Familylaw

Robert Jago
2008
LLB 2660019
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This subject guide was prepared for the University of London External Programme by:
Robert Jago, MPhil (Cantab), Lecturer in Law, School of Law, University of Surrey.
This is one of a series of subject guides published by the University. We regret that owing
to pressure of work the authors are unable to enter into any correspondence relating to,
or arising from, the guide. If you have any comments on this subject guide, favourable or
unfavourable, please use the form at the back of this guide.

Publications Offce
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Published by the University of London Press
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Printed by Central Printing Service, University of London.
Design and layout by Omnis Partners, Cumbernauld
All rights reserved. No part of this work may be reproduced in any form, or by any means,
without permission in writing from the publisher.
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Contents
1 Introduction 5
2 Marriageandcivilpartnerships 13
3 Divorceanddissolution 35
4 Protectionagainstdomesticviolence55
5 Familymaintenance 77
6 Financialprovisionupondivorce,dissolution,nullityandseparation 87
7 ChildsupportandtheChildSupportActs 109
8 Cohabitation 129
9 Statusandparentage 149
10 Wardshipandtheinherentjurisdiction 167
11 Thewelfareofthechild 177
12 Thecourtspowersinfamilyproceedings 191
13 Childrenandlocalauthorities 203
14 Adoption 223
Feedbacktoactivities 239
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1 Introduction
Contents
Introduction 6
11 Readingandresources 7
12 Allocatingyourtime 9
13 Theexamination 10
14 Abbreviationsusedinthissubjectguide 11
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Introduction
The law relating to the family is of crucial importance to every individual, whether adult
or child. It is family law that regulates interpersonal relationships. Family law provides the
legal framework for the establishment of marriage, the dissolution of marriage, the legal
consequences of marriage and cohabitation, civil partnerships and the legal regulation
of domestic violence. Much of family law nowadays is concerned with the law relating to
children. The status of a child, its parentage, the rights of the child, the childs welfare and
the powers of the state in relation to children are all central concerns of this subject.
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1.1 Readingandresources
Recommendedtexts

You are advised to purchase a collection of statutes concerning family and child law. There
are a number of collections which are appropriate. They include compilations published by
Sweet & Maxwell and by Blackstone. Your main objective must be to secure an up-to-date
statute book.
The most up-to-date and appropriate textbook

for this subject is:

Herring, J. Family Law. (Harlow: Longman, 2007) third edition
[ISBN 9781405846806 (pbk)].
Other suitable texts include:
Masson, J., R. Bailey-Harris and R. Probert, Cretneys Principles of Family Law. (London:
Sweet and Maxwell, 2008) Eighth edition [ISBN 9780421960107]
Diduck, A. and F. Kaganas. Family Law, Gender and the State: Text, Cases and Materials.
(Oxford: Hart Publishing, 2006) second edition [ISBN 9781841134192].
Harris-Short, S. and J. Miles, Family Law: Text, Cases and Materials. (Oxford: Oxford
University Press 2007) [ISBN 9780199277162].
Lowe, N. and G. Douglas, Bromleys Family Law. (Oxford: Oxford University Press, 2006)
tenth edition [ISBN 9780406959515].
Probert, R. Cretneys Family Law. (London: Sweet & Maxwell, 2006) sixth edition
[ISBN 9780421931008].
Standley, K. Family Law. (Basingstoke: Palgrave, 2008) sixth edition
[ISBN 9780230537460].
Welstead, M. and S. Edwards, Family Law. (Oxford: Oxford University Press, 2008) second
edition [ISBN 9780199231270].
Other overview texts include:
Diduck, A. Laws Families. (Cambridge: Cambridge University Press, 2003)
[ISBN 9780406967336].
ODonovan, K. Family Law Matters. (London: Pluto Press, 1993)
[ISBN 9780745305073].
Casebook
If you wish to buy a casebook, you should purchase:
Hale, B., D. Pearl, E. Cook and D. Monk, The Family, Law and Society: Cases and Materials.
(Oxford: Oxford University Press, 2008) sixth edition [ISBN 9780199204243].
Statutebook
As mentioned above, you should also obtain an up-to-date statute book. Under the
Regulations you are allowed to take one authorised statute book into the examination
room.
Information about the statute books and other materials that you are permitted to use in
the examination is printed in the current Regulations, which you should refer to.
Please note that you are allowed to underline or highlight text in these documents
but you are not allowed to write notes etc. on them. See also the Guide to Examination
Technique for further guidance on these matters.
The Regulations for the LLB state:
5.3 Students may underline and/or highlight passages with a coloured pen in the materials,
but all other forms of personal annotation on statues and other materials permitted to be
taken into the examination room are strictly forbidden.
Statute books are regularly updated: try to obtain the latest edition.

