- In England & Wales the divorce law is governed by the Matrimonial Causes Act 1973.
- In England & Wales obtaining a divorce requires a written application (called the petition) to the County Court and spouses have to apply to that court for their divorce.
- The applicant has to prove that the marriage has broken down irretrievably and has to provide evidence of one of the five facts listed below.
- An application for divorce can be made at least one year after the date of the marriage.
However, evidence from the period within one year of the date of the marriage can be used to prove that the marriage has broken down irretrievably.
- The sole ground for divorce is the irretrievable breakdown of the marriage.
- In order to show that the marriage has broken down irretrievably it is necessary to produce evidence of one or more marital faults which are as follows:
- that the other spouse has committed adultery and that the applicant finds it intolerable to live with him or her;
- unreasonable behaviour, which means that the other spouse has behaved in such a way that the applicant cannot reasonably be expected to continue to live with him or her;
- desertion, which means that the other spouse has left the applicant for a period of two years before the time of the application for divorce;
- separation of the parties for a period of two years before the application for divorce (with the consent of the other spouse);
separation for a period of five years before the application for divorce (without the consent of the other spouse).
- A legal separation in its generic sense means a separation of husband and wife through a court order to live separately.
- A judicial separation is an option for spouses whose marriage has broken down irretrievably but who do not wish to remarry.
- It is possible to apply for an order for divorce after an order for judicial separation has been given.
- The conditions for a judicial separation are the same as those for a divorce.
- The applicant has to provide evidence that the marriage has broken down irretrievably and provide evidence of one or more of the facts required to prove the breakdown of the marriage.
- The spouses will no longer be required to live together. If one of the spouses dies without having made a will (intestate), their property will be distributed under the intestacy rules relating to the division of property, with the exception that the property will be distributed as if the former husband or wife had already died, and any benefits they would have received will be lost.
The same provisions for the division of property as are available on divorce are also available to the court with a judicial separation.
- A marriage is declared to be annul or there has been no marriage may be found in the following two categories
- Void marriages
- Voidable marriages at the option of the aggrieved party
- The marriage is declared 'void', which means that the marriage was never valid and never existed.
The marriage may be 'voidable', if one of the spouses apply for the marriage to be declared invalid. It is possible for the marriage to continue if both spouses are content.
A marriage is void and invalid if:
- It does not fulfil the terms of the Marriage Acts 1949 to 1986 in that:
- The parties are related too closely.
- Either of the parties is under the age of sixteen.
- The proper formalities for marriage have not been completed.
At the time of the marriage one of the parties was already legally married.
The parties are not of different sexes. One married partner must be male and the other female for a marriage to be valid.
- In the case of a polygamous marriage completed outside England and Wales, where one of the spouses was domiciled in England and Wales at the time of the marriage.
If a marriage is void it is completely invalid and is treated as if it had never existed.
- A marriage is voidable in the following circumstances at the option of one of the parties:
- That the marriage has not been consummated because of the failure of one of the spouses to be able to consummate it.
- That the marriage has not been consummated because of the refusal of one of the spouses to consummate it.
- That one of the spouses did not consent to the marriage properly, because they were under pressure and were forced to agree, were mistaken as to the legal effects of the marriage, or were mentally incapable of appreciating the effects of the decision to marry.
- That at the time of the marriage one of the spouses was suffering from a mental illness of such a type as to make them unfit for marriage.
- That at the time of the marriage one of the spouses was suffering from venereal disease in a communicable form.
- That at the time of the marriage the wife was pregnant by some one other than the husband.
If a marriage is voidable it is treated as being invalid from the date the order of annulment of the marriage is made absolute.
PRESUMPTIONS IN VOID AND VOIDABLE MARRIAGES
- The marriage is treated as being in existence up until that time it is declared to be void or voidable.
- With both void and voidable marriages the court makes arrangements for the division of property in the same way as in the case of a divorce.
PROCEDURE-DIVORCE & LEGAL SEPARATION
- An application for divorce, called a petition, may be presented to any divorce county court (including the Principal Registry of the Family Division in London).
- One cannot start a petition for divorce unless he/she has been married for more than one year and must be able to prove to the court that he/she has reasons (or 'grounds') for saying that the marriage is at an end.
- The petition form is available from any divorce county court.
3 copies of the form (divorce petition)
If the divorce is for the reason of adultery with someone the petitioner is naming in his/her petition, an extra copy of the petition for that person is required.
- A statement of arrangements in respect of the children is required if the children are under the age of 18.
The marriage certificate (Original) accompanied with a certified translation if desired.
When the petition is sent to the other spouse (respondent) the court will send the other person a form (notice of issue of petition) and tell the petitioner that the petition was sent to the respondent.
Answer to the Petition
The respondent files the answer to the petition soon after receiving the notice with in a reasonable time and appear before the court on the date specified in the notice.
It is necessary to produce evidence of one or more of these faults, together with evidence that the person seeking a divorce can no longer live with their spouse.
The court is required to inquire as far as is possible into the facts alleged by the applicant (petitioner) and into any facts alleged by the other spouse (respondent).
If the court is satisfied on the evidence that the marriage has broken down irretrievably, a decree of divorce will be granted by the District Judge.
The court may adjourn the proceedings at any time to allow the spouses to try to reconcile their differences and save the marriage.
- If the court is satisfied that the marriage has broken down irretrievably, it will first issue an interim decree 'nisi'.
- After a period of six weeks an application can be made to make the decree absolute.
There is no time limit on an application for a decree to be made absolute.
However, if the application for the decree absolute is lodged more than 12 months after the decree nisi, the applicant will be required to lodge with it a written explanation:
- giving reasons for the delay;
- stating whether they and their spouse have lived with each other since the decree nisi and, if so, between what dates; and
- stating whether, being the wife, she has given birth to any child since the decree nisi and, if so, stating the relevant facts and whether or not it is alleged that the child is or may be a child of the husband.
The District Judge may require the applicant to file a sworn statement verifying the explanation she has given and can make such order on the application as the District Judge thinks appropriate.
After taking into account the petition, answer to the petition, evidences, and after hearing both the parties the court may-
- by making an order (to be known as a divorce order), dissolve a marriage; or
- by making an order (to be known as a separation order), provide for the separation of the parties to a marriage.
However, a separation order remains in force-
- while the marriage continues; or
- until cancelled by the court on the joint application of the parties.
- A separation order, which is made before the second anniversary of the marriage may not be converted into a divorce order under this section until after that anniversary.
The couple are no longer required to live together. Each spouse is free to decide if they wish to keep or change their surname.
DIVISION OF PROPERTY
- The division of property on divorce in England & Wales is governed by the Matrimonial Causes Act 1973.
- On granting a decree of divorce, nullity or judicial separation, or afterwards, to order that property should be transferred from one spouse to the other, or to a child of the family, or to another person for the benefit of a child of the family.
- The welfare of any child of the family under the age of 18 is the matter which needs to be considered at the first place.
- The other matters are:
- the income, earning capacity, property and other financial resources which each of the spouses has or is likely to have in the foreseeable future;
- the contribution, both financial and other, made by each of the spouses to looking after the home and children is also considered
- the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the age of each party and the duration of the marriage;
- any physical or mental disability suffered by either party;
- the contributions which each party has made, or is likely to make in the future to the welfare of the family;
- the conduct of the spouses, if it is such that it would be unfair to disregard it when considering how property should be divided;
the value to each of the spouses of any benefit which that party will lose the chance of acquiring because of the divorce or annulment.
- The fee to commence divorce proceedings is £180 while the fee for filing an answer has increased to £150.
- The fee for issuing ancillary relief proceedings is £210.