The Matrimonial Causes Act 1973 (MCA 1973) is the law within England and Wales that governs divorce. The MCA 1973 was introduced “to consolidate certain enactments relating to matrimonial proceedings, maintenance agreements, and declarations of legitimacy, validity of marriage and British nationality.”[1]
Prior to the enactment of the MCA 1973, the first general statute providing for judicial divorce in England and Wales was the Matrimonial Causes Act 1857 (MCA 1857). The MCA 1857 was the first Act of its kind to provide for divorce without the need to gain an individual Act of Parliament. This then created a procedure for divorce by going through the court system alone. However, even though the law now existed for a divorce, a husband and wife were scrutinised under different grounds. For example, a husband could solely rely on his wife’s adultery, whereas a wife could only rely on her husband’s adultery if there were aggravating circumstances alongside the adultery.
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The law since the inclusion of the MCA 1857 has dramatically changed and there have been many amendments of the law surrounding divorce. The changes throughout the years include allowing a wife, like a husband, to petition on adultery alone; this was adopted within the Matrimonial Causes Act 1923 (MCA 1923). The Matrimonial Causes Act 1937 (MCA 1937) included grounds of cruelty, desertion or incurable insanity. The Divorce Reform Act 1969 (DRA 1969) sought to create a compromise to incorporate a change within societal views after the Second World War. During this time there appeared to be an enhancement in the number of divorces. There were rising apprehensions for divorce to be achieved more easily.
After the introduction of the DRA 1969, its divorce provisions were then consolidated within the MCA 1973. Section 3 of the MCA 1973 now stipulates that a divorce application cannot be made until the couple have been married for an entire year. Before 6 April 2022, the sole ground for petitioning for divorce was laid out within s1(1) of the MCA 1973: that the marriage had broken down irretrievably. However, this could only be established by proving one of five facts under s1(2). The following discussion describes that former law.
One of the five facts was the respondent’s adultery. Adultery meant voluntary sexual intercourse between a married person and a person of the opposite sex other than their spouse: Dennis v Dennis[2]. Under s1(2)(a) of the MCA 1973, the petitioner had to prove that the respondent had committed adultery and that the petitioner found it intolerable to live with the respondent. A case that illustrates this point is Cleary v Cleary[3], where it was established that the intolerability need not result from the adultery. Under s2(1), a petitioner could not rely on adultery if the parties had lived together for more than six months in total after the petitioner discovered it. Periods of living together totalling six months or less were disregarded when considering intolerability under s2(2).
The second fact within the MCA 1973 was the respondent’s behaviour, which was laid out within s1(2)(b). A case illustrating this point is Birch v Birch[4], where it was held that the question was whether the petitioner could reasonably be expected to live with the respondent, taking account of the behaviour and the petitioner’s circumstances and personality. It was not simply whether the behaviour was unreasonable. The Law Commission acknowledged that ‘virtually any spouse can assemble a list of events which, taken out of context, can be presented as unreasonable behaviour sufficient to found a divorce petition.’[5] There was a wide range of behaviour that could fall within this category. One example is in O’Neill v O’Neill[6] where the husband removed the bathroom door and failed to replace it until eight months after the event; this was deemed to be unreasonable behaviour. In Livingstone-Stallard v Livingstone-Stallard[7], the courts granted a divorce on the basis of criticism and rudeness.
The third fact was the respondent’s desertion. This legislative provision was found within MCA 1973, s1(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.’ Departure could be justified and therefore not amount to desertion. For example, in Quoraishi v Quoraishi[8], the wife was justified in leaving when her husband took a ‘second wife’.
The fourth fact was two years’ separation with the respondent’s consent to the divorce, which was found within the MCA 1973, s1(2)(d). The parties had to have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition. Living apart could occur within the same property, as seen in Hollens v Hollens[9], where the parties were living within the same property but failed to speak, eat or sleep together. The court held that they were living apart.
The final fact was five years’ separation, which was laid out within the MCA 1973, s1(2)(e). This fact was considered one of the most controversial, due to the parties having to have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition, and divorce could be granted without the respondent’s consent. However, under s5, the respondent could oppose the divorce on the ground that it would cause grave financial or other hardship and that it would be wrong in all the circumstances to dissolve the marriage.
The Law Commission stated within Report 192[10] in 1990 that it was dissatisfied with the law surrounding divorce. It described that law as ‘confusing and misleading’[11], as well as being ‘discriminatory and unjust[12]’ and that ‘it provokes unnecessary hostility and bitterness’[13] alongside that ‘it does nothing to save the marriage’[14] or that ‘it can make things worse for the children’[15].