It is very important that you

obtain the latest editions of
any books that you use, whether
textbooks or statute books.

It is very important that you

obtain the latest editions of
any books that you use, whether
textbooks or statute books.

From now on, we will refer to this

text in an abbreviated form using
the authors name and page
numbers, for example: Herring
pp.1319.

From now on, we will refer to this

text in an abbreviated form using
the authors name and page
numbers, for example: Herring
pp.1319.
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1.1.1 Otherbooksandresources
There is now a wide collection of valuable literature dealing with specifc areas within the
Family law syllabus. They will be referred to throughout this subject guide, particularly in
those sections concerning the law relating to children. You are not advised to purchase
these specialised texts but may fnd reference to them useful and stimulating.
Journals
You may fnd it useful to refer regularly to journals that specialise in family law. The two
most useful journals are Family Law and Child and Family Law Quarterly.
Onlineresources
There are a number of useful websites for Family law students. For example:
www.ariadne.ac.uk/issue2/sosig
The Social Science Information Gateway
www.bailii.org
Statutes from 1998 and cases HL, Court of Appeal and High Court from 1996
www.fba.co.uk/
Family Law Bar Association site
www.cafcass.gov.uk
Children and Family Court Advisory and Support Service
www.everychildmatters.gov.uk/strategy/childrenscommissioner
The Childrens Commissioners site
www.csa.gov.uk
The Child Support Agencys site
www.familylaw.co.uk
Family Law Update Service
www.resolution.org.uk
Resolution, which was formerly known as the Solicitors Family Law Association (SFLA)
www.opsi.gov.uk
Includes all Acts of Parliament and Statutory Instruments since 1988
www.homeoffce.gov.uk
The Home Offce web site.
www.lawsociety.org.uk/areasofaw.law
Follow the Law Societys links to the family law panel and children panel from this section
www.kent.ac.uk/lawlinks/speciallegaltopics.html
Provides an index of family law sites once you click on the family law link
www.dca.gov.uk/family/domviol.htm
DCA page on domestic violence for archive purposes only
www.familyandparenting.org
The Family and Parenting Institute site
www.direct.gov.uk/en/Parents/FamilyIssuesAndTheLaw/index.htm
This Government Information Services web site gives you access to, for example, informa-
tion about divorce and relationship breakdown
www.parliament.uk
The web site of the Houses of Parliament which includes the text of House of Lords judg-
ments within two hours of delivery and also Hansard
www.statutelaw.gov.uk
The UK statute law database, giving revised versions of primary legislation.

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1.2 Allocatingyourtime
Family law has a wide and diverse syllabus and adequate time must be set aside in order
to master the details of the law. It is impossible to say precisely how much time you should
set aside for studying Family law because students have different learning rates.
Some topics will require considerably more time than others. The formalities of marriage,
for example, although detailed and rather complex, should require much less of your time
than the law relating to divorce, fnancial provision and domestic violence. The same is true
of the law relating to children. This comprises 50 per cent of the syllabus and the issue of
the welfare of the child and the rights of the child, for example, is likely to take consider-
ably less time to study than the status of the child will. Also, the law relating to the powers
of local authorities in relation to children is a large and complex subject and far more time
will need to be devoted to it than to, for example, the matter of wardship and the courts
inherent jurisdiction.
You should set aside a specifc amount of time each week to study this subject, increasing
the amount in the six weeks before the examination. Remember, though, that individuals
vary greatly in their needs; the time to stop studying is when you know the topic thorough-
ly and not until then. It is very important to plan your time carefully. Do not forget to leave
time for revision every week and month in addition to the period before the examination.
Revision must be a continuous process.
1.2.1 Howtousethesubjectguide
The guide closely follows the syllabus and has much the same pattern as the textbooks.
Chapters 2, 3 and 4 concern the formation of marriage, civil partnerships, the law of nul-
lity, the grounds for divorce and remedies available in the context of domestic violence.
Chapters 5, 6, 7 and 8 describe fnancial support for family members during cohabitation
and marriage and on divorce. The remainder of the guide, chapters 914, deals with the law
relating to children.
You are advised to read the relevant chapter of this subject guide before reading the
textbook(s) in order to get an overall view of the topic. Note, however, that this subject
guide is not a substitute for the textbook(s). When you have read both the subject guide
and the textbook(s), return to the subject guide in order to answer the Activity questions
that have been set for you. Do as many of the Activities as you can: they will help you learn
and help you remember! Feedback to the Activities is provided at the back of this guide.
1.2.2 Topicsnotincludedinthesubjectguide
Certain topics are expressly excluded from the Family law syllabus. They include:
the law relating to inheritance and family provision on death
recognition of foreign marriage and divorce
family property (thereby excluding from the syllabus implied, resulting and constructive
trusts and the impact of the improvement legislation).
Topics which are within the syllabus but which are rarely examined are omitted from the
subject guide: these will become apparent as you work through the guide. We presume
that you are familiar with the courts involved in family law from your study of the English
legal system in Common law reasoning and institutions.
1.2.3 TheHumanRightsAct1998
As with other areas of English law, in family law there is a growing body of case law which
deals with the incorporation into English law of most of the European Convention of
Human Rights and Fundamental Freedoms by virtue of the Human Rights Act 1998. Rather
than forming a single chapter in this guide, the application of rights under the Act will be
considered at relevant points throughout the subject guide.

