery (though at that time, a wife could not divorce her husband in England for adultery alone). W subsequently married B, and some years later B petitioned an English court for a decree of nullity. His petition failed. The Court of
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