Welcome back this video is an overview of how divorce works in England and Wales but
first of all if you're new here please like this video subscribe and that bow icons you
don't miss out our new videos first of all it is always this video should not be taken
as a replacement for formal legal advice it's just an explainer video to go over the basic
concepts of divorce law the person that seeks a divorce is called the petitioner and the
other party is called the respondent in the proceedings ceilings can commence either by
way of a divorce petition a dissolution petition or a judicial separation petition in England
and Wales there really is only one ground for divorce and it set out in section 1 of
the matrimonial causes act of 1973 on this ground is that there's been an irretrievable
breakdown of the marriage and the court cannot rule that has been an irretrievable breakdown
of the marriage unless one of the following things can be shown section 1 subsection 2
of the matrimonial causes act this could include adultery unreasonable behaviour desertion
two years separation with consent of the other party all five years separation and no consent
is required once one of these facts has been established there is a presumption of an irretrievable
breakdown and if it goes undefended the court is going to accept it but in a defended case
the respondent challenges the assertion that there's been an irretrievable breakdown should
also make brief reference to the divorce dissolution and separation act of 2020 but this will not
be in force until autumn of this year 2020 what this act is going to reform the legal
requirements of divorce and whilst it will retain the sole ground of irretrievable breakdown
it will remove the need to evidence it with each of these scenarios and instead replacing
it with a statement the marriage has irretrievably broken down is also going to make it possible
for a joint application where the divorce is mutual follow-up video specifically on
this piece of legislation when it becomes active later in the year but for now looking
at these scenarios that show that the marriage has irretrievably broken down first we look
at adultery there are two requirements when setting out adultery first of all establishing
the fact that the respondent has committed adultery and secondly that the petitioner
finds it intolerable to continue living with the respondent the meaning of adultery was
set out in Clarkson Clarkson in 1930 and this is where there was sexual intercourse between
a man and a woman who were not married however one of them at the time was married to somebody
else now that there is a statutory definition of adultery it clarifies that it can only
be sexual intercourse between members of the opposite sex so therefore this cannot be relied
upon by same-sex couples but it will become an example of unreasonable behaviour as to
in tolerability this is a subjective test in other words the petitioner must demonstrate
to the court and persuade the court of the fact that is becoming tolerable to live with
the respondent in reality however this is not likely to be challenged and more likely
to be something of a formality unreasonable behaviour is the most common basis for a divorce
because there is no need to wait around to prove adultery and it can be started immediately
this is something both subjective and objective test in other words what the petitioner thinks
and what a reasonable person would think the petitioner must persuade the court that it's
become intolerable to live with the respondent given the unreasonable behaviour complained
of and this is generally looked at as a three stage process first of all looking at what
the respondent is said to have done secondly looking at the effect that that behaviour
has had on the petitioner in the case and thirdly looking at whether the petitioner
could reasonably be expected to continue living with the respondent or whether it has indeed
become intolerable looking at the first type of desertion which is where the respondent
has deserted the petitioner for a continuous period of two years petitioner would need
to show the following things first of all the fact that there has been a separation
and that there was an intention on the part of the respondent to desert the petitioner
that there was no agreement or consent to the separation and there was no just cause
for the respondent to leave in the first place and finally that the two-year period was continuous
and it immediately precedes the filing a court in reality however this type of desertion
is rarely relied upon because if parties have separated for a continuous period of two years
they are more likely to consent and agree to the separation hence we have a two years
separation with consent of the parties generally speaking to show the separation parties will
be living in a completely separate household although it is possible to show that there's
been a separation within the household but they would have to be some level of evidence
to show that even though they are living in the same house they are living separate lives
separate bedrooms and so on in other words there must be a factual basis to show that
there has been a separation for the continuous period even though they are not living in
separate households this might be the case where one simply cannot afford to move out
into another household until the house is sold and the proceeds split by way of example
and finally moving on to 5 years if the parties have separated for a continuous period of
five years then the petitioner does not need the consent of the respondent the mere fact
that there's been a separation for five years is sufficient although there are two broad
scenarios where respondent can object and defend a five year separation divorce firstly
an outright denial that there's been a separation for the continuous five years that is required
and secondly that there might be a grave hardship on the respondent in that they will greatly
suffer at the result of this divorce and looking at a defence of grave hardship and whether
or not it applies like many other cases the court is going to consider all the circumstances
of the case including the behaviour of the parties before making a decision as to whether
or not it applies in the instant case by way of summary until the new law kicks in there
is only one main ground for divorce and that is the relationship has irretrievably broken
down and that the petitioner cannot be expected to tolerate living with the respondent and
this is shown either by way of adultery unreasonable behaviour desertion for the period of two
years two years separation with consent which is more common or five years separation without
consent is necessary from the respondent provided there is no valid defence brought to court
in which case the court may refuse to grant a five year separation in those very rare
cases just briefly addressing the one this is fairly simple that is that a divorce petition
cannot be filed at court until at least one year of the marriage as a lapsed per section
3 of the MCA this rule cannot be waived in any circumstances if you find yourself in
this one you.
