AN INTRODUCTION TO FAMILY LAW

Chapter 2 - DIVORCE

Jurisdiction

Brussels II Bis

Jurisdiction in divorce proceedings is governed by Article 3 of Council Regulation (EC) No 2201/2003 of 27 November 2003 ('Brussels II Bis'), which reads:

General jurisdiction

1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

(a) in whose territory:

- the spouses are habitually resident, or

- the spouses were last habitually resident, insofar as one of them still resides there, or

- the respondent is habitually resident, or

- in the event of a joint application, either of the spouses is habitually resident, or

- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses.

2. For the purpose of this Regulation, "domicile" shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.

The Ground for Divorce

There is only one ground for divorce - that the marriage has irretrievably broken down [1]. However, the petitioner must show such breakdown by proving one of the following (the 'five facts'):-

(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; or

(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or

(c) That the respondent has deserted the petitioner for a continuous period of two years or more; or

(d) That the petitioner and the respondent have lived apart for a continuous period of at least two years and the respondent consents to the divorce; or

(e) That the petitioner and the respondent have lived apart for a continuous period of at least five years. [2]

If the court is satisfied on the evidence of any of the five facts, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall grant a decree of divorce. [3]

The five facts will now be dealt with in turn:

Adultery

The petitioner must prove both that the respondent has committed adultery and that he/she finds it intolerable to live with the respondent, although the court does not normally enquire into the latter, accepting the petitioner's statement in the petition that they find it intolerable to live with the respondent. 'Adultery' means voluntary sexual intercourse between a man and a woman who are not married to one another but at least one of them is a married person. [4]

Adultery is normally proved by an admission for the respondent, but may also be proved, for example, by evidence that the respondent has parented a child of which the petitioner is not the other parent, or by a finding in other proceedings, such as a decree in previous judicial separation proceedings, granted by reference to the respondent's adultery. [5]

One party to a marriage shall not be entitled to rely on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months [6]. However, where the parties have lived with each other for six months or less after it became known to one party that the other had committed adultery, the fact that the parties have lived with each other after that time shall be disregarded in determining whether the petitioner finds it intolerable to live with the respondent [7].

Unreasonable Behaviour

The test for unreasonable behaviour was established by Mr Justice Dunn in Livingstone-Stallard –v- Livingstone-Stallard [8]:

“Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and personalities of the parties?”

The wife's allegations in Livingstone-Stallard included that the husband criticised her behaviour, her way of life, her friends, her cooking and even her dancing, that he complained of her leaving her underclothes soaking overnight in the sink, even though he did the same himself, that he called her names, that he became angry when she offered sherry to a photographer who visited the house while he was out and that he forced her out of the house, throwing water over her when she attempted to get back in. She was granted her decree on the basis of the husband's unreasonable behaviour.

Unreasonable behaviour may be used as an alternative where a charge of adultery cannot be proved. In Wachtel v Wachtel [9] the wife had formed a relationship with another man and the husband issued a petition on the basis of the wife's adultery. The judge was not satisfied that the adultery had been proved but the considered that the closeness of the association was such that the husband could not reasonably be expected to continue to live with the wife. He therefore gave the husband leave to amend his petition to include an allegation of unreasonable behaviour, and granted a decree on this basis rather than on the basis of adultery.

Unreasonable behaviour stemming from the respondent's mental illness does not necessarily prevent it being sufficient to entitle the petitioner to a decree - see, for example, Thurlow v Thurlow [10].

Note that mere desertion does not amount to unreasonable behaviour: Stringfellow v Stringfellow [11].

Where the parties have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner, that fact shall be disregarded in determining whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or of those periods together was six months or less [12].

Desertion

Desertion requires proof of both the cessation of cohabitation for a continuous period of two years or more (without reasonable cause) and the intention of the respondent to permanently bring the cohabitation to an end. Apart from a resumption of cohabitation, desertion will be terminated by (inter alia) an agreement between the parties to live apart or the granting of a decree of judicial separation.

