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Chapter

Edwina Higgins and Kathryn Newton

This chapter considers the law and process for seeking a divorce in England and Wales. It examines the current legal framework and the gap between the ‘law in books’ and the practical reality. It looks at the current legal provisions, the criticisms that have been made of them, and whether there are any strengths to the current law. The discussion is placed in the context of divorce statistics in order to determine the link between the divorce law and the divorce rate, and whether this matters. In so doing, the chapter considers how much of a role the state should play in regulating divorce and the place of ‘fault’ in a modern divorce law. It also considers matters of process and procedure, and whether reform of process rather than substantive law is the right focus.

Chapter

This chapter starts with a brief history of divorce. The chapter then considers the current law on divorce, its historical origins and strengths, and its weaknesses. It then turns to the new law on divorce which is due to come into effect in the autumn of 2021. The chapter asks: Why was reform needed? What role does divorce play in our society? What does divorce say about marriage as an institution? The chapter uses a real-life scenario to answer these questions.

Chapter

Edwina Higgins and Kathryn Newton

This chapter considers the law and process for seeking a divorce in England and Wales, which is due to change radically in April 2022. It examines the current legal framework (as of September 2021) and the gap between the ‘law in books’ and the practical reality, highlighted in the key Supreme Court case Owens v Owens [2018] UKSC 41. It contrasts the conduct-based provisions of the current law with the ‘no fault’ provisions due to be introduced in 2022. It discusses the criticisms that have been made of the conduct-based law, and why there was pressure for reform. The discussion is placed in the context of divorce statistics in order to determine the link between the divorce law and the divorce rate, and whether this matters. In so doing, the chapter considers how much of a role the state should play in regulating divorce and the place of ‘fault’ in a modern divorce law. It also considers matters of process and procedure.

Chapter

This chapter discusses the procedure for obtaining a divorce or dissolving a civil partnership, which is governed by the Family Procedure Rules 2010. It outlines the main steps a solicitor should take before issuing divorce proceedings and explores the complete procedure for obtaining an undefended divorce. It explains that the procedure for divorce is governed by the Family Procedure Rules (FPR) 2010, which came into force in 2011. The FPR refers to ‘matrimonial orders’ which includes a decree of divorce, a decree of nullity, and a decree of judicial separation. Service of the petition is also discussed, as well as the various forms used.

Chapter

This chapter discusses the procedure for obtaining a divorce or dissolving a civil partnership, which is governed by the Family Procedure Rules 2010. It outlines the main steps a solicitor should take before issuing divorce proceedings and explores the complete procedure for obtaining an undefended divorce. It explains that the procedure for divorce is governed by the Family Procedure Rules (FPR) 2010, which came into force in 2011. The FPR refers to ‘matrimonial orders’ which includes a decree of divorce, a decree of nullity, and a decree of judicial separation. Service of the petition is also discussed, as well as the various forms used.

Chapter

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter deals with divorce, dissolution, separation orders, and judicial separation, and contains a mixture of essay and problem questions. The first question is an essay question that focuses on the reform of the divorce law. The second question is problem question that requires the application of the law of divorce contained in the Matrimonial Causes Act 1973 (original and amended versions), judicial separation and the equivalent provisions of the Civil Partnership Act 2004. The third question is an essay question that focuses on the use of mediation in divorce proceedings.

Chapter

At the end of a marriage or civil partnership, it is necessary to consider the practical and financial arrangements for the parties’ future: how they will share the value of the house(s), the pensions, and the savings and investments; who pays the debts; who gets personal belongings and furniture; and who has what income to live on. The law will only give effect to agreements that are objectively fair. If the parties cannot agree on a fair settlement, then courts have the power to impose a settlement on them by making a ‘financial remedy’ order in whatever terms it thinks are objectively fair. This power does not apply to unmarried couples. This chapter looks at what the court can do, the legal principles and practicalities that govern property redistribution, and some contentious issues and problems that may arise in financial remedy practice.

Chapter

N V Lowe and G Douglas

This chapter first examines the development and detail of the current divorce law. It then discusses the Matrimonial Causes Act 1973; proposals for the reform of substantive and procedural law governing divorce; the future of divorce reform; dissolution of civil partnership; judicial separation in marriage; and separation in civil partnership.

Chapter

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the law on divorce and separation. It covers divorces in England and Wales; the nature, function, and limits of divorce law; a brief history of divorce law to 1969; the present law of divorce and judicial separation; evaluation of the current law; options for reform of divorce law and the process of divorce; and the future of English divorce law.

Chapter

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on divorce, dissolution, and judicial separation as means of ending marriage or civil partnership. It first considers the grounds for divorce/dissolution and highlights five facts that can be used to prove a marriage has irretrievably broken down: adultery, behaviour, desertion, two years’ separation with consent, and five years’ separation. The chapter then compares no-fault divorce with divorce based on fault and provides an overview of the debates surrounding reform. Finally, it considers alternatives to the court process when dealing with divorce, dissolution, and judicial separation, with a particular focus on mediation.