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1.3 Theexamination
1.3.1 Formatoftheexamination
Important: the information and advice given here is based on the examination structure
used at the time this subject guide was written (summer 2008). However, the University
may alter the format, style or requirements of an examination paper without notice.
Because of this, you must check the instructions on the paper you actually sit.
The examination lasts three hours and you will be required to answer four out of the eight
questions set.
You may take your statute book into the examination with you, but please note the rules
stated above in section 1.1.
1.3.2 Examinationtechniques
Family law examination papers usually comprise both problem questions and essay ques-
tions. These two types of question obviously require very different techniques.
To answer problem questions you need to be able to:
identify the relevant area of law under discussion
identify the relevant facts in the question
apply both statute and case law to those facts.
It is important to remember that of all the areas of law you study, family law is probably the
most fuid and unpredictable as it has its own proceedings. Cases with very similar facts can
be decided differently. That said, you should attempt to use this wide body of case law to
reach sensible conclusions. If you are asked to advise X, for example, you should make sure
that you do so.
In family law, case law is obviously important. When studying this subject you should make
careful notes on each topic, including the most important cases, so that when it is time for
revision you have a good set of notes on which to base that revision. This can be diffcult
in family law, as many of the cases are identifable only by a letter and a year, for example
Re W (1999). Sometimes there is more than one case with the same letter in the same year
and so you need to look at the full title of the case. For example, in 1999 there were at least
three cases entitled Re W. The frst was Re W (Contact: Parents Delusional Beliefs) [1999] 1 FLR
1263, the second Re W (Residence) [1999] 2 FLR 390 and the third Re W (Disclosure to Police)
[1999] 1 WLR 205. You should note that in one of the cases the sub-heading tells us it was
a case concerning contact, another case concerned residence whilst the last concerned
disclosure. Be careful when taking notes that you are clear which particular case you are
citing. All too often Examiners in this subject fnd that students have not mastered the case
law to the point where they can cite the relevant cases. It is only by allocating suffcient
time to careful note-taking throughout your course of study that you will be able to revise
effectively and successfully.
In many areas of family law there are detailed and comprehensive statutory provisions
which must be interpreted and applied to questions. You should avoid the temptation to
waste your time copying out these provisions in the examination. The Examiners know that
you have a statute book with you in the examination and they also know the provisions.
Rather than copying these out, you should be able to briefy cite the relevant provision and
then proceed to interpreting and applying the law.
If you are answering essay questions,

a different set of skills is required. The Examiners are

looking for good critical answers to often diffcult questions and issues. Only by being able
to demonstrate a clear understanding of these issues, and the manner in which they are
refected in the law, will your answer attain higher marks.
Good luck with your studies!
Robert Jago.

For guidance on writing essays

in exam conditions see the
Learning skills for law subject
guide.

For guidance on writing essays

in exam conditions see the
Learning skills for law subject
guide.
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1.4 Abbreviationsusedinthissubjectguide
AA Adoption Act 1976
ACA Adoption and Children Act 2002
CA Children Act 1989
CA 2004 Children Act 2004
CBA Child Beneft Act 2005
CPA Civil Partnership Act 2004
CSA Child Support Act 1991, 1995
CSPSSA Child Support, Pensions and Social Security Act 2000
DPMCA Domestic Proceedings and Magistrates Court Act 1978
DVCVA Domestic Violence, Crime and Victims Act 2004
DVMPA Domestic Violence and Matrimonial Proceedings Act 1976
EA Equality Act 2006
ECHR European Convention on Human Rights and Fundamental Freedoms
EPO Emergency Protection Order
FLA Family Law Act 1996
FLRA 1969 Family Law Reform Act 1969
FLRA Family Law Reform Act 1987
FMA Forced Marriage Act 2007
FPR Family Proceedings Rules 1991
GRA Gender Recognition Act 2004
HA Housing Acts 1980, 1985, 1996
HFEA Human Fertilisation and Embryology Act 1990
HFEDFA Human Fertilisation and Embryology (Deceased Fathers) Act 2003
HL House of Lords
HRA Human Rights Act 1998
MA Marriage Acts 1949, 1994
MCA Matrimonial Causes Act 1973
MHA Matrimonial Homes Act 1983
MRGLA Marriage (Registrar-Generals Licence) Act 1970
NSPCC National Society for the Prevention of Cruelty to Children
PHA Protection from Harassment Act 1997
WRPA Welfare Reform and Pensions Act 1999
YJCEA Youth Justice and Criminal Evidence Act 1999
The following abbreviations for journals cited are used in this guide:
CFLQ Child and Family Law Quarterly
CLJ Cambridge Law Journal
CLP Current Legal Problems
Fam Law Family Law
JCL Journal of Child Law
JSWFL Journal of Social Work and Family Law
LQR Law and Quarterly Review
LS Legal Studies
MLR Modern Law Review
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2 Marriageandcivilpartnerships
Contents
Introduction 14
21 Thedistinctionbetweenvoidandvoidablemarriages 15
22 Thegroundsforavoidmarriage 17
23 Voidablemarriages 23
24 Effectsofanullitydecree 29
25 Civilpartnerships 30
Refectandreview 34
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Introduction
By 2002 demographic evidence revealed that around 25 per cent of non-married women
under 60 and 26 per cent of non-married men under 60 were cohabiting in England and
Wales.