The criticisms of the law from the Law Commission persuaded the Government to reform the law through the Family Law Act 1996 (FLA 1996). However, although the Act was enacted, its Part II divorce reforms were never brought into force following disappointing results from pilots. The Lord Chancellor’s Department confirmed in 2001 that those reforms would not proceed and that the Government would seek their repeal.[16] Most of Part II was subsequently repealed in 2014. Other parts of the Act, including its domestic violence provisions, did come into force.
To conclude, the former law on divorce attracted an abundance of criticism and the idea of reform was not such a dire ideology. Under that law, couples could remain married when they no longer wanted to be, and the lengthy and complex divorce procedures were harrowing and costly for couples and affected not only the couple but the family and children surrounding them.
Current law
Since 6 April 2022, the Divorce, Dissolution and Separation Act 2020 has amended the Matrimonial Causes Act 1973 to introduce no-fault divorce in England and Wales. It is no longer necessary to prove one of the former five facts, such as adultery, behaviour, desertion, or periods of separation. Instead, one spouse, or both spouses jointly, may apply for a divorce order by stating that the marriage has broken down irretrievably. Under s1, the court must treat that statement as conclusive evidence of breakdown. The former rules continue to apply to proceedings started before 6 April 2022.
Under s3, an application for divorce cannot be made during the first year of marriage. Normally, applicants must wait 20 weeks from the issue of the application before applying for a conditional order, and at least six weeks and one day after the conditional order before applying for a final order. The court has power under s1(8) to shorten the statutory periods in a particular case. The final order ends the marriage; a conditional order does not. The final divorce order does not itself settle financial claims.
The Act also provides for nullity of marriage under ss11–12, distinguishing void and voidable marriages. Under s17, either or both spouses may apply for judicial separation, which does not end the marriage. The one-year divorce bar does not prevent an application for nullity or judicial separation.
Financial remedies under Part II include periodical payments and lump sums under s23, property adjustment orders under s24 and pension sharing on divorce or nullity under s24B. Under s25, the court must consider all the circumstances, giving first consideration to the welfare of any child of the family under 18. The statutory factors include the parties’ resources, needs and responsibilities, their standard of living, ages and the duration of the marriage, disabilities, contributions including caring for the home or family, conduct where it would be inequitable to disregard it, and benefits lost on divorce or annulment. Section 25A requires the court to consider ending the parties’ financial obligations to each other as soon as is just and reasonable: a clean break is not automatic.
Last updated: 12 November 2026
Bibliography
Cases
- Dennis v Dennis [1955] 2 ALL ER 51
- Cleary v Cleary [1974] 1 All ER 498
- Birch v Birch [1992] 1 FLR 564
- O’Neill v O’Neill [1975] 3 ALL ER 289
- Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766
- Quoraishi v Quoraishi [1985] FLR 780
- Hollens v Hollens (1971)115 SJ 327
Statutes and Statutory Instruments
- Divorce, Dissolution and Separation Act 2020
- Divorce Reform Act 1969
- Family Law Act 1996
- Matrimonial Causes Act 1857
- Matrimonial Causes Act 1923
- Matrimonial Causes Act 1937
- Matrimonial Causes Act 1973
Books
- Jonathan Herring, Family Law (sixth edition, Pearson publishing 2013)
- Jonathan Herring, Family Law (5th edition, Pearson publishing 2011)
Websites
- legislation.gov.uk accessed 13th February 2016
- Law Commission Report 170 (1988) ‘Facing the future. A discussion paper on the ground for divorce’ accessed 13th February 2016
- Law Commission Report 192 (1990) ‘Family law – the ground for divorce’ accessed 18th February 2016
- Lord Chancellor’s Department (2001) ‘The Lord Chancellor’s Departments: Departmental Report’ accessed 18th February 2016
[1]legislation.gov.uk accessed 13th February 2016
[2]Dennis v Dennis [1955] 2 ALL ER 51
[3]Cleary v Cleary [1974] 1 All ER 498
[4]Birch v Birch [1992] 1 FLR 564
[5] Law Commission Report 170 (1988) ‘Facing the future. A discussion paper on the ground for divorce’ accessed 13th February 2016
[6]O’Neill v O’Neill [1975] 3 ALL ER 289
[7]Livingstone-Stallard v Livingstone-Stallard [1974] 2 All ER 766
[8]Quoraishi v Quoraishi [1985] FLR 780
[9]Hollens v Hollens (1971)115 SJ 327
[10] Law Commission Report 192 (1990) ‘Family law – the ground for divorce’ accessed 18th February 2016
[11] Law Commission Report 192 (1990), 2.8-2.11
[12] Ibid, 2.12-2.14
[13] Ibid, 2.16
[14] Ibid, 2.17-2.18
[15] Ibid, 2.19-2.20
[16] Lord Chancellor’s Department (2001) ‘The Lord Chancellor’s Departments: Departmental Report’ accessed 18th February 2016
