The Gazette 1985

APRIL 1985

GAZETTE

Divorce in England

by Derry Moloney, Solicitor*

T HE social and economic ties between the Irish Republic and England and the simple fact of geographical proximity, have resulted in many Anglo- Irish marriages. The Irish lawyer may find it useful, therefore, to have a basic knowledge of English divorce law, which will enable him to give preliminary advice to a client who may be considering commencing divorce proceedings in England or who becomes involved in divorce proceedings commenced in England by another party, though part of the advice should be to steer him towards an English solicitor who specialises in the field. Because of the historical connection between the two jurisdictions, Irish practitioners will already have some knowledge of English law. Divorce, however, is one area where English law has changed drastically since Irish Independence. This article does not deal in detail with the recognition of an English divorce in Ireland. Basically, the position is that an English divorce will be recognised if under Irish law the parties were domiciled in England, but not if the jurisdiction was founded on residence. In England the wife has an independent domicle. Jurisdiction The English Courts will have jurisdiction to hear a petition for divorce where either one or both of the parties to a marriage is (a) domiciled in England or (b) has been habitually resident in England for one year immediately prior to the date of the petition. It is not necessary that it be the party seeking the divorce who meets these require- ments. For example, a wife who may be both resident and domiciled in Ireland could petition in England for a divorce if her husband, though domiciled in Ireland, has been habitually resident in England for the year immediately prior to the date of the petition. Such a divorce, however, would not be recognised in Ireland. Grounds for Divorce There is now only one ground for divorce in England, that is the irretrievable breakdown of the marriage. However, in order to establish this, it is necessary to prove one of five facts: a) the adultery of the respondent; b) the unreasonable behaviour of the respondent; c) desertion by the respondent; d) two years' separation, together with the respon- dent's consent to the divorce; e) five years' separation.

There is a preliminary hurdle to be jumped in that no petition for divorce can be filed within one year of the marriage. With the petition, which will follow a prescribed form, it is necessary to give information on a number of standard topics: a) the date and place of the marriage; b) the basis of the English Court's jurisdiction; c) statement concerning any previous Court proceedings in England or Wales concerning the marriage; 0 statement as to any children of the family; g) any arrangements regarding the said children; h) the fact which one is seeking to establish in order to ground the petition, together with particulars of the facts relied on; i) if the petitioner requires any ancillary relief, such as maintenance, it will be applied for in the petition. The respondent spouse will be served with the petition and will be required to complete a form in which he acknowledges receipt of the petition and in which he is required to state whether or not he intends to defend the proceedings. If he does not intend to defend, the matter can then proceed without need of any attendances at Court, unless there are questions concerning children or finance which need to be resolved. The petition will be issued initially in either a County Court, or in the Divorce Registry in London. If the petition is to be defended, or if there are complex matters concerning children or finance to be dealt with, it will be transferred to the High Court for a full hearing before a Judge. Children Whenever there are children of the marriage, the Court has to satisfy itself that the arrangements made for the children are satisfactory. This is so even where both parties are agreed on the arrangements for the children. Thus, it will be necessary for the party who will have day to day care of the children to attend before the Court to satisfy it as to the arrangements for the children. If the parties do not agree as to the guardianship and/or the day-to-day care and control of the children, the Court will decide these matters on the basis of what is in the best interests of the children concerned. 125 d) the petitioner's address; e) the respondent's address;