Divorce Law and Procedure

A petition for divorce can not be presented before a period of one year from the date of marriage (s3, MCA 1973). In order to discourage over hasty decisions to end a marriage. The English courts have jurisdiction to hear a divorce suit only where both parties are habitually resident & domicile in the England and Wales.
However a solicitor should also bear in mind the alternative solutions to protect a client during the first year: a decree of nullity or judicial separation is NOT affected by the one year rule.

Grounds for Divorce
“Irretrievable breakdown of marriage” s1 (4), MCA 1973. In order to prove the petitioner must satisfy one or more of the requirements under s1 (2) MCA 1973:

s1 (2) (a) adultery and petitioner finds it intolerable to live with the R. The two elements require to prove this is:

1. (i) adultery.
2. (ii) Intolerability.

You can only commit adultery with a member of the opposite sex and therefore does NOT apply to Civil Partnerships. The test for Intolerability is subjective: applicant need only be convince the court that the applicant finds it intolerable to live with the respondent. Which is usually sent as an assertion in an affidavit. With cohabitation: applicant can’t rely on adultery if the parties cohabit for a period of 6 month from the date of discovery of the adultery (s2 (1) MCA 1973). This allows the parties a chance to reconcile.

S1 (2) (b) behaviour: respondent behaved in such a manner that the petitioner cannot reasonable be expected to live with the respondent. Objective test: ‘cannot reasonable be expected to live with R’. Court must make a judgement about R behaviour. Taking into account the history of the marriage as well as personalities.
In an undefended case the court will look for 3/6 examples of behaviour (his first, worst & last) i.e. physical violence, verbal abuse (inc insults, threats, nagging), demanding sexual intercourse too often or not agreeing to intercourse at all. Cruelty, failure to provide money for food, affection or attention.
Merely falling out of love or being incompatible will NOT be sufficient.

S1 (2) (c) desertion: the respondent has deserted the applicant for a continuous period of at least 2 years immediately preceding the petition. There must be an intention to desert and bring the union to an end. The petitioner must NOT have agreed or consented to the separation. Nor must the respondent have had just cause to leave. And the leave must be continuous.

S1 (2) (d) two years separation with consent: parties lived apart for a continuous period of at least 2 years and respondent consents. Elements required (1) Separation (2) respondents consent.
A separation of the spouses living apart or living completely separate lives. A mental element requires spouses to regard the marriage as a mere shell and never intending to live with the other spouse.
Consent of the respondent must be acquired. Preferably in writing or given at the hearing to the district judge signed. Usually given in the acknowledgement of service form returned by the respondent. Respondent can withdraw consent at any time before decree nisi. However even after the decree nisi the respondent may withdraw consent by application to the court, who can rescind the decree if they are satisfied applicant misled the respondent.
Cohabitation of up to 6 months can be disregarded.

S1 (2) (e) 5 years separation: parties lived apart for a continuous period of at least 5 years. No need to obtain applicants consent. No defence except to deny separation or prove grave hardship under s5 MCA 1973. But maybe delayed to consider respondents financial position.
Grave hardship: dissolution of marriage would result in grave financial hardship to the respondent and maybe wrong to dissolve marriage.

Nullity is a declaration that a marriage is either void from the outset or voidable in which case its valid until the decree is obtained. Not effected by the one year rule. A marriage will be void in situations which inc:
a) Where the parties too closely related.
b) Either party was under 16yrs at the time of the ceremony.
c) Either party was already lawfully married (s11, MCA 1973).
If a marriage is void, it never existed.

Service of Petition: must be served on the respondent. Method of service usually by post, including copy of:

1. A notice of proceedings (M5) general exp of divorce procedure.
2. An acknowledgement of service (M6) proof of service.
3. A copy of the statement of arrangement for the children (M4) attached to respondent copy of petition.

Alternative Method

• Personal service by court bailiffs. Usually for a small fee + inc a small description/photo. Bailiffs serve the document personally and file a certificate of service. Which can be used as evidence of service if the acknowledgement is NOT filed by the respondent.
• Service through the petitioner (r2.9 (2) (6)) a process server is instructed or the petitioner’s solicitor.