There are three types of matrimonial suit: annulment of marriage, judicial separation and divorce. To obtain an annulment, judicial separation or divorce in England and Wales (provided a European Union court (except Denmark) has jurisdiction) the one commencing the proceedings (the petitioner) and the one defending the proceedings (the respondent) must be habitually resident in England and Wales; or the petitioner and the respondent must have last been habitually resident in England and Wales and one of them must continue to reside there; or the respondent must be habitually resident in England and Wales; or the petitioner must have been habitually resident in England and Wales throughout the period of at least one year ending with the start of proceedings; or the petitioner must be domiciled in England and Wales and must have been habitually resident in England and Wales throughout the period of at least six months, ending with the start of the proceedings;
or both parties must be domiciled in England and Wales.
If no European Union court (except Denmark) has jurisdiction, one or both parties must be domiciled in England and Wales. All cases are commenced in a divorce county court or in the Principal Registry in London. If a suit is defended, it may be transferred to the high court.
ANNULMENT OF MARRIAGE
Various circumstances have the potential to render a marriage void or voidable in annulment proceedings including: if there has been wilful non-consummation of the marriage; one partner has a venereal disease at the time of the marriage and the other did not know about it;
the female partner was pregnant at the time of the marriage with another person’s child and the male partner did not know of the pregnancy; the parties were within prohibited degrees of consanguinity, affinity or adoption;
the parties were not male and female; either of the parties was already married or had entered a civil partnership;
either of the parties was under the age of 16; the formalities of the marriage were defective, eg the marriage did not take place in an authorised building and both parties knew of the defect.
SEPARATION
A couple may enter into a private agreement to separate by consent without getting divorced but for the agreement to be valid it must be followed by an immediate separation; a solicitor should be contacted.
Another form of separation is judicial separation.
Judicial separation does not dissolve a marriage and it is not necessary to prove that the marriage has irretrievably broken down. Either party can petition for a judicial Divorce 587
separation at any time; the grounds listed below as grounds for divorce are also grounds for judicial separation. To petition for judicial separation, the parties do not have to prove that they have been married for 12 months or more.
Afinancial settlement between spouses in a separation agreement or which accompanies a judicial separation is not binding on the court and will not necessarily be upheld by the court after the start of divorce proceedings.
DIVORCE
Neither party can petition for divorce until at least one year after the date of the marriage. The sole ground for divorce is the irretrievable breakdown of the marriage;
this must be proved on one or more of the following facts:
• the respondent has committed adultery and the petitionerfinds it intolerable to live with him/her;
however, the petitioner cannot rely on an act of adultery by the respondent if they have lived together as husband and wife for more than six months after the discovery of the adultery
• the respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue living with him/her
• the respondent has deserted the petitioner for two years immediately before the petition
• the petitioner and the respondent have lived separately for two years immediately before the petition and the respondent consents to the divorce
• the petitioner and the respondent have lived separately forfive years immediately before the petition A total period of less than six months during which the parties have resumed living together is disregarded in determining whether the prescribed period of separation or desertion has been continuous (but may not be included as part of the period of separation).
The Matrimonial Causes Act 1973 requires the solicitor for the petitioner to certify whether the possibility of a reconciliation has been discussed with the petitioner.
THE DECREE NISI
A decree nisi does not dissolve or annul the marriage, but must be obtained before a divorce or annulment can take place.
Where the suit is undefended, the evidence normally takes the form of a sworn written statement made by the petitioner which is considered by a district judge. If the judge is satisfied that the petitioner has proved the contents of the petition, a date will be set for the pronouncement of the decree nisi in open court: neither party need attend.
If the suit is defended, the petition will be heard in open court with parties giving oral evidence.
THE DECREE ABSOLUTE
The decree nisi is capable of being made absolute on the application of the petitioner six weeks after the decree nisi. If the petitioner does not apply, the respondent must wait for a further three months before application may be made. In exceptional circumstances the granting of the decree absolute may be delayed, for example if matters regarding children are not capable of resolution. A decree absolute is unlikely to be applied for until thefinancial matters have been resolved. The decree absolute dissolves or annuls the marriage. Where the couple have been married in accordance with Jewish or other religious usages, the court may require them to produce a
declaration that they have taken such steps as are required to dissolve the marriage in accordance with those usages before the decree absolute is issued.