The court may treat a period of desertion as having continued at a time when the deserting party was incapable of continuing the necessary intention if the evidence before the court is such that, had that party not been so incapable, the court would have inferred that his desertion continued at that time [13].

In considering whether the period for which the respondent has deserted the petitioner has been continuous, no account shall be taken of any one period (not exceeding six months) or of any two or more periods (not exceeding six months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period of desertion [14].

Two Years' Separation and Consent

This requires that the parties have lived apart for a continuous period of at least two years prior to the presentation of the petition and that the respondent consents to a decree being granted.

"Living apart": A husband and wife are treated as living apart unless they are living with each other in the same household [15]. The parties may be treated as living in separate households albeit under the same roof, provided that they are living completely separate, including sleeping separately, cooking and washing separately and having separate finances [16]. Living apart requires more than mere physical separation, so the relevant state of affairs does not exist while both parties regard the marriage as subsisting [17].

The respondent indicates his consent to the grant of a decree by filing a signed notice to that effect, usually his acknowledgement of service[18]. The respondent may withdraw his consent at any time prior to the pronouncement of the decree nisi, in which case the petition will be stayed [19]. Consent may be conditional, for example given on the basis that the petitioner will not seek costs against the respondent [20].

In considering whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding six months) or of any two or more periods (not exceeding six months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart [21].

Five Years' Separation

This simply requires that the petitioner prove that the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition, with no requirement of consent from the respondent.

"Living apart" has the same meaning as under two years' separation and consent, above.

As with two years' separation and consent, in considering whether the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding six months) or of any two or more periods (not exceeding six months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period for which the parties to the marriage lived apart [22].

The One-Year Bar

No petition for divorce may be presented to the court before the expiration of the period of one year from the date of the marriage, although this does not prevent the presentation of a petition based on matters which occurred before the expiration of that period. [1]

Note that there is no bar to the presentation of a petition for judicial separation before the expiration of the period of one year from the date of the marriage.

[1] Matrimonial Causes Act 1973, s.3 .

Protection for Respondents in Separation Cases

Refusal of Decree in Five Year Separation Cases on Grounds of Grave Hardship

The respondent to a petition for divorce in which the petitioner alleges five years' separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage. [1]

Rescission of Decree in Two Year Separation Cases Where Respondent Misled as to Consent

Where in any case the court has granted a decree of divorce on the basis of a finding that the petitioner was entitled to rely in support of his petition on the fact of two years' separation coupled with the respondent's consent to a decree being granted and has made no such finding as to any other fact mentioned in section 1(2) above, the court may, on an application made by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the petitioner misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to give his consent. [2]

Prevention of Decree Until Court Considered Respondent's Financial Position

Where the respondent to a petition for divorce on the basis of two years' or five years' separation has applied to the court for consideration of his financial position after the divorce and the court has granted a decree on the basis of two years' or five years' separation (and has made no finding as to any other fact), the court shall not make the decree absolute unless it is satisfied either that the petitioner should not be required to make any financial provision for the respondent, or that the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.[3]

[1] Matrimonial Causes Act 1973, s. 5(1) .
[2] Matrimonial Causes Act 1973, s.10(1) .
[3] Matrimonial Causes Act 1973, s.10(2) & (3) .

The Petition

The divorce must be begun by petition. [1]

The contents of the petition are specified by Appendix 2 of the Family Proceedings Rules 1991 , and comprise the following:

1. The names of the parties to the marriage and the date and place of the marriage;

2. The last address at which the parties to the marriage have lived together as husband and wife;

3. A statement setting out on what grounds the court has jurisdiction under the Council Regulation;

4. The occupation and residence of the petitioner and the respondent;

5. Whether there are any living children of the family and, if so, the number of such children and the full names (including surname) of each and his date of birth or (if it be the case) that he is over 18, and in the case of each minor child over the age of 16, whether he is receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation;

6. Whether (to the knowledge of the petitioner in the case of a husband's petition), any other child now living has been born to the wife during the marriage and, if so, the full names (including surname) of the child and his date of birth or, if it be the case, that he is over 18;

