Divorce in England and Wales

Historically, divorce was not administered as such by the barristers who practised in the common law courts but by the "advocates" and "proctors" who practised civil law from Doctors' Commons, adding to the obscurity of the proceedings.[1] Divorce was de facto restricted to the very wealthy as it demanded either a complex annulment process or a private bill leading to an Act of Parliament, with great costs for either. The latter entailed sometimes lengthy debates about a couple's intimate marital relationship in public in the House of Commons.[2]

The Matrimonial Causes Act 1857 moved litigation from the jurisdiction of the ecclesiastical courts to the civil courts, establishing a model of marriage based on contract rather than sacrament and widening the availability of divorce beyond those who could afford to bring proceedings for annulment or to promote a private Bill. The Matrimonial Causes Act 1923 provided for adultery as sole ground for either husband and wife, not just the husband. Prior to this women had to prove additional fault.[3]

The Matrimonial Causes Act 1937 made divorce easier to access, particularly for women, who until then could not get a divorce merely on grounds of adultery, as men could: women needed to show more causes than adultery, such as incest, sodomy, or cruelty. The need for the reforms was illustrated in the best-selling satirical novel Holy Deadlock (1934).

The Divorce Reform Act 1969 marked a significant change in that people could end marriages that had "irretrievably broken down" without having to prove fault.[4] They could end marriages after separation of two years, if both parties desired divorce, or five years if only one party desired divorce.[5]

The Matrimonial Causes Act 1973 provided that a marriage had to have lasted for three years before a divorce could be applied for; the Matrimonial and Family Proceedings Act 1984[6] reduced this period to one year.[7]

The Divorce, Dissolution and Separation Bill 2019-21 was introduced to parliament in January 2020 by the Conservative Government.[8] The bill was a response to the Supreme Court case of Owens (Appellant) v Owens (Respondent)[9], which stated in its concultion that Parliament may which to consider replacing the current divorce law.[10] The bill would remove the requirement to provide evidence of fault, or separation; and replace it with a statement from either applicant that the marriage had irretrievably broken-down. [11]

Relevant laws are:

• Marriage Act 1949
• Divorce Reform Act 1969
• Matrimonial Causes Act 1973, which sets out the basis for divorce (part i) and how the courts deal with financial issues, known as ancillary relief (part ii)
  • Cruelty has been made irrelevant. See Gollins v Gollins [1964] A.C. 644
• Children Act 1989
• Family Proceedings Courts (Matrimonial Proceedings etc.) Rules 1991
• Marriage Act 1994
• Family Law Act 1996
• Gender Recognition Act 2004

There is only one 'ground' for divorce under English law. That is that the marriage has irretrievably broken down.

There are however five 'facts' that may constitute this ground. They are:

1. Adultery
   • often now considered the 'nice' divorce.
   • respondents admitting to adultery will not be penalised financially or otherwise.
   • cannot be used as a ground for divorce if the couple keeps living together for more than six months after discovering the adulterous act, unless the adulterous relationship is continuing or there are other acts of adultery after the first such act is discovered.[12]
2. Unreasonable behaviour (most common ground for divorce today).[13]
   • the petition must contain a series of allegations proving that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her.
   • the allegations may be of a serious nature (e.g. abuse or excessive drinking) but may also be mild such as having no common interests or pursuing a separate social life;[14] the courts will not insist on severe allegations as they adopt a realistic attitude: if one party feels so strongly that a behaviour is "unreasonable" as to issue a divorce petition, it is clear that the marriage has irretrievably broken down and it would be futile to try to prevent the divorce.[15]
3. Two years separation (if both parties consent)
   • both parties must consent
   • the parties must have lived separate lives for at least two years prior to the presentation of the petition
   • this can occur if the parties live in the same household, but the petitioner would need to make clear in the petition such matters as they ate separately, etc.
4. Two years desertion
5. Five years separation (if only one party consents)

Here is a rough outline of the undefended divorce procedure from start to finish:

1. Filing of Divorce Petition and, if necessary, Statement of Arrangements for the Children
2. Documents issued by Court and posted to the Respondent
3. Respondent returns Acknowledgement of Service to the Court (if he/she does not you will need to consider Bailiff Service, Deemed Service or other options)
4. Petitioner completes affidavit in Support of Petition and Request for directions
5. A Judge will then consider all the divorce papers and if he/she is satisfied issue a Certificate of Entitlement to a Decree and Section 41 Certificate (confirming he/she is content with arrangements for any children)
6. Decree nisi is granted. This is a court order which confirms that the grounds for divorce have been accepted and that the court believes the marriage has irretrievably broken down.[16]
7. Six weeks later the application can be made by the Petitioner for the decree absolute.

From beginning to end, if there are no further issues and Court permitting, it takes around six months. If there are any outstanding financial issues between the parties, most solicitors would advise resolving these by way of a 'Clean Break' Court order prior to obtaining the Decree Absolute.

• Divorce in Scotland

• "Changes in divorce: the 20th century". Living Heritage: Relationships. Houses of Parliament. Retrieved 1 August 2019.
• Sorting out Finances on Divorce (PDF) (Report). Family Justice Council. April 2016. Retrieved 21 February 2020.