MAINTENANCE
Either party may be liable to makefinancial payments as maintenance to a spouse or former spouse. If there are any children of the marriage, both parties have a legal responsibility to support them financially if they can afford to do so.
The courts are responsible for assessing maintenance for a spouse or former spouse, taking into account each party’s income and essential outgoings and other aspects of the case. The court can also deal with any maintenance for a child that has been treated by the spouses as a child of the family, such as a step-child.
The Child Maintenance and Other Payments Act 2008 changed the law with regards to child maintenance and set up a new commission, the Child Maintenance and Enforcement Commission (CMEC). Since October 2008, all parents have been able to choose either a private or statutory maintenance arrangement, thereby removing the compulsion for benefit claimants to use the Child Support Agency (CSA).
Since April 2010 the amount of child maintenance that the parent with care receives will not affect their benefits.
At the time of writing the CSA is still responsible for assessing the maintenance that non-resident parents shall pay for their natural or adopted children (whether or not a marriage has taken place). The CSA accepts applications only when all the people involved are habitually resident in the UK; the courts will continue to deal with cases where one of the individuals lives abroad (and does not work for a UK-based employer, the armed forces or the civil service).
A formula is used to work out how much child maintenance is payable under CSA jurisdiction. The basic rate formula requires the non-resident parent to pay 15 per cent net of income post-tax, national insurance and pension contributions for one child, 20 per cent for two and 25 per cent for more than two children. An earnings cap of £104,000 net a year applies. Deductions are applied for staying in contact and for further children in the non-resident parent’s household. In court jurisdiction cases, the CSA formula is adopted as a guideline only.
Some cases involving unusual circumstances are treated as special cases and the assessment is modified, and in some cases the court retains jurisdiction (for educational costs and high income cases, for example). Where there is financial need (eg because of disability or continual education) maintenance may be ordered by the court for children beyond the age of 18.
Either parent can report a change of circumstances and request a review at any time but appeals must be made within one month of the letter informing the parents of the CSA’s decision. There is an independent complaints examiner for the CSA.
If the non-resident parent does not pay CSA maintenance, the CSA may make an order for payments to be deducted directly from his/her salary; if all other methods fail, the CSA may take court action to enforce payment.
OTHER FINANCIAL RELIEF
Unlike in some other jurisdictions, there is no formula for division of assets on divorce. The courts must exercise their powers so as to achieve an outcome which is fair between the parties. In determining what is ‘fair’ the court 588 Legal Notes
must have regard to all the circumstances of the case,first consideration being given to the welfare of any minor child(ren) of the family. Beyond this, the court must have particular regard to a prescribed list of statutory factors:
• the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity, any increase in that capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire
• the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
• the standard of living enjoyed by the family before the breakdown of the marriage
• the age of each party to the marriage and the duration of the marriage
• any physical or mental disability of either of the parties to the marriage
• the contribution which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
• the conduct of each of the parties, if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it
• in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example a pension) which by reason of the dissolution of the marriage that party will lose the chance of acquiring.
The court also has a duty to consider making an order which will settle once and for all the partiesfinancial responsibilities towards each other. This is known as a financial ‘clean break’. Where a clean break is not possible, the court will combine provision of capital via a lump sum and/or property adjustment order and/or pension sharing/attachment order with an ongoing income order, known as maintenance (alimony).
Maintenance can be for a ‘term’ (ie for a limited period only) or it can be for the joint lives of the parties. In some cases, the courts use nominal maintenance to leave a party’s income claims open. It is possible for either party to apply to court to vary the amount or duration of the maintenance at a future date.
Prior to 2000, in considering the above factors, the courts considered the ‘reasonablefinancial requirements’
of the applicant, usually the wife, and treated this as determinative of the extent of the applicant’s award. In the landmark case ofWhite v Whitein 2000 the House of Lords re-evaluated the court’s approach to dividing assets on divorce. The law lords enunciated three key principles.
