3. Bars to divorce

1) Section 3(1), MCA states that it is not possible to petition for a divorce until you have been married for one year.

2) Section 5, MCA provides a bar but this can only be used in cases based on the five years' separation. The court has the power to refuse to grant the divorce if two things are shown. First, that the respondent will suffer grave financial or other hardship if the divorce is granted. Second, that it would be wrong in all the circumstances to grant the divorce. The defence is rarely raised successfully.

3) Section 12A, MCA enables a court to make an order which means that a divorce will only be granted once the couple have confirmed they have arranged for their marriage to be dissolved in the eyes of their religion. If one party refuses to allow the religious divorce, the court might refuse to allow the legal divorce.

4) Section 10(2), MCA provides a bar that can be raised by a respondent but only for cases relying on two or five years' separation after the decree nisi. The court can only grant a divorce if it decides that financial arrangements for the petitioner are reasonable and fair, or the best that can be made in the circumstances.

5) Section 41, MCA allows a court not to make a decree of divorce absolute if there are exceptional circumstances which mean that a court might want to make an order in respect of the couple's children but needs further consideration of the case.

4. Divorce Procedure

Divorce is a two-stage procedure. A decree nisi of divorce is obtained first, and this is followed by a decree absolute after the expiration of six weeks. Only on the grant of decree absolute is a marriage terminated.

1) Undefended divorce

It is an exercising of the papers. There is no needed for parties to attend court.

Procedure is as follows:

- petitioner makes a divorce petition to a divorce county court,

- the petition must contain the specified information (see the schedule)

2) Defended Divorce

Defended divorce proceedings begin in the same way as an undefended divorce, but the respondent in the Acknowledgement of Service indicates an intention to defend. Such an indication does not of itself cause the proceedings to become defended, but must be followed by the filing of an answer within 29 days of receipt of the notice of proceedings. There is then exchange of pleadings by counsel and the hearing takes place in open court with oral evi­dence being given and cross-examination of both parties.

5. Effects of Divorce

- free to remarry

- financial provision and property adjustment

- an effect on a will (termination)

- both retain parental responsibility for their children.

Several peculiarities of the English system:

The first is that in England the “pot” of assets that is to be divided includes everything that the spouses own, including everything that they each had before they got married.

The second difference is that the English courts place one party’s inherited assets into the marital pot.

Third, the English courts allow fault to govern the fairness issue. This allows each party to assert that the other party was the “wrongdoer” who should be financially punished for breaking up the marriage.

Fourth, England is one of the few places where lifetime spousal maintenance (alimony) payments are routinely ordered by the courts in favor of the spouse with fewer assets or less earning capacity.

Fifth, England uses the concept of the ‘clean break’ as an ideal way to resolve financial matters. It is intended to mean that one ex should not have to continuously chase the other ex for money. It’s a very nice theory, but impossible to put into practice.

Finally, to make matters even more unpredictable, prenuptial agreements are not legally binding in England, so that it is difficult or even impossible for a wealthy person to provide himself with predictable protection if he is considering marriage.