137 / 406
GAZETTE
APRIL 1985
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;
d) the petitioner's address;
e) the respondent's address;
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