Statute has gone some way to acknowledging the growing legal rights of cohabit-
ees. Despite this shift, marriage remains the foundation of English family law. The basic rule
of English law is that a marriage can be created between any man and woman who comply
with the stipulated formal requirements of marriage and who have the necessary legal
capacity. Should these requirements be missing then the law of nullity can be applied.
It is through the law of nullity that the defnition of a valid marriage may be understood, for
nullity lays down the fundamental requirements for a valid marriage. There are two limbs
to nullity: marriages that are void from their date of ceremony and have no legal effect and
marriages that, while defective, are treated as valid unless and until they are annulled by
the court.
Since 2004 it has also been possible for same-sex couples to register a civil partnership.
This takes place in accordance with the Civil Partnership Act 2004 (CPA). The formalities for
these partnerships do, in many instances, mirror those required for a marriage. The forma-
tion of these partnerships will be discussed later in this chapter.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
explain the relevant distinctions between void and voidable marriages
list and give the principal details of the law relating to each of the particular grounds for
invalidating a marriage
describe the powers of the court in relation to property distribution and fnancial provi-
sion and the rules relating to the status of children born into void or voidable marriages.
acknowledge the similarities and differences between the formation of a marriage and a
civil partnership.
Essential reading
Herring, Chapter 2, pp.3392.
Masson et al., Chapter 1, pp.1341 and pp.4384.
Probert, Chapter 2, pp. 2735; Chapter 3, pp.3755.
Standley, Chapter 2, pp. 2351 (sections applying to marriages).

See Central Statistics Offce, Social

Trends 32 (2002) London, HMSO,
pp. 4243. www.statistics.gov.uk

See Central Statistics Offce, Social

Trends 32 (2002) London, HMSO,
pp. 4243. www.statistics.gov.uk
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2.1 Thedistinctionbetweenvoidandvoidablemarriages
English law requires parties to a marriage, and now a civil partnership, to comply with the
correct formalities and to have the legal capacity to contract a marriage or civil partnership.
When there is some irregularity in the legal capacity, a party may seek a decree of annul-
ment. Here a distinction is drawn between those marriages or civil partnerships that the law
regards as void and those it regards as voidable. The distinction between void and voidable
marriages was explained by Lord Greene MR in De Reneville v De Reneville [1948] P. 100, III:
A void marriage is one that will be regarded by every court in any case in which the exist-
ence of the marriage is in issue as never having taken place and can be so treated by both
parties to it without the necessity of any decree annulling it; a voidable marriage is one
that will be regarded by every court as a valid subsisting marriage until a decree annulling
it has been pronounced by a court of competent jurisdiction.

