July 23, 2019 Latest News 0 comment

Divorce, Judicial Separation and Nullity

Proceedings for divorce cannot be commenced within the first year of marriage.
To issue divorce proceedings currently you would have to show Grounds for Divorce.

There is only one ground for divorce, namely that the marriage has irretrievably broken down. S1(1) Matrimonial Causes Act 1973 (MCA)
To conclude that the marriage has irretrievably broken down, the court must be satisfied that one or more of the 5 facts set out in S1(1) (MCA) is established.

1. That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent.
2. That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
3. That the Respondent has deserted the Petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition.
4. 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 (2 years separated and consent).
5. 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.

A Petition will be drafted to be lodged with the Court stating the fact you are relying on.

Adultery

If you wish to rely on adultery there are two matters which you must prove:

That the Respondent has committed adultery AND you find it intolerable to live with the Respondent

Behaviour –S1(2) (b) MCA 1973

The Definition for this fact is that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.

To rely on this fact various example of behaviour will have to be cited. It is very important that you obtain appropriate advice on the details of behaviour to be included in the petition as in the case of Owens V Owens last year the Court Of Appeal refused the Petitioner’s application for Decree Nisi even though it had accepted that the marriage had broken down.

Desertion S1(2) (c)

To rely on this fact you must show not only that the Respondent has deserted the you, but also that this has continued for at least 2 years immediately preceding the presentation of the petition.

Criteria for Desertion

i. The Respondent must have withdrawn from cohabitation with the intention of bringing cohabitation permanently to an end.
ii. The Petitioner does not consent to the Respondent’s withdrawal from cohabitation.
ii. The Respondent must not have any reasonable cause to withdraw from cohabitation.

2 Years Separated and Consent S1(2) (d) MCA 1973

There are two matters which you must prove, namely that:
The parties 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.

5 Years Separated S1(2) (e) MCA 1973

If you can establish that you and the Respondent have been living apart for a continuous period of at least 5 years immediately preceding the presentation of the petition, he/she is entitled to a decree whether or not the Respondent consents to divorce.

Judicial Separation

The basic difference between Judicial Separation and divorce is that divorce brings the marriage to an end whereas judicial separation does not. The parties will continue to be tied by the marriage obligations.

1. A petition for Judicial Separation may be presented to the court by either party to a marriage on the ground that any of the facts mentioned above exists
2. Provisions in respect of consultation –in relation to S1(2) facts, apply in cases of Judicial Separation as they do in the case of divorce.
3. The 1-year ban on divorce petitions does not apply to Judicial Separation petitions.
4. The court is not concerned to decide whether the marriage has broken down irretrievably just to enquire about the facts alleged by the petitioner.

Nullity

Annulment is a declaration by the court that a marriage was not legally valid or had become legally invalid.

1. Void Marriage–treated as though marriage had never taken place.
2. Voidable Marriage–is valid unless and until a decree of nullity has been granted.

Grounds on which a Marriage is Void

A marriage celebrated after 31/07/1971 shall be void on the following grounds only:

a) that it is not a valid marriage under the Provider of Marriage Act 1949 to 1986, i.e. where
i) the parties are within the prohibited degrees of relationship
ii) either party is under 16 years of age
iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage
b) that at the time of the marriage either party was already legally married or a civil partner
c) that the parties are not respectively male and female
d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage was domiciled in England and Wales

Grounds on which Marriage is Voidable S12 MCA 1973

A marriage celebrated after 31/07/1971 shall be voidable on the following grounds only:

a) that the marriage has not been consummated owing to the incapacity of either party to consummate it
b) that the marriage has not been consummated owing to the willful refusal of the Respondent to consummate it
c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise
d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorders within the meaning of the Mental Health 1983 of such a kind or to such an extent as to be unfit for marriage.
e) that at the time of the marriage the Respondent was suffering from venereal disease in a communicable form
f) that at the time of the marriage the Respondent was pregnant by some person other than the Petitioner
g) that an interim gender recognition certificate under the Gender Recognition Act 2004 has after the time of marriage been issued to either party to the marriage
h) that the Respondent is a person whose gender at the time of marriage had become the acquired gender under the Gender Recognition Act 2004

Call Mackenzie & Co., to make an appointment with one of our divorce experts.