7. If it be the case, that there is a dispute whether a living child is a child of the family;

8. Whether or not there are or have been any other proceedings in any court in England and Wales or elsewhere with reference to the marriage or to any child of the family or between the petitioner and the respondent with reference to any property of either or both of them and, if so, the nature of the proceedings, the date and effect of any decree or order, and, in the case of proceedings with reference to the marriage, whether there has been any resumption of cohabitation since the making of the decree or order;

9. Whether there are any proceedings continuing in any country outside England and Wales which relate to the marriage or are capable of affecting its validity or subsistence and, if so, particulars of the proceedings, including the court in or tribunal or authority before which they were begun, the date when they were begun, the names of the parties, the date or expected date of any trial in the proceedings, and such other facts as may be relevant to the question whether the proceedings on the petition should be stayed under Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973;

10. Where the fact on which the petition is based is five years' separation, whether any, and if so what, agreement or arrangement has been made or is proposed to be made between the parties for the support of the respondent or, as the case may be, the petitioner or any child of the family;

11. A statement that the marriage has broken down irretrievably;

12.but not the evidence by which they are to be proved;

13. A prayer setting out particulars of the relief claimed, including any application for an order under any provision of Part I or Part II of the Children Act 1989 with respect to a child of the family, any claim for costs and any application for ancillary relief which it is intended to claim;

14. The names and addresses of the persons who are to be served with the petition, indicating if any of them is a person under disability;

15. The petitioner's address for service, which, where the petitioner sues by a solicitor, shall be the solicitor's name or firm and address. Where the petitioner, although suing in person, is receiving legal advice from a solicitor, the solicitor's name or firm and address may be given as the address for service if he agrees. In any other case, the petitioner's address for service shall be the address of any place in England or Wales to which documents for the petitioner may be delivered or sent.

[1] Family Proceedings Rules 1991, r.2.2(1) .

The Statement of Arrangements

Where a petition for divorce discloses that there is a minor child of the family who is under 16 or who is over that age and is receiving instruction at an educational establishment or undergoing training for a trade or profession, the petition shall be accompanied by a statement, signed by the petitioner personally and if possible agreed with the respondent, containing the information required by Form M4 , to which shall be attached a copy of any medical report mentioned therein. [1]

“Child of the family”, in relation to the parties to a marriage, means—

(a) a child of both of those parties; and

(b) any other child, not being a child who is placed with those parties as foster parents] by a local authority or voluntary organisation, who has been treated by both of those parties as a child of their family.[2]

Note that the fact that the husband only treated a child as a child of the family because he mistakenly believed the child to be his does not prevent the child being classed as a child of the family.[3]

Whether or not he agreed with the petitioner's statement of arrangements, the respondent may file his own, preferably within the time limited for giving notice of intention to defend and in any event before the district judge considers the arrangements or proposed arrangements for the upbringing and welfare of the children of the family.[4]

Contents of the Statement

The statement requires basic details of the names, dates of birth and parents of all children (including children who are not children of the family) and, in respect of children who are children of the family, details of their accommodation, education, who looks after them, any maintenance paid for them, their contact with the non-resident parent, their health and any other court proceedings relating to them (including whether they are on the child protection register). If they suffer from any serious illness or disability then any recent medical report should be attached to the statement and if it is not then the district judge may direct that such a report be filed.[5] If there have been previous court proceedings relating to the child(ren) then a certified copy of any order made in those proceedings should be filed with the court. The last sections of the form are for the petitioner to sign (and state whether, if the respondent does not agree with the arrangements for the child(ren), they would be prepared to discuss the matter with a conciliator and the respondent), and for the respondent to sign, if they agree with the arrangements and proposals contained in the form.

