The
divorce law of England and Wales is embodied in the Matrimonial
Causes Act of 1973. The Family Law Reform Act 1996 enacted
a new law to replace the current divorce legislation. It
provided for a more civilised and less adversarial procedure
for dissolving a marriage, including where both parties
want to divorce, the reduction of the period of two years'
separation to one year. Unfortunately, although passed by
Parliament, it was never brought into force.
The concept of 'no fault' divorce has however gradually
crept into our Divorce procedure. For example, the name
of the Co-Respondent in proceedings based upon adultery
is now unusual and one party will only be 'punished' for
'bad behaviour' in financial proceedings if their misconduct
(whether financial or otherwise) is exceptional.
Divorce proceedings are started by one spouse ('the Petitioner')
filing a Petition for divorce from the other ('the Respondent')
at Court. There is no such thing as a divorce based upon
"irreconcilable differences" in English law. Our
law only provides one basis for divorce namely "that
the marriage has broken down irretrievably".
To
prove irretrievable breakdown the Petitioner must establish
of one or more of the following "facts":-
a. (adultery); that the Respondent has committed adultery
and the Petitioner finds it intolerable to live with the
Respondent.
b. (unreasonable behaviour); that the Respondent has behaved
in such a way that the Petitioner cannot reasonably be expected
to live with the Respondent.
c. (desertion);that the Respondent has deserted the Petitioner
for a continuous period of at least 2 years immediately
preceding the presentation of the petition.
d. (2 years separation by consent); that the parties to
the marriage have lived apart for a continuous period of
at least 2 years immediately preceding the presentation
of the petition and the Respondent consents to a decree
being granted.
e. (5 years separation); that the parties to the marriage
have lived apart for a continuous period of at least 5 years
immediately preceding the presentation of the petition.
The vast majority of divorces are based on two years' separation,
adultery or unreasonable behaviour. Quite often once a couple
have decided to divorce they do not wish to wait two years
and often during that period one or other will have found
a new partner or had a relationship. The ground of adultery
is therefore often used even where the adultery was not
in fact the cause of the breakdown of the marriage which
had already occurred.
It is exceptional nowadays for a divorce to be defended.
This occasionally happens because of one party's religious
beliefs and in such a case a way forward would be to proceed
with a decree of Judicial Separation.
An undefended divorce takes approximately 2-3 months from
the date of filing of the petition to the pronouncement
of decree nisi. The Petitioner then has to wait a minimum
of 6 weeks before he or she can apply for the decree absolute.
It is the decree absolute which formally dissolves the marriage.
The procedure in an undefended divorce does not require
the couple to attend court in person.
In many cases, there is no legal or procedural reason why the decree absolute cannot be obtained on the first available opportunity. However, in some cases, the pronouncement of decree absolute is deferred until the couple have resolved the financial issues. This means that the couple retain the benefits that they would each receive on the death of the other, for example under a pension or life insurance policy, pending an overall resolution of financial issues.
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