This is an extract of our Divorce And Dissolution document, which we sell as part of our Family Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.
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Divorce and dissolution proceedings 1) Are there any bars to obtaining a divorce now?
1) Do the courts of England and Wales have jurisdiction?
Brussels II Bis (marriage) or The Civil Partnerships Regulation 2005 (dissolution)
1) The courts of E+W (as a Contracting State) will have jurisdiction if:
1) Both parties are habitually resident in England and Wales;
2) Both parties were last habitually resident in England and Wales and one of them still resides there;
3) The Respondent is habitually resident in England and Wales;
'Voluntarily resident with a degree of permanence'
4) The Petitioner is habitually resident in England and Wales and has resided there for at least one year immediately before the presentation of the petition;
5) The Petitioner is domiciled in England and Wales and has resided there for at least six months immediately before the petition has been filed; or
6) Both parties are domiciled in England and Wales
2) Meaning of the terms
Where the parties are 'ordinarily resident'
The place where the parties live on a day-to-day basis
"Domicile" There are three ways a party will be domiciled in E+W: a) Domicile of origin b) Domicile of dependence c) Domicile of choice
b) s.5(2) Domicile and Matrimonial Proceedings Act
2) Have the parties been married for a year or over?
2) Advisable to protect property ownership
The courts of E+W will have jurisdiction if:
Absolute bar on presenting an application for a matrimonial order / dissolution to the court within the first year of marriage - s.3 Matrimonial Causes Act (MCA) 1973 (marriage) and s.41 CPA 2004 (dissolution)
Can however for the matrimonial or dissolution order rely on facts that occurred in the first year
Where a party to the divorce does not have a beneficial interest in the family home, it is advisable to register Right to Occupy the Family Home under s.30 FLA on charges register of property so other party cannot sell while they are in occupation
1) No court of a Contracting State under the Brussels II Bis has jurisdiction; and
2) Either of the parties of the marriage is domiciled in England and Wales on the date when the divorce proceedings are begun
3) Terminology used
Person applying for divorce = applicant in FPR and petitioner in court forms
Person against whom the application is made = respondent
Document starting the divorce / dissolution
Divorce document = application for a matrimonial order (MO) in FPR and divorce petition in court forms
Dissolution document = application for civil partnership order in FPR and dissolution petition in court forms
Decree nisi (divorce) / conditional dissolution order (dissolution) = confirms ground for divorce has been met
Decree absolute (divorce) / final dissolution order (dissolution) = ends the marriage
4) What is the ground for divorce /
Marriage - The marriage has broken down irretrievably - s.1(1) MCA 1973
Dissolution - The civil partnership has broken down irretrievably - s.44(1) Civil Partnership Act (CPA) 2004
5) Which fact will be relied on to establish the ground?
Adultery and intolerability - s.1(2)(a) MCA 1973 (marriage). No such ground for Civil Partnership
a) Defined as: Voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom at least is a married person - Clarkson v Clarkson
b) An applicant cannot file for divorce based on their own adultery
c) It is accepted that adultery is difficult to directly prove and is therefore proved by inference or indirect evidence
What is the test for intolerability?
a) The test for intolerability is subjective
The court must only be satisfied that this particular applicant finds it intolerable to live with the respondent
b) A statement from the applicant that they find it intolerable to live with the applicant is therefore sufficient
c) The intolerability need not be connected to the adultery
Other party to the adultery
The other person to the adultery need not be named in the applicant unless the applicant believes this other person will object to the making of a matrimonial order (rare) - FPR PD7A 2.1
Unreasonable behaviour - s.1(2)(b) MCA 1973 (marriage) and s.44(5)(a) CPA 2004 (CP)
What does the applicant rely upon?
a) A specific incident; or
b) A series of incidents
How many incidents should be cited in the matrimonial order application?
a) Between three and six examples of behaviour that is alleged as unreasonable
b) Cite the first, last and worst example
What is the test for unreasonable behaviour?
1) Subjective - The effects of the respondent's behaviour on the applicant, taking into account the history of the marriage and the personalities of the parties
2) Objective - Whether a reasonable person would determine that the applicant could not be expected to continue living with the respondent.
A statement from the applicant will not satisfy this
Simple boredom or incompatibility will not satisfy this
Usually requires a disparity between the parties conduct (i.e. mutually abusive rows may mean it is not unreasonable to expect them to live together)
Desertion - s.1(2)(c) MCA 1973 (marriage) and s.44(5)(d) CPA 2004 (CP)
What is needed to establish desertion?
1) The applicant and respondent have separated (see below for definition of separation)
2) The respondent intended to separate permanently from the respondent
3) The applicant did not consent or agree to the separation
4) The applicant has not given the respondent cause to separate; and
E.g. the applicant's behaviour or adultery must not have been the reason for the respondent leaving
5) The separation has been for a continuous period of 2 years immediately preceding the date the application for a MO is filed
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