The Matrimonial Causes Act 1973 (MCA 1973) is the law within England and Wales that governs divorce.
Under section 24(1), when granting a divorce, decree of nullity of marriage or judicial separation the court can order (subject to restrictions in ss 29(1) and (3) relating to children of the age of majority other than those still in school or in other special circumstances):
- (a) the transfer of property between the parties, or to a children, or for the benefit of a child
- (b) the settlement of property for the partner and children
- (c) the variation of any ante-nuptial or post-nuptial settlement other than a pension
- (d) the extinguishment or reduction of the interest of the parties to any settlement other than a pension
Under s. 24(2), the court can make an order under s. 24(1)(c) even if there are no children, and under s. 24(3) orders and settlements take effect only when the divorce or nullity of marriage is made absolute.
The MCA 1973 was introduced “to consolidate certain enactments relating to matrimonial proceedings, maintenance agreements, and declarations of legitimacy, validity of marriage and British nationality.”
Prior to the enactment of the MCA 1973, the first law that governed divorce was the Matrimonial Causes Act 1857 (MCA 1857). The MCA 1857 was the first Act of its kind to create an alternative to divorce without the need to gain an Act of Parliament. This then created a procedure for divorce by going through the court system alone. However, even though the law now existed for a divorce, a husband and wife were scrutinised under different grounds. For example, a husband could solely rely on his wife’s adultery, where as a wife could only rely on her husband’s adultery if there were aggravating circumstances alongside the adultery.
The law since the inclusion of the MCA 1857 has dramatically changed and there have been many amendments of the law surrounding divorce. The changes throughout the years include; allowing the wife and husband to be seen as equal, this was adopted within the Matrimonial Causes Act 1923 (MCA 1923). Whereas, the Matrimonial Causes Act 1937 (MCA 1937) included grounds of cruelty, desertion or incurable insanity. The Divorce Reform Act 1969 (DRA 1969) sought to create a compromise to incorporate a change within societal views after the Second World War. During this time there appeared to be an enhancement in the number of divorces. There were rising apprehensions for divorce to be achieved more easily.
After the introduction of the DRA 1969, all divorce laws were then consolidated within the MCA 1973. Divorce law now, stipulates that divorce cannot be granted until the couple have been married for an entire year. The grounds for petioning a divorce are laid out within s1 (1) of the MCA 1973 and states that ‘the marriage has irretrievably broken down’. However, the only way in which this can be proven is if one of five factors have existed within the marriage, this is covered within s1 (2) of the MCA 1973.
One of the five factors include; the respondent’s adultery. The term adultery has been defined within Dennis v Dennis as being ‘a voluntary act of sexual intercourse between the husband or wife and a third party of the opposite sex.’ The statutory definition is within s1 (2)(a) of the MCA 1973. One of the most vital elements within the statutory definition is the concept that one member of the couple has committed adultery, but that that they can no longer live with the respondent due to their actions. A case that illustrates this point is Clearly v Clearly where it was established that the reasoning’s behind why the petitioner can no longer live with the respondent are irrelevant as long as adultery has occurred. However, within s2 (1) of the MCA 1973 states that ‘if the parties live together for more than six months after an act of adultery then the petition cannot be based on that act of adultery’.
The second factor within the MCA 1973 is the respondent’s behaviour which is laid out within s1 (2) (b). A case illustrating this point is, Birch v Birch where it was held by the courts that, ‘it is not enough to prove that the respondent has engaged in unreasonable behaviour. It must be behaviour that a right-thinking person… cannot reasonably be expected to live with the respondent.’ The Law Commission acknowledged that ‘virtually any spouse can assemble a list of events which, taken out of context, can be presented as unreasonable behaviour sufficient to found a divorce petition.’ There are a wide range of reasons that can be put within this category, one example is in O’Neil v O’Neil where the husband removed the bathroom door and failed to replace it until eight months after the event, this was deemed to be unreasonable behaviour. Alongside, Livingstone-Stallard v Livingstone-Stallard where the courts granted a divorce on the basis of criticism and rudeness.
The third factor that will need to be considered is the respondent’s desertion. This legislative provision is found with MCA 1973, s1(2)(c) ‘that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.’ There are times when desertion can be justified, for example in Quoraishi v Quoraishi it was deemed to be justifiable when her husband took in a ‘second wife’.
The fourth factor is two years separation with the respondents consent to the divorce, which is found within the MCA 1973, s1(2)(d). Within this legislative provision, it stipulates that the parties must have spent two years apart prior to petitioning for a divorce. It can be a difficult factor to prove, as seen within Hollens v Hollens where the parties were living within the same property but failed to speak, eat or sleep together. The courts would not grant a divorce on this basis.
The final factor is five years separation, which is laid out within the MCA 1973, s1(2)(e). This factor is considered one of the most controversial, due to the parties having to have ‘lived a continuous period of five years apart’ and the grounds of divorce can be granted against the spouse without consent. However, there are numerous defences available to the spouse who wishes against the divorce, one is encapsulated within the MCA 1973 s.5.
The Law Commission stated within Report 192 that they are still dissatisfied with the current law surrounding divorce. They have stated the current law as being ‘confusing and misleading’, as well as being ‘discriminatory and unjust’ and that ‘it provokes unnecessary hostility and bitterness’alongside that ‘it does nothing to save the marriage’ or that ‘it can make things worse for the children’.
The criticisms of the current law from the Law Commission persuaded the Government to reform the law through the Family Law Act 1996 (FLA 1996). However, this Act was never enacted due to disappointing results from trials. Nevertheless, the Lord Chancellor has stated that ‘divorce law should be reformed in some way.’
To conclude, the current law on divorce contains an abundance of criticism and the idea of reform may not be such a dire ideology. Within the current law, couples are remaining married when they no longer want to be and the lengthy and complex divorce procedures are harrowing and costly for couples and affects not only the couple but the family and children surrounding them.
- Dennis v Dennis  2 ALL ER 51
- Clearly v Clearly  1 All ER 498
- Birch v Birch  1 FLR 564
- O’Neil v O’Neil  3 ALL ER 289
- Livingstone-Stallard v Livingstone-Stallard  2 All ER 766
- Quoraishi v Quoraishi  FLR 780
- Hollens v Hollens (1971)115 SJ 327
Statutes and Statutory Instruments
- Divorce Reform Act 1969
- Family Law Act 1996
- Matrimonial Causes Act 1857
- Matrimonial Causes Act 1923
- Matrimonial Causes Act 1937
- Matrimonial Causes Act 1973
- Jonathon Herring, Family Law (sixth edition, Pearson publishing 2013)
- Jonathon Herring, Family Law (5th edition, Pearson publishing 2015)
- Legisaltion.gov accessed 13th February 2016
- Law Commission Report 170 (1988) ‘Facing the future. A discussion paper on the ground for divorce’ accessed 13th February 2016
- Law Commission Report 192 (1990) ‘Family law – the grounds for divorce’ accessed 18th February 2016
- Lord Chancellors Department (20010 ‘The Lord Chancellors Department – departmental report’ accessed 18th February 2016