Grounds for Divorce

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The supposed aim of the 1969 legislation (now consolidated in the Matrimonial Causes Act 1973) was to abolish the former "matrimonial offences" and substitute the breakdown of the marriage as the sole ground for divorce. This has been achieved on paper, but the reality is rather different.

Matrimonial Causes Act 1973 s.1(1)
... A petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

Matrimonial Causes Act 1973 s.1(2)
The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts ...

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties 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;
(e) that the parties have lived apart for a continuous period of at least five years years immediately preceding the presentation of the petition.

Matrimonial Causes Act 1973 s.1(4)
If the court is satisfied on the evidence of any such fact as is mentioned ... above, then unless it is satisfied ... that the marriage has not broken down irretrievably, it shall ... grant a decree of divorce.

It is important to read these three subsections together, because ss.1(2) and 1(5) together rob s.1(1) of much of its force. No matter how bad the relationships between the parties, s.1(2) makes it plain that the marriage has not irretrivably broken down unless one of the five facts can be established, and s.1(5) then suggests that proof of any one of the five facts is sufficient on its own unless there is convincing evidence to the contrary. The cases show how these requirements have been applied.

Buffery v Buffery [1988] 2 FLR 365, CA
H and W had been married for 20 years; their children had grown up and left home. H and W had gradually "drifted apart"; W complained that H did not take her out, that they had lost the ability to talk to each other, and that they had "nothing in common". Her petition for divorce was denied: although the marriage had apparently broken down, W had not shown any unreasonable behaviour on H's part and so had failed to satisfy the requirements of s.1(2)(b).

Richards v Richards [1972] 3 All ER 695, Rees J
After seven years' marriage, H became mentally ill and his behaviour changed. He became moody and often sat silently gazing into space; occasionally he struck his wife W. W petitioned for divorce on the grounds of H's behaviour, but her petition was denied: although she had shown the irretrievable breakdown of the marriage, she had not shown that H had behaved in such a way that she could not reasonably be expected to live with him.

Biggs v Biggs [1977] 1 All ER 20, Payne J
While H was in prison, W was granted a decree nisi on the basis of H's adultery. When H was released, her returned to live with W, and they remained together for 16 months before H left. W then applied to have the decree made absolute and the court refused: H and W had clearly been reconciled, so the marriage had not irretrievably broken down.

Le Marchant v Le Marchant [1977] 3 All ER 610, CA
H petitioned for divorce on the basis of five years' separation. In her reply, W said that she did not want a divorce, that she still loved her husband and that the marriage had not irretrievably broken down. The judge granted a decree nisi and was upheld on appeal: Ormrod LJ said five years' separation in itself established irretrievable breakdown to all intents and purposes to anybody taking a realistic view of these matters.

Of the "five facts", the first two are still the most commonly alleged in spite of the law's attempt to move away from the idea of a matrimonial offence. About 40% of petitions are beased on the respondent's behaviour and about 30% on adultery. 20% are based on two years' separation and the respondent's consent, while desertion and five years' separation between them account for less than 10% of all petitions.

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Grounds for Divorce

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