Divorce and Dissolution:

The End of Marriage and Civil Partnership

Family LawSussex 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 Childrendevelopmental effectslife chances

Effects on SpousesWomen, poverty and divorceMen, remarriage and step & new

familiesConsequences are gendered…

History

The arrival of a legal divorce processDivorce and Matrimonial Causes Act

1857Ground: 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 White’s 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 OutlineThe 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 respondent’s

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 court’s 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