There are three main differences between a void and voidable marriage (or civil
partnership).
1 A decree of nullity can be pronounced in relation to a void marriage or civil partnership
at any time, even after the death of the parties. In contrast, a decree can only be granted
annulling a voidable marriage or civil partnership during the lifetime of both parties.
2 If the marriage or civil partnership is void, no valid marriage existed, whereas, if the mar-
riage or civil partnership is voidable, it is valid unless and until annulled.
3 If the marriage or civil partnership is void, any interested person may take nullity proceed-
ings. If the marriage or civil partnership is voidable, only the parties to it may take proceed-
ings to have it annulled.
2.1.1 Thedistinctionbetweenadecreeofnullityanddivorce
A decree of nullity is a statement that a marriage or civil partnership never existed: the
decree always states that the marriage or civil partnership is and has been, null and void.
The conditions of annulment, with the exception of wilful refusal to consummate the
marriage (which does not apply to the civil partnership), relate to conditions at the time of
marriage. Divorce and dissolution, on the other hand, concern marriages and civil partner-
ships that exist but which are now being brought to an end. The grounds for divorce and
dissolution irretrievable breakdown are concerned with events that occur after the
marriage takes place. Despite the fact that nullity and divorce and dissolution have these
different concerns, the law has considerably assimilated the consequences of nullity and
divorce and dissolution decrees, especially in relation to the status of children born within
an annulled marriage and fnancial provision on the granting of a decree.
2.1.2 Thesignifcanceofnullity
Historically, the law of nullity was an important remedy for marital breakdown because,
until 1857, judicial divorce was unavailable. In the absence of a private Act of Parliament,
nullity was the only way of bringing a marriage to an end. Until the advent of irretrievable
breakdown as the grounds for divorce, introduced by the Divorce Reform Act 1969, nullity
remained important as it was the only way an innocent spouse could be dispensed with.
Since 1969, nullity has dwindled in importance. For example, in 1998 there were only 474
nullity decrees, compared with 143,879 decrees of divorce. Nonetheless, nullity is important
because it clarifes the legal capacity required for a marriage in English law and provides
a remedy for those individuals who, for cultural or religious reasons, are forced to eschew
divorce.
It must be noted, however, that there is some support for the view that, given the nature of
nullity proceedings (which usually involve a full hearing and sometimes unpleasant eviden-
tiary disputes, at the very least), the concept of the voidable marriage should be abolished
(Cretney et al., p.68).

Authors emphasis.

Authors emphasis.
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Summary
English law demands that some formalities are met before a couple may marry or form
a civil partnership. If these formalities are missing then a party to the marriage or civil
partnership may seek a decree of nullity to nullify the marriage or civil partnership, thereby
erasing its existence. The law of nullity is a useful device for those who, for religious
reasons, do not want to divorce. It may also be useful for those in a civil partnership who do
not want to proceed with dissolution of the partnership when defective formalities would
suggest there was no correctly formed partnership.
A marriage or civil partnership can be void or voidable. Void marriages and civil partner-
ships are those which are deemed by a court never to have existed. A voidable marriage or
civil partnership is one which is deemed to have existed until one of the parties has sought
to annul it on one of the specifed grounds. Calls for reform of the law of nullity are usually
based around the rules concerning voidable marriages being abolished.
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2.2 Thegroundsforavoidmarriage
The grounds for a void marriage are set out exhaustively in s.11 Matrimonial Causes Act 1973
(MCA). These grounds also apply to civil partnerships (see page 30 for further details).
2.2.1 Prohibiteddegrees
The Marriage Act 1949 Schedule 1 (as amended) sets out a list of relatives whom a man
may not marry. A corresponding list of prohibitions is set out for women. The prohibited
degrees include half-blood relationships.
The following points should be noted about the statutory list of the prohibited degrees of
marriage.
If a child is adopted he or she remains within the same prohibited degrees in relation to his
or her natural parents and other relatives as if he or she had not been adopted (Adoption
Act 1976, ss.39(1), 47(1)). In addition, an adoptive parent and the child he or she adopts are
within the prohibited degrees (Adoption Act 1976, s.39(1)) but there is no other prohibition
arising out of adoption. A man may therefore marry his adoptive sister or any other female
adoptive relation and vice versa.
The list of prohibited degrees includes not only relationships of consanguinity (i.e. where
there is a blood relationship between the parties) but also certain relationships of affnity
(i.e. relationships created by marriage). Since 1980 a number of private Acts of Parliament
have been promoted by couples who wanted to marry within an in-law or step relation-
ship. The policies underlying such marriages were considered in a report No Just Cause
produced by a group set up by the Archbishop of Canterbury. The group was divided as to
the policy the law should pursue in respect of marriages between affnes

