The divorce law has been consolidated in the Matrimonial Causes Act 1973 (MCA 1973) after the Divorce Reform Act 1969, this aim to eliminate the old grounds of divorce and replace all of them with only one ground which is stated in the Matrimonial Causes Act 1973 s1(1) ‘the marriage had irretrievably broken down’.1 The only way to prove this is to satisfy one of the five facts in the MCA 1973 s1(2). The current law governing divorce is in Part I of the MCA 1973, Part II of the Matrimonial Causes Act 1973 set out the property and financial matters on divorce and Family Procedures Rules 2010 explain the rules dealing with divorce proceedings.2 As mentioned earlier, the only ground for divorce is the irretrievable breakdown of marriage and this could only be established at least one of the five facts under the MCA 1973 s1(20). A divorce cannot be granted without successfully proven one of these five facts even the court is convinced that the marriage is irretrievably broke down.
3 Before examining these five facts, it is clearer for us to outline the procedure of obtaining a divorce, a petition for divorce can only be initiated at least after one year of marriage and there is no exception to this.4 However, on account of MCA 1973 s3(2), it is provided that can take into consideration of incidents that occurred during the first year of marriage. Adultery by respondent and intolerability is one of the five facts that the petitioner can rely on by proving that the respondent has committed an adultery and it is intolerable to continue living with the respondent.
5Adultery is also clearly defined as ‘involving a voluntary sexual intercourse between a married person and a third party that is not being married to him or her of the opposite sex’.6 The petitioner needs to prove respondent’s adultery according to the normal civil standard which is on the balance of probabilities.7 Hence, other sexual activities that are not involving sexual intercourse and homosexual intercourse will not constitute an adultery but may be considered as unreasonable behaviour.8 Nevertheless, no actual sexual intercourse need to be proven, an assumption of sexual intercourse is made if a man and a woman spend a night together.9 Subsequently, the petitioner can continue the petition when he or she finds that it is intolerable to live with the respondent because of his or her act of committing such unacceptable act which is adultery.10 Merely based on the adultery discussion above, the requirement of intolerability seems to make divorce harder because solely adultery would not be adequate to terminate a marriage. Besides, in order to prove intolerability, the petitioner must continue living with the respondent for more than six months after the discovery of adultery.
11 This could also show that the law actually using that period of time directly or indirectly to encourage both parties to reconcile and reconsider not to terminate their marriage. On top of that, the petitioner can establish an irretrievable breakdown by relying on the respondent’s unreasonable behaviour.12 This behaviour can be either take place in the form of an act or omission13 and it must not be merely a complaint.14 In the case of Mason v Mason15 shows that a wife performed sex intercourse with his husband only once a week cannot be regarded as unreasonable behaviour. Other examples of unreasonable behaviour would be constant criticisms and rudeness. It can be said that the test to establish unreasonable behaviour is both objective and subjective.
In the case of Ash v Ash16 gave several good examples of applying the test in a subjective way, for instance, a petitioner that is addicted to drinking can reasonably be expected to live with a respondent that is also addicted to drink. In contrast, the case of Livingstone-Stallard v Livingstone-Stallard17 applied the objective test where asking ‘would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking account the whole circumstances and the characters and personalities of the parties?’18 It also argued that unreasonable behaviour covers a wide range of conduct depends on the seriousness of the behaviour. However, serious criminal offence would definitely be classified as unreasonable behaviour where minor act of violence will still require more evidence to support its allegation.
19 Again, the law is trying to view and determine unreasonable behaviour in different aspects, for example, applying the objective and subjective tests. As a result, the petitioner cannot easily get divorced by simply claiming for a minor or random behaviour of respondent where the petitioner personally thinks it is unacceptable in a fit of anger. Furthermore, if the ‘respondent has deserted the petitioner for a continuous period of two years preceding the presentation of the petition’,20 the petitioner can rely on desertion under the MCA 1973 section 1(2)(c) to start a divorce application. The first requirement to prove desertion is there must be an intended factual separation.
21 One important issue that we have to be aware is factual separation does not only include physical separation, a spouse can, in fact, have factual separation even they are living under the same roof.22 At the same time, an intention of factual separation of respondent to leave the household permanently has to be proven.23 The second requirement of desertion is the petitioner has no consent to the desertion of respondent.
This simply means that the petitioner is not willing or do not agree with the leaving of the respondent. Lastly, the petitioner has to show that there is no valid or just reason for the respondent’s desertion. Similarly, as mentioned in the previous discussion, the divorce law makes divorce difficult and encourages reconciliation, hence, desertion can bring to an end easily by either one of the parties is willing to move back into their home.24 1 Matrimonial Causes Act 1973, s1(1)2 ibid s21.3 Buffery v Beffery 1988 2 FLR 3654 MCA 1973, s3(1)5 ibid s1(2)(a).6 Dennis v Dennis 1995 2 All ER 517 Serio v Serio 1983 4 FLR 7568 MCA 1973, s1(2)(b)9 Sapford v Sapford 1954 2 All ER 37310 Goodrich v Goodrich 1971 2 ALL ER 134011 MCA 1973, s2(2)12 ibid s1(2)(b).13 Katz v Katz 1972 3 All ER 21914 Pheasant v Pheasant 1972 1 All E 58715 1980 11 Fam Law 143.16 1972 1 All ER 582.17 1974 2 All ER 766.18 ibid.19 Stephen Gilmore & Lisa Glennon, Hayes & Williams’ Family Law, (5thedn, OUP 2016) 7520 MCA, s1(2)(c)21 Gilmore & Glennon (n28) 77.22 Naylor v Naylor 1961 2 All ER 129 23 Gilmore & Glennon (n28) 7724 MCA 1973, s2(5)