And you simply cannot wait there are two areas that you can seek formal advice on but there
are a little bit beyond the scope of this video but maybe for a later video the first
one will be a decree of judicial separation the second would be a decree of nullity broadly
speaking these allow the court to make financial orders and children orders within that first
year briefly looking at same-sex marriage and same-sex divorce this was dealt with in
the marriage of same-sex couples act of 2013 which came into effect in 2014 which set out
the provisions for marriage between same-sex couples in England and Wales and after divorce
of same-sex marriages the legal requirements are broadly the same with that exception of
adultery that I mentioned earlier in the same sex parties that were married outside of England
and Wales the procedures and the rules are exactly the same as though they were married
in England and Wales and similarly for a civil partnership and dissolution of the civil partnership
again the rules are broadly the same as I just outlined when it comes to jurisdiction
for the court to hear divorce proceedings one of the following things must apply under
section 5 of the domicile and matrimonial proceedings act 1973 one or more of the following
things must apply either that the spouses are habitually resident in England and Wales
are comeback to habitually resident in a moment secondly that they were both last habitually
resident in England and Wales and one of them continues to live there thirdly that the respondent
his habitually resident in England and Wales it might be that the applicant is habitually
resident in England and Wales and resided there for at least one year before the application
it might be that the applicant is domiciled and habitually resident in England and Wales
and resided there for at least six months immediately before the application both spouses
might be domiciled in England and Wales for either spouse is domiciled in England and
Wales to let's look at those terms and break those down so habitually resident this is
a complex term and it can take different forms depending on the situation and how you looking
at it for example it is possible to be habitually resident in one country but resident in another
country for example where parties have more than one property and they spend a lot of
time in each property it will need to be deciding which of them is the habitual residence in
other words where they are spending the majority of their time for their core every day activities
daily lives even if they are spending lots of time in another location it will need to
be decided which is the primary habitual residents before the court is able to determine jurisdiction
to hear the divorce proceedings with regard to domicile again this is not particularly
straightforward and there are three types of domicile the easiest way to think about
domicile a little bit like habitual residence is the country that the party considers to
be their primary and main home they can also be domicile of origin that's where the person
was born and if the parents were married where the father was born there can be domicile
of dependence that's where an unmarried child is dependent on father's domicile if the parents
are married the mother's domicile if the parents are not married and finally there's domicile
of choice which is a decision people can make from the age of 16 and all of these issues
are important when deciding where to issue divorce proceedings because as I said the
course will need to decide that it has jurisdiction to hear the case before you file petition
said that a brief overview of divorce law in England and Wales at least until the new
law kicks in in the autumn but please do drop your questions and comments below but please
do not take this video or anything else that you read online as for legal advice you do
need to go and see a lawyer and sit down properly and seek formal advice in the meantime thanks
for watching Sia