Firstly, the outcome has to be as fair as possible in all the circumstances with each party being entitled to a fair share of the available property. Secondly, in seeking to achieve a fair outcome there is no space for discriminating between the breadwinner and the homemaker in their respective roles. Thirdly, having considered all the circumstances of the case, and the statutory checklist, the judge should consider his view against the ‘yardstick of equality of division’.
More recently, the law lords have offered further guidance as to how to achieve a fair division of assets on divorce in the cases of Miller and McFarlane. In determining fairness, the court must now consider three strands or principles, being each party’s respective needs, the possibility of compensating the financially weaker
party for any ‘relationship’ generated disadvantage, which will be relevant where one party has given up a career, and ‘equal sharing’ of family assets, which is applicable as much to short marriages as to long marriages, and which will apply unless there is good reason to the contrary.
In the recent ‘huge money’ divorce case ofCharmanthe presumption of 50:50 in assessingfinancial awards on divorce emerged undamaged. Those with trust interests must be aware that the court will ignore the trust structure if it takes the view that the assets will be made available to the party on request.
In assessing whether there is a good reason to depart from the concept of equal sharing, the court will consider the nature of property and whether the property was acquired during the marriage otherwise than by inheritance or gift, known as matrimonial property, such as the matrimonial home, or other property to which the other spouse has not contributed. Whilst the yardstick of equality will apply to matrimonial assets to give full effect to the sharing entitlement, it will apply less readily to non-matrimonial assets, particularly in short marriages.
Additionally, conduct and special contributions will be relevant in assessing whether there should be a departure from equality, but only in exceptional cases, where such conduct or contribution is ‘gross and obvious’.
The Law Commission’s Marital Property Agreements project began in October 2009. The project is examining the status and enforceability of agreements made between spouses or civil partners (or those contemplating marriage or civil partnership) concerning their property orfinances.
COHABITING COUPLES
Rights of unmarried couples are not the same as for married couples. Agreements, whether express or inferred by conduct, often determine interest in money and property. Reliance upon inferences is problematic, therefore it is advisable to consider entering into a contract, or ‘cohabitation agreement’, which establishes how money and property should be divided in the event of a relationship breakdown.
This area of the law is still developing. In July 2007, the Law Commission published its report to parliament, recommending a scheme to provide remedies for eligible candidates. The Cohabitation Bill was subsequently introduced to parliament in December 2008 and the first day of the committee stage took place in April 2009.
The next day of the committee stage is yet to be scheduled. In the meantime, cohabitation agreements continue to be governed by the general principles of contract law.
CIVIL PARTNERSHIP
The Civil Partnership Act 2004 came into force on 5 December 2005; it has UK-wide status. Same-sex couples, by registering as civil partners, are able to gain legal recognition of their relationship and thereby obtain rights and obligations broadly equivalent to those of married couples. These rights and responsibilities include a duty to provide reasonable maintenance for your civil partner and any children of the family, equitable treatment in respect of life assurance and pension benefits, recognition under intestacy rules and domestic violence protection. In addition, inheritance tax is waived as with married couples and there is a right of succession for tenancy. A civil partnership which has irretrievably broken down may be dissolved by the court on the application of either civil partner. The irretrievable breakdown of the Divorce 589
partnership must be proved on one of four grounds. These grounds are the same as those for divorce (seeabove), save for a civil partner may not seek dissolution of the partnership on the basis of the other’s adultery.
DOMESTIC VIOLENCE
The Domestic Violence, Crime and Victims Act 2004 is intended to provide greater protection for victims of domestic violence. If one spouse has been subjected to violence at the hands of the other, it is possible to obtain an order from court to restrain further violence and if necessary to have the other spouse excluded from the home. Such orders also apply to civil partnerships and cohabiting couples (including same sex couples), and may also apply to a range of other relationships including parents and children and, to a lesser extent, non-cohabiting couples
SCOTLAND
Although some provisions are similar to those for England and Wales, there is separate legislation for Scotland covering nullity of marriage, judicial separation, divorce and ancillary matters. The principal legislation in relation to family law in Scotland is the Family Law (Scotland) Act 1985. The Family Law (Scotland) Act 2006 came in to force on 4 May 2006, and introduced reforms to various aspects of Scottish family law. The following is confined to major points on which the law in Scotland differs from that of England and Wales.