A common problem arises where the children are not residing with the petitioner and the petitioner does not therefore have all of the information required to complete the form. In this case, the court may request the respondent to complete their own form, as above. If the respondent does not compete a form by the time the court considers the arrangements for the children, then the district judge may direct that a welfare (Cafcass) report on the children be prepared.[5]

[1] Family Proceedings Rules 1991, r.2.2(2) .
[2] Matrimonial Causes Act 1973, s.53(1) .
[3] W (RJ) v W (SJ) [1972] Fam 152, [1971] 2 All E.R. 303, [1972] 2 W.L.R. 371.
[4] Family Proceedings Rules 1991, r.2.38 .
[5] Family Proceedings Rules 1991, r.2.39(3)(b) .

Issuing and Service

Divorce proceedings may be issued in any divorce county court. [1]

The following must be filed with the court:

1. The original, signed, divorce petition.

2. One extra copy of the petition for every other party to the proceedings.

3. The original, signed, Statement of Arrangements for Children form, if one has been prepared.

4. A copy of the Statement of Arrangements for Children form.

5. The original marriage certificate, or a certified copy.

6. Copies of any court orders referred to in the divorce petition.

7. The fee.

The petition must be served personally or by post on every respondent or co-respondent. [2] The normal procedure, in the first instance, is to request the court to send the petition to the respondent by post.

Problems with service

Service is normally proved by the respondent filing their acknowledgement of service, confirming receipt of the petition. If the respondent fails to file the acknowledgement then there are a number of options available to the petitioner, including:

Deemed service - Where a copy of a petition has been sent to a party and no acknowledgement of service has been returned to the court office, the district judge, if satisfied by affidavit or otherwise that the party has nevertheless received the document, may direct that the document shall be deemed to have been duly served on him. [3] Thus if, for example, the petitioner has seen the respondent with the divorce papers in his or her possession, then the petitioner may make an application for deemed service. the application is usually made by affidavit, setting out the petitioner's evidence, plus the court fee of £40. If the district judge is satisfied with the petitioner's evidence then an order for deemed service will be made, and the petitioner can proceed to apply for directions, as if the cause were undefended. Note that in an adultery case the petitioner will obviously still have to prove the adultery and in a two year separation case the court will not entertain an application for deemed service unless the petitioner produces to the court a written statement containing the respondent's consent to the grant of a decree. [4]

Bailiff/Personal service - The petitioner may request the court bailiff to effect service of the papers upon the respondent, or may request a set of papers from the court for personal service. Note that in the latter case, the petitioner must not effect personal service himself. [5] A request for bailiff service is made on a Request for Service by Court Bailiff form , together with the £30 fee. A recent photograph of the respondent should, if possible, be attached to the form, to enable the bailiff to identify the respondent. If the bailiff is able to effect service, he will file a certificate of service with the court, and the petitioner may then apply for directions. If the petitioner wishes to attempt personal service then further copies of the petition and any statement of arrangements for children must be provided to the court. The court will seal these, and return them to the petitioner, together with a fresh notice of proceedings/acknowledgement of service. The petitioner may then forward these (together, if possible, with a recent photograph of the respondent) to a process server. If the process server is able to effect service then he will prepare an affidavit of service, which the petitioner should file with the court, as proof of service. The petitioner may then apply for directions.

Substituted service - If the petitioner is unable to effect service upon the respondent, they may make an application for leave to substitute some other mode of service for serving the petition personally or by post, or to substitute notice of the proceedings by advertisement, provided there is a reasonable possibility that the advertisement will come to the knowledge of the respondent. [6] "Some other mode" might be posting the papers to the respondent's bank, a relative or employer. An application for substituted service is made ex parte to the district judge, setting out the grounds for the application in an affidavit. If leave is granted and substituted service is effected, an affidavit to this effect should be filed when the petitioner applies for directions.

Dispensing with service - If all else fails, then an application may be made to dispense with service of the petition upon the respondent. [7] The district judge will only dispense with service if he is satisfied that it is impracticable to serve the respondent by any other means, or it is otherwise expedient to dispense with service. The application is usually made on a standard form of affidavit , which essentially sets out what enquiries the petitioner should make as to the respondent's whereabouts. Note that certain government departments may be requested to provide a party's address - see Practice Direction of 13 February 1989 .

