Order Description

RESEARCH NOTE

A petition for divorce cannot be presented before the end of one year from the date of the marriage according to the Matrimonial Causes Act 1973 s3 (MCA).
Under this Act there is one ground for divorce on which a petition may be brought to court and that is that there has been an irretrievable breakdown of the marriage (s1(1)). In order to prove irretrievable breakdown, the Petitioner, who issues the petition must demonstrate that one of five facts applies.
There is no need for there to be a link between the fact and the breakdown – the fact can be evidence of the breakdown, it does not need to cause it.
The five facts are as follows:
1. Adultery and intolerability
Both these elements must be proved i.e. that the respondent has committed adultery and that the petitioner finds in intolerable to live with the respondent (MCA1973 s1(2)(a))
The adultery would need to be proved or inferred from an admission, birth of a child to wife, circumstantial evidence, finding of paternity etc.
The intolerability test is subjective and does not need to be linked to the adultery.
NB It is not possible to rely on adultery if the parties live together for more than 6 months after the petitioner discovered the adultery
2. The respondent’s behaviour
It must be proved that the respondent has behaved in such a way that the petitioner cannot be reasonably be expected to live with the respondent (MCA s1(2)(b)
This is an objective test. The case of Birch –v- Birch 1992 1FLR 564 concerned a husband who, the wife claimed, was dogmatic and chauvinistic with characteristics that she resented. The wife’s petition was allowed and the court accepted that her sensitive nature made it unreasonable for her to go on living with the husband.
3. Desertion
Here the fact to be proved is that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. MCA s1(2)(c)
4. Two years’ separation and consent
MCA s1(2)(d) requires the parties to the marriage have lived apart for a continuous period of at least two years preceding the presentation of the petition and that the respondent consents to a decree being granted.
Separation is needed although it is possible for people to be living apart whilst at the same address if they have separate lives. There must be a mental element – physical separation is not enough.
Consent must be in writing.
5. Five years’ separation
MCA 1973 s1(2)(e) requires the parties to the marriage to have lived apart for a continuous period of at least five years immediately preceding the petition.
After the five years, consent is not needed.
It is a defence in these circumstances that the dissolution of the marriage would result in grave financial or other hardship to the respondent and that in all the circumstances it would be wrong to dissolve the marriage (s5(1))

1. Understand and apply the relevant issues and rules governing the relationship with the client.
2. To understand and demonstrate effective communication skills