Divorce in United Kingdom

Definition of Divorce

In accordance with the work A Dictionary of Law, this is a description of Divorce :

The legal termination of a marriage and the obligations created by marriage, other than by a decree of nullity or presumption of death. The present law on divorce dates from 1969. Before this, the law required proof of a *matrimonial offence (adultery, cruelty, or desertion of three years). The current law is contained in the Matrimonial Causes Act 1973, which provides that there is only one ground for divorce, namely that the marriage has irretrievably broken dow Proceedings are initiated by either spouse filing a petition for divorce, stating the facts that have led to the marital breakdown and accompanied by a *statement of arrangement for children, (Divorce proceedings may not be started within the first year of a marriage.) Irretrievable breakdown of a marriage may only be evidenced by one of the following five facts:

(1) that the respondent has committed *adultery and the petitioner finds it intolerable to live with the respondent;

(2) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent (See unreasonable behaviour);

(3) that the respondent has deserted the petitioner for at least two years (See desertion);

(4) that the parties have lived apart for at least two years and the respondent consents to a divorce; or

(5) that the parties have lived apart for at least five years. A respondent in a two-year separation case can apply for a postponement of the divorce until the court is satisfied that the petitioner has made fair and reasonable financial provision for the respondent. In a five-year separation case the court has the power to bar divorce if it believes that grave financial or other hardship would result from the dissolution and that it would be wrong to dissolve the marriage; however, this power is rarely exercised.

Divorce is a two-stage process. The first stage is the granting of a *decree nisi; six weeks later the petitioner may apply for a *decree absolute. The marriage is not terminated until the decree absolute has been granted. Uncontested divorce cases are heard under the *special procedure; the majority of cases are now dealt with in this way. Divorce courts have wide powers under the Matrimonial Causes Act 1973 to make orders in respect of children and to adjust financial and property rights.

See also child protection in divorce; financial provision order; maintenance agreement; property adjustment order.

History of Divorce in Britain

In England the law of divorce, originally based on the canon law of Rome, underwent some, though little, permanent change at the Reformation, but was profoundly modified by the exercise of the power of the state through legislation. Read the entry about the history of divorce in Great Britain here.

Meaning of Divorce

The following is an old definition of Divorce [1]: The dissolution or partial suspension, by law, of the marital relation. A dissolution is termed a divorce from the bond of matrimony – a vinculo matrimonii; a suspension, divorce from bed and board – a mensa et thoro. ” Divorced ” imports a dissolution, in the largest sense, of the marriage relation. In England, prior to 1857, the subject of divorce belonged to the ecclesiastical courts and to parliament. Statutes of 20 and 21 Vict. (1857) c. 85, created the Court of Divorce and Matrimonial Causes, with exclusive jurisdiction in all matrimonial matters. Divorce causes are now heard in the Probate and Divorce Division of the High Court of Justice, appeal lying to the Court of Appeal. In this country, formerly, it was common for the legislatures to grant divorces by special acts, but the practice fell into disuse, and is now forbidden in some States, by the constitution. The necessary jurisdiction is generally conferred upon courts possessing equity powers. The inhibition upon the legislative department against exercising judicial functions, implied from the division of government into three departments, has never been understood to exclude control by the legislature of a State over the marriage relation, notwith-standing that the exercise of sucb power may involve investigation of a, judicial nature. Hence, unless forbidden by the constitution, a legislature may grant a divorce. Congress is not empowered to legislate upon the subject; and the legislation of the States and Territories is far from uniform., In South Carolina divorce Is not allowed for any cause; in New York for adultery only. Elsewhere it is allowed for adultery, cruelty, indignity, willful desertion, or sentence to a State’s prison for two years or longer period, habitual drunkenness, pre-contract, fraud (incontinency, or pregnancy), coercion, imbecility pr impotency unknown to the other party, consanguinity, and affinity, qsee, in this resource, the term Common defenses are: connivance, collusion, condonation, recrimination, denial of allegation of desertion or infidelity. Some of the consequences of a divorce follow directly from the law, others may depend upon the special order of court: the law ends all rights, based upon the marriage, not actually vested; as, dower and curtesy, and the husband’s power over the wife’s choses in action. The court may allow alimony, and direct the custody of children. A decree made in one State, being a judgment of record, will be given its original force in every other State. For this purpose, courts of equity, Federal, and State, have jurisdiction. But, otherwise, if the record shows on its face that a party was a non-resident. A marriage forbidden by a decree of divorce in one State may be contracted in another State not also prohibiting it. The decree in nature is in rem. It determines the question of the marriage relation, or of the personal status, as against the world, and is therefore conclusive upon parties and strangers. See, further, the related topics mentioned.

Resources

Notes and References

1. Concept of Divorce provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)