[1] Family Proceedings Rules 1991, r.2.6(1) .
[2] Family Proceedings Rules 1991, r.2.9(1) .
[3] Family proceedings Rules 1991, r.2.9(6) .
[4] Family Proceedings Rules 1991, r.2.9(6A) .
[5] Family Proceedings Rules 1991, r.2.9(3) .
[6] Family Proceedings Rules 1991, r.2.9(9) .
[7] Family Proceedings Rules 1991, r.2.9(11) .

The Acknowledgement of Service

The respondent is served with the divorce petition to which is annexed a notice of proceedings in Form M5 and and acknowledgement of service in Form M6. The respondent must complete the acknowledgement of service and return it to the court within seven days of receipt. [1] On the acknowledgement the respondent will state, inter alia, when and where he received the divorce petition, whether he intends to defend the case (and, in adultery cases, whether he admits the adultery), whether he objects to any claim for costs and whether he agrees with the proposed arrangements for any children set out in the statement of arrangements .

Where an acknowledgement is returned, the court will send a photocopy to the petitioner. [2]

[1] Family Proceedings Rules 1991, r.10.8(2)(a) .
[2] Family Proceedings Rules 1991, r.2.9(8) .

Supplemental and Amended Petitions

A petition may be amended where the further particulars alleged occurred before the date of the petition. If the further particulars occurred after the date of the petition then a supplemental petition must be filed. A petition is amended by the petitioner filing two copies of the petition with the amendments clearly shown in red (minor amendments may simply be mentioned by the petitioner in their affidavit in support of their petition, without filing an amended petition). A supplemental petition, however, is a separate document, which forms part of the original petition.

Supplemental and amended petitions may be filed without leave at any time before an answer is filed but thereafter only with leave. [1]

An application for leave may, if every opposite party consents in writing to the supplemental petition being filed or the petition being amended, be made by lodging in the court office the supplemental petition or a copy of the petition as proposed to be amended. In any other case, the application must be made on notice. [2]

[1] Family Proceedings Rules 1991, r.2.11(1) .
[2] Family Proceedings Rules 1991, r.2.11(2) .

Undefended Causes

Applying for Directions - the 'Special Procedure'

If the proceedings are undefended then the petitioner may apply for directions for trial by filing an application for directions for trial in Form D84 .

Where the cause is an undefended cause for divorce and, in a case to which section 1(2)(d) of the Act of 1973 applies, the respondent has filed a notice under rule 2.10(1) that he consents to the grant of a decree, then, unless otherwise directed there shall be filed with the request for directions for trial an affidavit by the petitioner [usually referred to as an 'affidavit in support of petition] -

(a) containing the information required by Form M7(a) , (b) , (c) , (d) , or (e) (whichever is appropriate) as near as may be in the order there set out, together with any corroborative evidence on which the petitioner intends to rely, and

(b) verifying, with such amendments as the circumstances may require, the contents of any statement of arrangements filed by the petitioner under rule 2.2(2) ,

and the district judge shall give directions for trial by entering the cause in the special procedure list. [1]

As soon as practicable after a cause has been entered in the special procedure list, the district judge shall consider the evidence filed by the petitioner and—

(a) if he is satisfied that the petitioner has sufficiently proved the contents of the petition and is entitled to a decree the district judge shall so certify;

(b) if he is not so satisfied he may either give the petitioner an opportunity of filing further evidence or remove the cause from the special procedure list.[2]

On the making of a certificate a date shall be fixed for the pronouncement of a decree by a judge or district judge in open court and the proper officer shall send to each party notice of the date and place so fixed and a copy of the certificate. [3]

[1] Family Proceedings Rules 1991, r.2.24(3) .
[2] Family Proceedings Rules 1991, r.2.36(1) .
[3] Family Proceedings Rules 1991, r.2.36(2) .

Decree Nisi

If the district judge has certified that the petitioner is entitled to a decree then the decree nisi will be pronounced by a judge or district judge in open court, on the date fixed by the district judge.