and the ensuing

legislation, the Marriage (Prohibited Degrees of Relationship) Act 1986, represents a com-
promise between the majority and minority views expressed in the report.
The basic premise of the 1986 legislation is that marriage with relatives by affnity is permit-
ted. There were two cases of marriage to an affne which were permitted only subject to
conditions. Thus, where marriages within an in-law relationship are concerned, a man was
only able to marry his daughter-in-law (or a woman her son-in-law) if both parties were
over 21, or the childs spouse (i.e. the father-in-laws son or the mother-in-laws daughter)
and that spouses mother or father were dead.
This legal impediment to in-law marriages was later considered by the European Court of
Human Rights in B & L v UK (Application No 36536/02), The Times, September 13, 2005. The
court ruled that the law which prohibited marriage between parents-in-law and children-
in-law was a breach of their rights under Article 12 of the Convention. The government
argued before the court that the restriction was not absolute but once Bs wife and Ls
husband had died then marriage was possible. The court were not convinced as the rela-
tionship between B & L was not prohibited, merely the marriage.
In response the government published the Marriage Act 1949 (Remedial) Order 2007
(SI 2007/438) and this amends the incompatibility between English law and that of the
Convention. The provisions of the 1949 Act, which prohibit the marriage of a person to the
parent of his former spouse and the marriage of a person to the former spouse of his child,
are repealed by Article 2(a) of this Order.
Marriage to a stepchild is only permitted if two conditions are satisfed: at the time of the
marriage both of the parties must be over 21 and the stepchild must not have been a child
of the stepparents family at any time when the stepchild was under 18.
You should note that the underlying policy of these complex provisions is to preclude con-
fusion in family relations and to discourage marriages between parties who have enjoyed a
parent/child relationship in the past.
Activity 2.1
What arguments can you think of that justify these restrictions?

Affnes: people related by

marriage.

Affnes: people related by

marriage.
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2.2.2 Minimumage
A marriage is void if either party is under 16.
This is an absolute rule for a person domiciled in England and cannot be avoided by marry-
ing abroad in a country where marriages with those under 16 are permitted. In Pugh v Pugh
[1951] P 482, therefore, a domiciled Englishman who married a 15-year-old Hungarian girl in
Austria (so that the marriage would have been valid in both Austria and Hungary, where the
girl was domiciled) was regarded in England as party to a void marriage. Pearce J held that
this was an absolute rule for any English person: that they may not marry when they are
under 16, nor marry anyone under that age.
Activity 2.2
Why do you think 16 is the minimum age to get married?
2.2.3 Defectiveformalities
In order to understand the position of the law on defective formalities you need to grasp
what those formalities are. Legal regulation of the actual ceremony of marriage began with
the enactment of Lord Hardwickes Marriage Act 1753. Prior to this Act no formalities were
required for the formation of a valid marriage. Provided that there was an agreement to
marry, which could be implied from the fact of cohabitation, the law would recognise the
existence of marriage. The public policy of securing publicity for a marriage remains one of
the objectives of English law, together with the need to ensure that consent to marriage has
been freely given. The statute that sets out the formalities of marriage is the Marriage Act
1949 as amended. The position is complex; indeed, the Law Commission has said that it is:
not understood by members of the public or even by all those who have to administer it.
(Law Com No. 53, Annex, paragraph 6)
Much of this complexity results from the fact that English law gives intending spouses a
wide choice of marriage ceremony: they can marry in accordance with the prescriptions
of the Church of England (Anglican Church) and, subject to conditions, other religions or
they can marry in a secular form in a Register Offce (or by a Registrar in a range of other
approved venues).
Formalitiesofmarriage
Parental consent (sometimes required)
If either party to an intended marriage is under 18 and not a widow or widower, MA s.3 provides
that the consent of each parent (if any) of the child who has parental responsibility for the
child or each guardian (if any) of the child is required. There are four exceptional situations.
Where a residence order

is in force with respect to the child, in which case the consent

of the person or persons with whom the child lives or is to live as a result of the order is
required.
Where a care order

is in force with respect to the child, in which case the consent of the
local authority designated in the order, as well as the parents or guardians, is required.
If a residence order is in force with respect to the child immediately before he or she
reached the age of 16, the consent of the person or persons with whom the child lived or
was to live as a result of that order is required.
If the child is a ward of court, the consent of the court is required in addition to that of the
parents and guardians.
If it is impossible to obtain the necessary consent, or if the consent is withheld, the consent
of the court may be obtained. However, any marriage solemnised without the required
consent will be valid.
Preliminaries to the marriage ceremony
Certain preliminary steps must be observed before a marriage can be celebrated. The aims
of these preliminaries are to provide a measure of publicity for the marriage and to give
time in which objections to the marriage (e.g. on the grounds that it is bigamous) may be
made. The form they take depends on whether a Church of England ceremony or some
other ceremony, civil or religious, is intended.

A residence order is an order

settling the arrangements to
be made as to the person with
whom a child is to live.

A residence order is an order

settling the arrangements to
be made as to the person with
whom a child is to live.

A care order is an order made to

ensure a childs protection. It is
usually awarded by the courts
upon representations made by
the local authority.