Chapter

N V Lowe, G Douglas, E Hitchings, and R Taylor

This chapter first provides an overview of the historical development of the divorce law in England and Wales and an outline of the law as it was before the new reforms contained within the Divorce, Dissolution and Separation Act 2020 came into effect. It then discusses the path to reform, before ending the chapter with a consideration of the new divorce law and dissolution of civil partnership and judicial separation.

Chapter

This chapter is devoted to the Roman law of persons and family. As in modern legal studies, so in Roman law, it is the first branch of private law that students are taught, primarily in order to understand the concept of ‘legal personhood’. This chapter covers the paterfamilias (head of the household); marriage and divorce; adoption; and guardianship. The head of the household was the eldest living male ancestor of a specific family. He had in his power (potestas) all descendants traced through the male line (and also exercised forms of control over other members of the household). Roman law accorded the head of the household extensive legal entitlements, not only vis-à-vis the members of the household, but also its property. The motivation of this state of affairs lies in the recognition in Roman law of the family unit as legally significant entity.

Book

Edited by Ruth Lamont

Family Law offers a contextual and critical examination of the subject. Topics include: family life and the law; marriage, civil partnership, and cohabitation; seeking a divorce; and property division on divorce. It also examines property division on the breakdown of non-marital relationships; child support; domestic violence and abuse; and legal parenthood and parental responsibility. It moves on to look at private child law, the medical treatment of children, public law protection, adoption; and human rights, children's rights, and the family. Finally, it considers international family law and family law in practice.

Chapter

This chapter starts by outlining some of the changes in society that have driven the development of the law on disputes regarding the family home. When a family is living happily together, there are unlikely to be disputes about the ownership of the family home. However, where the relationship fails, or one of the parties dies, the division of assets—including the family home—can be a deeply divisive issue. Where a couple are married, their dispute can often be resolved through the divorce legislation. Even then, the chapter shows how equity may have a part to play.

Chapter

This chapter discusses the limited defences that are available in divorce proceedings. It explains that defended divorces or dissolutions of civil partnerships are not very common in practice and that there are limited ‘defences’ available, which may only lead to a delay in proceedings rather that stopping proceedings. It covers petitions after five years’ separation; Section 5 Matrimonial Causes Act 1973; protection in two-year separation cases; Section 10 Matrimonial Causes Act 1973; and section 10A Matrimonial Causes Act 1973, which was passed in the wake of a number of cases of women being refused a religious divorce by their spouse.

Chapter

This chapter deals with the European law governing jurisdiction in divorce and the international law concepts that are a feature of this area of law. It discusses the increasingly important question of jurisdiction in divorce proceedings, and explains the concepts of ‘domicile’which includes domicile of origin, domicile of dependence, and domicile of choice. It also explains the concept of ‘habitual residence’ as how both domicile and habitual residence apply to divorce proceedings. There is finally an outline of jurisdiction in practice and the rule that if the domicile of a client is uncertain then habitual residence is usually easier to establish. There is some mention of Brexit.

Chapter

This chapter deals with the European law governing jurisdiction in divorce and the international law concepts that are a feature of this area of law. It discusses the increasingly important question of jurisdiction in divorce proceedings, and explains the concepts of ‘domicile’which includes domicile of origin, domicile of dependence, and domicile of choice. It also explains the concept of ‘habitual residence’ as how both domicile and habitual residence apply to divorce proceedings. There is finally an outline of jurisdiction in practice and the rule that if the domicile of a client is uncertain then habitual residence is usually easier to establish. There is some mention of Brexit.

Chapter

This chapter discusses the limited defences that are available in divorce proceedings. It explains that defended divorces or dissolutions of civil partnerships are not very common in practice and that there are limited ‘defences’ available, which may only lead to a delay in proceedings rather that stopping proceedings. It covers petitions after five years’ separation; Section 5 Matrimonial Causes Act 1973; protection in two-year separation cases; Section 10 Matrimonial Causes Act 1973; and section 10A Matrimonial Causes Act 1973, which was passed in the wake of a number of cases of women being refused a religious divorce by their spouse.

Chapter

This chapter starts by outlining some of the changes in society that have driven the development of the law on disputes regarding the family home. When a family is living happily together, there are unlikely to be disputes about the ownership of the family home. However, where the relationship fails, or one of the parties dies, the division of assets-including the family home-can be a deeply divisive issue. Where a couple are married, their dispute can often be resolved through the divorce legislation. Even then, the chapter shows how equity may have a part to play. It also looks at the current state of the law. Most of the cases taken up in this chapter involve cohabiting (rather than married) couples and the family home.

Book

Edited by Ruth Lamont

Family Law offers a contextual and critical examination of the subject, discussing areas of debate and controversy. Topics include: family life and the law; marriage, civil partnership, and cohabitation; seeking a divorce; and property division on divorce. It also examines property division on the breakdown of non-marital relationships; child support; domestic violence and abuse; and legal parenthood and parental responsibility. It moves on to look at private child law, public law child protection, adoption; and human rights and children’s rights in the family. Finally, it considers international family law and family law in practice.