No attendance is required at the pronouncement of the decree by any party unless the petition contains a prayer for costs and the district judge, not satisfied that the petitioner is entitled to costs, gives to any party who objects to paying such costs notice that, if he wishes to proceed with his objection, he must attend before the court on the date fixed. [1]

Where a reconciliation has been effected between the petitioner and the respondent after a decree nisi has been pronounced but before it has been made absolute, either party may apply for an order rescinding the decree by consent. [2]

[1] Family Proceedings Rules 1991, r.2.36(3) .
[2] Family Proceedings Rules 1991, r.2.48(1) .

Decree Absolute

Time for application

An application by the party who obtained the decree nisi may not be made until six weeks have elapsed since the granting of the decree. [1]

An application by the party against whom the decree was pronounced can be made three months after the other spouse could have applied. [2]

Procedure on application by party in favour of whom decree nisi was pronounced

An application by a spouse to make absolute a decree nisi pronounced in his favour may be made by lodging with the court a notice in Form M8 .

On the lodging of such a notice, the district judge shall cause the records of the court to be searched, and if he is satisfied—

(a) that no application for rescission of the decree or for re-hearing of the cause and no appeal against the decree or the dismissal of an application for re-hearing of the cause is pending;

(b) that no order has been made by the court extending the time for making an application for re-hearing of the cause or by the Court of Appeal extending the time for appealing against the decree or the dismissal of an application for re-hearing of the cause or, if any such order has been made, that the time so extended has expired;

(c) that no application for such an order as is mentioned in sub-paragraph (b) is pending;

(d) that no intervention under rule 2.46 or 2.47 (intervention by Queen's Proctor etc.) is pending;

(e) that the court has complied with section 41(1) of the Act of 1973 (arrangements for children) and has not given any direction under section 41(2);

(f) where a certificate has been granted under section 12 of the Administration of Justice Act 1969 in respect of the decree—

(i) that no application for leave to appeal directly to the House of Lords is pending;

(ii) that no extension of the time to apply for leave to appeal directly to the House of Lords has been granted or, if any such extension has been granted, that the time so extended has expired; and

(iii) that the time for any appeal to the Court of Appeal has expired;

(g) that the provisions of section 10(2) to (4) of the Act of 1973 (protection for respondent in separation cases) do not apply or have been complied with; and

(h) that any order under s.10A(2) of the Act of 1973 (religious marriage) has been complied with,

the district judge shall make the decree absolute.[3]

Where the notice is lodged more than 12 months after the decree nisi there shall be lodged with the notice an explanation in writing:

(a) giving reasons for the delay;

(b) stating whether the parties have lived with each other since the decree nisi and, if so, between what dates; and

(c) stating whether the applicant being the wife has, or being the husband has reason to believe that his wife has, given birth to any child since the decree nisi and, if so, stating the relevant facts and whether or not it is alleged that the child is or may be a child of the family;

and the district judge may require the applicant to file an affidavit verifying the said explanation and may make such order on the application as he thinks fit. [4]

Procedure on application by party against whom decree nisi pronounced

An application by a spouse for a decree nisi pronounced against him to be made absolute may be made to a judge or the district judge, and the summons by which the application is made (or, where the cause is pending in a divorce county court, notice of the application) shall be served on the other spouse not less than four clear days before the day on which the application is heard. [5]

[1] Matrimonial Causes act 1973, s1(5) , as amended by the Matrimonial Causes (Decree Absolute) Order 1972, as amended.
[2] Matrimonial Causes Act 1973, s. 9(2) .
[3] Family Proceedings Rules 1991, r.2.49(2) .
[4] Family Proceedings Rules 1991, r.2.49 .
[5] Family Proceedings Rules 1991, r.2.50(2) .

Defended Causes

Notice of Intention to Defend

If the respondent or co-respondent wishes to defend the divorce proceedings then they may return the acknowledgement of service to the court giving notice of their intention to defend.

