Family Law – Divorce
Divorce
Application for divorce is known as a petition. Petitioner v. Respondent.
Step 1: consider whether any legal alternatives to divorce are appropriate
Nullity – occurs where there is a problem with formalities of marriage. Marriage can either be void or
voidable.
Void – fundamental defect with marriage such that it was never valid e.g. one party was under
16, one party was already married or the parties are close relatives
Voidable – marriage is valid unless it is avoided by one of the parties e.g. non-consumption,
lack of consent
Judicial Separation – formal separation based upon proving one of the five facts of divorce.
Does not dissolve marriage, so couple will still need to divorce at a later stage
No need to prove irretrievable breakdown
Enables application for the full range of orders relating to children and financial relief
Absolute Bar – no divorce in the first year of marriage – s 3(1) MCA 1973. Petitioner can still rely on
events during the first year in their petition for divorce – s 3(2).
If applicant wishes to apply for interim financial remedies, they may wish to apply for judicial
separation until they can initiate the divorce petition at the end of the first year
Step 2: Set out the ground for divorce
One ground – marriage has broken down irretrievable – s 1(1)
Petitioner must prove one of the facts to satisfy the ground – s 1(2)
Step 3: Identify the facts used to demonstrate irretrievable breakdown
One fact must be proved – Buffery v. Buffery
Proving one of the five facts leads to a presumption of irretrievable breakdown
Divorce is fault based. The fact that a couple has irreconcilable differences will not be grounds
for divorce – Owens v. Owens.
If petitioner wishes to divorce without having to wait for 2 or even 5 years they will have to be
able to demonstrate either adultery or behaviour on the part of the respondent making
continued cohabitation unreasonable
Fact A – Adultery (and intolerability)
S 1(2)(a) – the respondent has committed adultery and the petitioner finds it intolerable to live with the
respondent.
Divorce
Application for divorce is known as a petition. Petitioner v. Respondent.
Step 1: consider whether any legal alternatives to divorce are appropriate
Nullity – occurs where there is a problem with formalities of marriage. Marriage can either be void or
voidable.
Void – fundamental defect with marriage such that it was never valid e.g. one party was under
16, one party was already married or the parties are close relatives
Voidable – marriage is valid unless it is avoided by one of the parties e.g. non-consumption,
lack of consent
Judicial Separation – formal separation based upon proving one of the five facts of divorce.
Does not dissolve marriage, so couple will still need to divorce at a later stage
No need to prove irretrievable breakdown
Enables application for the full range of orders relating to children and financial relief
Absolute Bar – no divorce in the first year of marriage – s 3(1) MCA 1973. Petitioner can still rely on
events during the first year in their petition for divorce – s 3(2).
If applicant wishes to apply for interim financial remedies, they may wish to apply for judicial
separation until they can initiate the divorce petition at the end of the first year
Step 2: Set out the ground for divorce
One ground – marriage has broken down irretrievable – s 1(1)
Petitioner must prove one of the facts to satisfy the ground – s 1(2)
Step 3: Identify the facts used to demonstrate irretrievable breakdown
One fact must be proved – Buffery v. Buffery
Proving one of the five facts leads to a presumption of irretrievable breakdown
Divorce is fault based. The fact that a couple has irreconcilable differences will not be grounds
for divorce – Owens v. Owens.
If petitioner wishes to divorce without having to wait for 2 or even 5 years they will have to be
able to demonstrate either adultery or behaviour on the part of the respondent making
continued cohabitation unreasonable
Fact A – Adultery (and intolerability)
S 1(2)(a) – the respondent has committed adultery and the petitioner finds it intolerable to live with the
respondent.
