Family Law Revision Notes
WS1: Divorce
1. Advise a client as to whether he can obtain a divorce and the
appropriate fact to use.
- Cannot present petition for divorce until one year from date of marriage (MCA,
s 3).
- Only one ground to petition = marriage broken down irretrievably (s 1(1)). To
meet, must satisfy court of one or more (usually just one) of five facts in s 1(2). If
satisfy, must grant decree nisi unless satisfied marriage not broken down (s
1(4)), e.g. back living together.
- Equivalent process to end civil partnership = dissolution, in CPA 2004, mirror
MCA 1973.
- Fact A: adultery and intolerability. Need to prove omitted adultery, AND
find it intolerable to live with them. Not available for dissolving civil partnerships,
and s 1(6) MCA says only with person of opposite sex = adultery = voluntary
sexual intercourse. Prove/infer adultery from: (a) confession
from Respondent (undefended divorce), on signed separate confession
statement or on Acknowledgment of Service returned to court by them; (b)
birth of child to wife on proof husband not father; (c) circumstantial evidence of
guilty purpose and opportunity to gratify it (e.g. enquiry agent report that
cohabiting); (d) paternity finding against R in CA proceedings;
(e) R convicted of sexual criminal offence (e.g. rape); (f) adultery found ealier
(e.g. judicial separation decree granted to Petitioner).
Also prove intolerability, but rarely a problem. Subjective test, not need to be
related to adultery – court doesn’t ask to state reason why intolerable to live with
R in undefended. Other adulterer can be added as co-respondent, but don’t
need their admission and good practice (and FPR 2010 PD7A, 2.1) not to name to
reduce animosity – only if P believes R likely to object to divorce.
P not entitled to rely on adultery if cohabit for 6 month period after discovering
(s 2(1)) (irrelevant when happened)(can be no of periods), when learn of last
adultery if multiple.
Courts will disregard cohabitation of < 6 months when considering intolerability.
- Fact B: behaviour. “Cannot reasonably be expected to live with R” =
objective test. P word alone not enough, must have regard to history of marriage
and spouse’s personalities. No need to intend to inflict misery, question of fact.
Will look at 3-6 examples of behaviour – “First, worst and last” – violent, verbal
abuse, too much/little sex, no food/money/attention
Fact cohabited for < 6 months total after last incident disregarded = consider
reconciliation. Living for longer than 6 months is not an absolute bar, but court
take into account, longer = less likely will grant unless P can show good reason
why continued.
- Fact C: desertion. “Continuous period of at least two years immediately
preceding presentation of petition.” (a) Must be a separation. P must establish if
WS1: Divorce
1. Advise a client as to whether he can obtain a divorce and the
appropriate fact to use.
- Cannot present petition for divorce until one year from date of marriage (MCA,
s 3).
- Only one ground to petition = marriage broken down irretrievably (s 1(1)). To
meet, must satisfy court of one or more (usually just one) of five facts in s 1(2). If
satisfy, must grant decree nisi unless satisfied marriage not broken down (s
1(4)), e.g. back living together.
- Equivalent process to end civil partnership = dissolution, in CPA 2004, mirror
MCA 1973.
- Fact A: adultery and intolerability. Need to prove omitted adultery, AND
find it intolerable to live with them. Not available for dissolving civil partnerships,
and s 1(6) MCA says only with person of opposite sex = adultery = voluntary
sexual intercourse. Prove/infer adultery from: (a) confession
from Respondent (undefended divorce), on signed separate confession
statement or on Acknowledgment of Service returned to court by them; (b)
birth of child to wife on proof husband not father; (c) circumstantial evidence of
guilty purpose and opportunity to gratify it (e.g. enquiry agent report that
cohabiting); (d) paternity finding against R in CA proceedings;
(e) R convicted of sexual criminal offence (e.g. rape); (f) adultery found ealier
(e.g. judicial separation decree granted to Petitioner).
Also prove intolerability, but rarely a problem. Subjective test, not need to be
related to adultery – court doesn’t ask to state reason why intolerable to live with
R in undefended. Other adulterer can be added as co-respondent, but don’t
need their admission and good practice (and FPR 2010 PD7A, 2.1) not to name to
reduce animosity – only if P believes R likely to object to divorce.
P not entitled to rely on adultery if cohabit for 6 month period after discovering
(s 2(1)) (irrelevant when happened)(can be no of periods), when learn of last
adultery if multiple.
Courts will disregard cohabitation of < 6 months when considering intolerability.
- Fact B: behaviour. “Cannot reasonably be expected to live with R” =
objective test. P word alone not enough, must have regard to history of marriage
and spouse’s personalities. No need to intend to inflict misery, question of fact.
Will look at 3-6 examples of behaviour – “First, worst and last” – violent, verbal
abuse, too much/little sex, no food/money/attention
Fact cohabited for < 6 months total after last incident disregarded = consider
reconciliation. Living for longer than 6 months is not an absolute bar, but court
take into account, longer = less likely will grant unless P can show good reason
why continued.
- Fact C: desertion. “Continuous period of at least two years immediately
preceding presentation of petition.” (a) Must be a separation. P must establish if