An action for judicial separation or divorce may be raised in the court of session; it may also be raised in the sheriffcourt if either party was resident in the sheriffdom for 40 days immediately before the date of the action or for 40 days ending not more than 40 days before the date of the action. The fee for starting a divorce petition in the sheriffcourt is £125.
The grounds for raising an action of divorce in Scotland have been subject to reform in terms of the 2006 act. The current grounds for divorce are:
• the defender has committed adultery. When adultery is cited as proof that the marriage has broken down irretrievably, it is not necessary in Scotland to prove that it is also intolerable for the pursuer to live with the defender
• the defender’s behaviour is such that the pursuer cannot reasonably be expected to cohabit with the defender
• there has been no cohabitation between the parties for one year prior to the raising of the action for divorce, and the defender consents to the granting of decree of divorce
• there has been no cohabitation between the parties for two years prior to the raising of the action for divorce The previously available ground of desertion was abolished by the 2006 act.
A simplified procedure for ‘do-it-yourself divorce’ was introduced in 1983 for certain divorces. If the action is based on one or two years’ separation and will not be opposed, and if there are no children under 16 and no financial claims, and there is no sign that the applicant’s spouse is unable to manage his or her affairs through mental illness or handicap, the applicant can write directly to the local sheriffcourt or to the court of session for the appropriate forms to enable him or her to proceed. The fee is £95, unless the applicant receives income support or legal advice and assistance, in which case there may be no fee.
Where a divorce action has been raised, it may be put
on hold for a variety of reasons. In all actions for divorce an extract decree, which brings the marriage to an end, will be made available 14 days after the divorce has been granted. Unlike in England, there is no decree nisi, only a final decree of divorce. Parties must ensure that all financial issues have been resolved prior to divorce, as it is not possible to seek further financial provision after divorce has been granted.
FINANCIAL PROVISION
In relation tofinancial provision on divorce, thefirst, and most important, principle is fair sharing of the matrimonial property. In terms of Scots law matrimonial property is defined as all property acquired by either spouse from the date of marriage up to the date of separation. Property acquired before the marriage is not deemed to be matrimonial unless it was acquired for use by the parties as a family home or as furniture for that home. Property acquired after the date of separation is not matrimonial property. Any property acquired by either of the parties by way of gift or inheritance during the marriage is excluded and does not form part of the matrimonial property.
When considering whether to make an award of financial provision a court shall also take account of any economic advantage derived by either party to the marriage as a result of contributions, financial or otherwise, by the other, and of any economic disadvantage suffered by either party for the benefit of the other party. The court must also ensure that the economic burden of caring for a child under the age of 16 is shared fairly between the parties.
A court can also consider making an order requiring one party to pay the other party a periodical allowance for a certain period of time following divorce. Such an order may be appropriate in cases where there is insufficient capital to effect a fair sharing of the matrimonial property.
Orders for periodical allowance are uncommon, as courts will favour a ‘clean break’ where possible.
CHILDREN
The court has the power to award a residence order in respect of any children of the marriage or to make an order regulating the child’s contact with the non-resident parent. The court will only make such orders if it is deemed better for the child to do so than to make no order at all, and the welfare of the children is of paramount importance. The fact that a spouse has caused the breakdown of the marriage does not in itself preclude him/her from being awarded residence.
NULLITY
An action for ‘declaration of nullity’ can be brought if someone with a legitimate interest is able to show that the marriage is void or voidable. The action can only be brought in the court of session. Although the grounds on which a marriage may be void or voidable are similar to those on which a marriage can be declared invalid in England, there are some differences. Where a spouse is capable of sexual intercourse but refuses to consummate the marriage, this is not a ground for nullity in Scots law, though it could be a ground for divorce. Where a spouse was suffering from venereal disease at the time of marriage and the other spouse did not know, this is not a ground for nullity in Scots law, neither is the fact that a wife was pregnant by another man at the time of marriage without the knowledge of her husband.
590 Legal Notes