A care order is an order made to

ensure a childs protection. It is
usually awarded by the courts
upon representations made by
the local authority.
F~uiiv i~w 2 M~rri~cr ~No civii r~r:Nrrsnirs r~cr :g
Church of England (Anglican ceremony): Anglican marriages (church weddings) may be
preceded by banns,

which are read out on successive Sundays. The parties may marry after
the third reading. Alternatively, parties may obtain a common licence from the church
authorities or a special licence issued on behalf of the Archbishop of Canterbury. The latter
enables the wedding to take place in any venue and at any time.
Civil and non-Anglican religious ceremonies: These have now all been standardised by the
Immigration and Asylum Act 1999. The parties have to obtain a superintendent registrars
certifcate. Both parties must give notice to the superintendent registrar of their district
of their intention to marry. Along with this, the parties have to give details of their name,
marital status, place of residence, occupation and nationality. This does not need to be
done as a couple but must be done in person. Once this information is collected a waiting
period of 15 days follows. This waiting time can be reduced if there is a compelling reason.
This procedure has been standardised to try and tackle the problem of sham marriages.

As the parties have to meet the superintendent personally there is an opportunity for
superintendents to raise any suspicions as to the possibility of the marriage being a sham.
Further restrictions have been put in place by the Asylum and Immigration (Treatment
of Claimants etc.) Act 2004 but, as these only applied to civil and non-Anglican religious
ceremonies, they have been criticised as being incompatible with both Articles 12 and 14 of
the European Convention on Human Rights. (See R (Baiai and others) v Secretary of State for
the Home Department [2006] EWHC 823.)
The marriage ceremony
The principal categories of marriage ceremony in English law are the following.
Anglican marriages. Such marriages can take place after any of the ecclesiastical prelimi-
naries have been observed or after a superintendent registrars certifcate has been issued.
The marriage must be celebrated by a member of the clergy. He or she is entitled to refuse
to marry any person whose former marriage has been dissolved if the former spouse is still
living (Matrimonial Causes Act 1965 s(8)2).
Civil marriages.

Such marriages must be secular and take a simple form. The parties
declare that they know of no lawful impediment to the marriage and each must call upon
those present to witness that they take the other as their lawful wedded husband or wife.
The ceremony takes place in the Register Offce or other place licensed for marriage cer-
emonies (see below), with open doors and two or more witnesses must be present.
Marriages in a registered place of religious worship. Parties to such marriages must com-
ply with civil preliminaries. The building in which the ceremony is to take place must be
registered for the solemnisation of marriages as a place of meeting for religious worship.
Courts have held that religious worship within this formulation does not extend to the
practices of Scientologists (see ex parte Segerdal [1970] 2 QB 697), but it is clear that Sikh
and Hindu temples and Islamic mosques are entitled to be registered for the solemnisation
of marriage. If a Registrar is not present, the celebrant must be an authorised person to
carry out marriages. The form of the ceremony is a matter for the parties and the religion
controlling the building, although the parties must at some stage declare, as in civil mar-
riages, that they know of no lawful impediment and each must state that they call upon
those present to witness that they take the other party to the marriage to be my lawfully
wedded wife (or husband).
Quaker

and Jewish marriages. These were excepted from the provisions of Lord
Hardwickes Act. Although civil preliminaries must be completed, the celebration of Quaker
and Jewish marriages is governed solely by the rules of those religions.
Places licensed for marriage ceremonies
The Marriage Act 1994 amends the Marriage Act 1949 and provides that designated public
places may be licensed by local authorities for the ceremony of marriage. The 1994 Act also
provides that marriages may be solemnised in registration districts in which neither party
resides. The Marriages (Approved Premises) Regulations 1995 state that the premises must
be a permanently immovable structure comprising at least a room, or any boat or other
vessel which is permanently moored. The ceremony cannot be religious.
All marriages, except Jewish and Quaker marriages and those that are conducted under
special or Registrar Generals licence, must take place between 8.00 am and 6.00 pm.
However, failure to observe these requirements will not invalidate the marriage.

Banns: a technical word for the

formal and public declaration of
an intention to marry.

Banns: a technical word for the

formal and public declaration of
an intention to marry.

A sham marriage is one where a

couple, perhaps for immigration
purposes, marries in order that
one party gains residence in
the UK.

A sham marriage is one where a

couple, perhaps for immigration
purposes, marries in order that
one party gains residence in
the UK.

In a civil marriage, no
declarations or procedures of a
religious nature are permitted.

In a civil marriage, no
declarations or procedures of a
religious nature are permitted.

Quakers are members of the

Religious Society of Friends, a
350-year-old Protestant Christian
group distinguished by peaceful
principles and plainness of dress
and manners.

