Decrees relating to marriage - Divorce

DIVORCE

The ground for divorce and the five facts

Under the Matrimonial Causes Act 1973 (M.C.A.) there is only one ground for divorce:

the petitioner must establish that the marriage has irretrievably broken down (s.1(1) of the M.C.A.). However, the court cannot grant a divorce unless the petitioner also proves one of the five facts, as referred to in S.1(2) of the M.C.A.

The five facts are:

(a) that the respondent has commited adultery and the petitioner finds it intolerable to live with him;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him;

(c) that the repondent has deserted the petitioner for a period of at least two years immediately preceding the presentation of the petition;

(d) that the parties have lived apart for a continuous period of at least two years immediately preceding the presentaton of the petition and the respondent consents to a degree being granted; and

(e) that the parties have lived apart for a period of at least five years immediately preceding the presentation of the petition.

It must be emphasised that even if the court reaches the conclusion that the marriage has irretrievably broken down, a decree cannot be granted unless the petitioner also proves one of the five facts (see , for example, Chilton v Chilton (CA 1990)).

However, proof of one of the five facts does not conclusively establish irretrievable breakdown: the court can still refuse a decree if it is satisfied that the marriage has not irretrievably broken down (s.1(4) of the M.C.A.) However, the petitioner need not prove that the fact established caused the irretrievable breakdown.

It should be noted that by s.3 of the M.C.A. no petition for divorce can be filed until the parties have been married for one year. This is an absolute bar to divorce; the court has no discretion to waive this requirement. Nevertheless, a divorce petition filed at any time after this period may include references to matters or events arising or occurring during this period.