The Answer

A respondent or co-respondent who wishes to defend the petition or to dispute any of the facts alleged in it or, being the respondent, wishes to make in the proceedings any charge against the petitioner in respect of which the respondent prays for relief or, being the respondent to a petition to which section 5(1) of the Act of 1973 applies, wishes to oppose the grant of a decree on the ground mentioned in that subsection, shall, within 21 days after the expiration of the time limited for giving notice of intention to defend, file an answer to the petition. [1]

Directions for Trial

Not less than eight days before requesting directions for trial the party intending to make the request must give notice of the place of trial desired to every other party who has given notice of intention to defend and, if the party intending to make the request is the respondent, to the petitioner.[2] The notice must state the number of witnesses to be called and the places where the requesting party and his witnesses reside. If any party to whom notice is given under paragraph does not consent to the place of trial specified in the notice, he may, within eight days after receiving it, apply to the district judge to direct trial at some other place; and if he does consent to the place so specified, he shall within that period send to the party by whom the notice was given a statement signed by his solicitor (or by him, if he is acting in person) indicating that the notice has been received and specifying the number of witnesses to be called on his behalf and the places where he and his witnesses reside.[3]

On the written request of the petitioner or of any party who is defending a cause begun by petition the district judge shall give directions for the trial of the cause if he is satisfied—

(a) that a copy of the petition (including any supplemental or amended petition) and any subsequent pleading has been duly served on every party required to be served and, where that party is a person under disability, that any affidavit required by rule 9.3(2) has been filed;

(b) if no notice of intention to defend has been given by any party entitled to give it, that the time limited for giving such notice has expired;

(c) if notice of intention to defend has been given by any party, that the time allowed him for filing an answer has expired; and

(d) if an answer has been filed, that the time allowed for filing any subsequent pleading has expired. [4]

The directions for trial will specify the place of the trial and the date upon which it will take place, which must be after the expiration of 10 days from the date on which directions were given, unless the parties consent otherwise, or by leave of a judge.[5]

The Trial

The divorce will be tried by a judge without jury.[6] If the petition or cross petition is proved, the judge will pronounce the decree nisi.

Decree Absolute

The procedure on decree absolute is the same as for undefended causes.

[1] Family Proceedings Rules 1991, r.2.12(1) .
[2] Family Proceedings Rules 1991, r.2.25(3) .
[3] Family Proceedings Rules 1991, 2.2.25(4) .
[4] Family Proceedings Rules 1991, r.2.24(1) .
[5] Family Proceedings Rules 1991, r.2.35 .
[6] Family Proceedings Rules 1991, r.2.32(1) .

Judicial Separation

A decree of judicial separation has the effect that thereafter "it shall no longer be obligatory for the petitioner to cohabit with the respondent".[1] Obviously, this has no practical meaning in modern society. However, judicial separation does have a bearing upon inheritance, as if while a decree of judicial separation is in force and the separation is continuing either party dies intestate then their estate will devolve as if the other party to the marriage were then dead.[2]

Judicial separation is a procedure usually used when the marriage has broken down but the petitioner has a religious objection to divorce. The primary purpose of obtaining a decree of judicial separation is to utilise the court's powers to grant ancillary relief. Note, however, that the court does not have power to make pension sharing orders in proceedings for judicial separation.[3]

A petition for judicial separation may be presented on the ground that any of the five facts as in divorce exists[4], the petitioner merely praying in the petition that they be judicially separated from the respondent, rather than that the marriage be dissolved. Thereafter, the procedure is similar to divorce, save that there is only one decree - if the court is satisfied that the petitioner is entitled to the decree (and satisfied about the arrangements for any children), then it will pronounce the decree of judicial separation instead of the divorce decree nisi, without any investigation as to whether or not the marriage has irretrievably broken down.[5]

[1] Matrimonial Causes Act 1973, s.18(1) .
[2] Matrimonial Causes Act 1973, s.18(2) .
[3] See Matrimonial Causes Act 1973, s.24B(1) .
[4] Matrimonial Causes Act 1973, s.17(1) .
[5] Matrimonial Causes Act 1973, s.17(2) .

AN INTRODUCTION TO FAMILY LAW Chapter 2 - DIVORCE Jurisdiction

AN INTRODUCTION TO FAMILY LAW

Chapter 2 - DIVORCE

Jurisdiction