1. The Development of Divorce Law

The law governing divorce is laid down in the Matrimonial Causes Act 1973 and procedural rules are laid down in the Family Proceedings Rules 1991. Part I of the Matrimonial Causes Act 1973 contains the law on the ground for divorce. Part II contains the law on property and finance on divorce. The rules governing jurisdiction to grant a divorce are laid down in the Domicile and Matrimonial Proceedings Act 1973, which provides that the divorce courts in England and Wales have jurisdiction to hear a petition for divorce (and for nullity and judicial separation) if either party to the marriage is domiciled in England or Wales when divorce proceedings are commenced; or either party was habitually resident in England and Wales for one year before commencement of divorce proceedings. Jurisdiction is not lost by a change of domicile or residence after commencement of proceedings.

2. The Ground for Divorce

KEY DEFINITION The ground for divorce is that the marriage has broken down irretrievably. But that can only be proved by showing one of the 'five facts'.

Irretrievable breakdown--------None of the 5 facts proved----------No divorce possible

Irretrievable breakdown-------- One of the 5 facts proved------------Divorce possible

No irretrievable breakdown--------One of the 5 facts proved--------No divorce possible

Buffery v. Buffery [1988] 2 FLR 365 Concerning: the ground for divorce Facts It was found by the judge that the marriage had irretrievably broken down. The couple had nothing in common, never went out and were unable to communicate with each other. However, none of the five facts could be made out. Legal principle A divorce could not be granted. Even if the marriage had broken down irretrievably, a divorce could only be granted where one of the five facts was made out. The couple would have to separate for two years in order to get a divorce.

Fact 1. Adultery

Matrimonial Causes Act 1973, section 1(2)(a) (...) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.

KEY DEFINITION Adultery is voluntary sexual intercourse between a man and a woman, one or both of whom is married. Sexual intimacy short of sexual intercourse will not amount to adultery.

In order to rely on the adultery fact, it is necessary to show two things: - the respondent has committed adultery - the petitioner finds it intolerable to live with the respondent.

Reading:

Cleary v. Cleary [1974] 1 WLR 73 Concerning: the adultery fact Facts The wife committed adultery. The husband forgave her and they were reconciled. However, this was short lived and the wife left the husband again. The husband then petitioned for divorce. Legal principle The Court of Appeal accepted that there was adultery and that following the wife's conduct during the unsuccessful attempt at reconciliation the husband found it intolerable to live with her. A divorce was available, therefore, on the adultery fact.

Fact 2. Behavior

The 'behaviour' fact is found in section 1(2)(b), Matrimonial Causes Act 1973.

Matrimonial Causes Act 1973, section 1(2)(b) (...) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

Reading: Cases:

O'Neill v. O'Neill (1975) Husband was DIY fanatic who took eight months to replace toilet door: BEHAVIOUR FACT DEMONSTRATED

Pheasant v. Pheasant (1972) Wife never engaged in spontaneous displays of affection: BEHAVIOUR FACT NOT DEMONSTRATED

Lines v. Lines (1963) Husband required wife to tickle his feet for hours every evening: BEHAVIOUR FACT DEMONSTRATED

1. In Birch v. Birch [1992], the wife petitioned for divorce on the basis of her husband's unreasonable behavior. She claimed that his attitude to her was dogmatic, nationalistic and dictatorial. She said that she was sensitive and had taken a passive role during their 20-year marriage, putting aside her own interests until the children had grown up. The county court judge dismissed her petition, but the Court of Appeal allowed her appeal and granted a decree because the judge had used an objective test when the correct test was subjective.

2. In O'Neill v. O'Neill the petitioner stated that her husband had a withdrawn personality, had doubted the paternity of their children, and had spent two years 'improving' the flat, which included mixing cement on the living-room floor and leaving the lavatory door off for about eight months.

3. Some behavior, however, may be too trivial and a decree will be refused, as it was in Buffery v. Buffery above, where the wife alleged that her husband was insensitive, never took her out, and after their children had left home they had nothing to talk about and nothing in common. Her petition was dismissed, as her husband's behavior was insufficient to satisfy the behaviour ground.

PROBLEM AREA

Blameless behaviour A divorce may therefore be granted even though a respondent is not responsible for his or her own 'behavior'. The issue is raised particularly where the behaviour is caused by a medical condition. On the one hand, it might be thought harsh on a spouse to be divorced based on behaviour over which they had no control On the other, the courts are aware that caring for an ill spouse can be an enormous burden. In Katzv. /fafr (1972) a wife was able to get a divorce from a husband who suffered from manic depression, whose behaviour was concerning and greatly disturbed the wife. In Thurlow v. Thurlow [1976], the wife was an epileptic who suffered from a severe neurological disorder. She was bed-ridden and bad-tempered, threw objects at her husband and wandered the streets causing him distress. He worked full-time and found it difficult to care for her, and the stress affected his health. Judge granted a decree.

Fact 3. Desertion

Matrimonial Causes Act 1973, section 1(2)(c) (...) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.

Fact 4. Two-year separation

Matrimonial Causes Act 1973, section 1(2)(d) (...) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.. .and the respondent consents to a decree being granted.