Quakers are members of the

Religious Society of Friends, a
350-year-old Protestant Christian
group distinguished by peaceful
principles and plainness of dress
and manners.
r~cr zo UNivrrsi:v or LoNooN Ex:rrN~i Svs:ru
Failuretoobserveformalities
The majority of defective formalities in a marriage do not affect the validity of a marriage
at all. In those cases where the form does have a bearing on the validity of the marriage,
the marriage will be void only if both parties contracted it with knowledge of the defect. In
effect, therefore, it is impossible for a person in England to contract a marriage innocently
which is void because of a formal defect.
It must be noted, however, that in R v Bham [1966] 1 QB 159 the court did suggest that
marriage in English law can only be created by something which can be described as a
ceremony in a form known to be, and recognised as capable of producing, a valid marriage.
In s.24 and s.48 the MA specifcally enacts that certain defects, including failure to acquire
the necessary consents, will not invalidate a marriage. In s.25 and s.49 it sets out those
defects which will invalidate a marriage where both of the parties are aware of the irregu-
larity at the time of the ceremony. The Act speaks of the parties knowingly and wilfully
intermarrying in contravention of the requirements, thus making it unclear whether both
parties must know that, as a question of fact, the formality has not been complied with or
whether in addition they must know that, as a question of law, the defect will invalidate the
marriage. The Act is silent as to the effect of other irregularities, but it may be confdently
presumed that, unless the defect is one which the Act states may invalidate the marriage,
such a defect will not affect its validity. Some recent case law has assisted our interpreta-
tion of the legislation as to the effect of irregularities.
In Gereis v Yacoub [1997] 1 FLR 854 the court held that, even though the parties had lived
together as husband and wife after the ceremony, their knowledge of the defective
formalities (no notice to the superintendent registrar, marriage not in a registered building
and conducted by an unauthorised person) meant the marriage was void.
However, in CAO v Bath [2000] 1 FLR 8, the appellant had been refused a widows pension
on the grounds that her 37-year marriage was void as the Sikh temple in which she had
married was not a registered building for the purpose of celebrating marriages. The Court
of Appeal held that, as there was a common-law presumption that a couple who claimed to
be husband and wife, following long cohabitation, had married (unless the contrary were
proved), it would be wrong to place the appellant, who had gone through a ceremony, in a
worse position than someone who could not point to any ceremony at all. Furthermore, as
both she and her husband had been unaware that the temple was not registered, they had
not knowingly and wilfully intermarried as provided by s.49 of the Marriage Act 1949. Had
they known, the court concluded, the marriage would have been void.
For the status of a Hindu marriage in England see Gandhi v Patel [2002] 1 FLR 603 and con-
trast the case with A-M v A-M [2001] 2 FLR 6. The status of foreign engagements, marriage
and divorce have also been considered in Abbassi v Abbassi [2006] EWCA Civ 355 and Alfonso-
Brown v Milwood [2006] EWHC 642 (Fam).
Timeforreform?
In recent years there has been a review of the way in which marriages are celebrated,
publicised and registered. A series of papers have considered a new system of civil registra-
tion and, at the same time, the Church of England Synod (the Churchs deliberative and
legislative body) has reviewed and endorsed a new system of joint state and ecclesiastical
preliminaries to marriage. The government has not implemented any of these changes,
recognising the need for primary legislation. Full details can be found in the Church of
England Synod paper, Registration Modernization: A position and consultation paper on
the delivery of local registration service in England and Wales (November 2005).
No signifcant changes have yet been actioned.
Activity 2.3
Why does the law concern itself so much with the formalities of marriage?

F~uiiv i~w 2 M~rri~cr ~No civii r~r:Nrrsnirs r~cr z:

Oneormorepartyalreadymarried
A marriage is void if at the time of marriage either party is lawfully married to another
party. The marriage remains void even if the parties believe on reasonable grounds that
the other party to the marriage was dead and if a defence to a charge of bigamy was suc-
cessfully pleaded. Parties who have reasonable grounds to believe that the other party to
the marriage is dead are advised to seek a decree of divorce or a decree of presumption of
death and dissolution of marriage within s.19 MCA (see Cretney et al., pp.4748).
Partiesarenotrespectivelymaleandfemale
Marriages between persons self-evidently of the same sex are void (see Talbot v Talbot [1967]
111 SJ 213, where a marriage between two women was held to be void). Here it is important
not to confuse the newly-created civil partnership which is discussed in Chapter 3. This is
a different type of relationship between people of the same sex who have registered their
commitment to each other. It has many similarities with marriage but it is not marriage!
Marriages between transsexuals those who have had sex reassignment therapy and
persons who, following the transsexuals reassignment, are now of his or her opposite sex
have historically not been valid marriages. There have been recent legislative changes here
and so long as certain formalities, which involves the recognition of the new gender by an
appointed panel under the GRA 2004, are met then these marriages may now be valid.
Transsexualcouples
Until 2004 transsexuals were regarded as persons of their reassigned sex for many legal
purposes, including national insurance and passports. For the purposes of marriage laws or
any other laws which are based on a persons sex rather than their gender, a persons sex
was fxed for all time at birth and the only relevant tests of sexual identity were biological.
Thus, a person born with male genitalia and male chromosomes was a man.
The leading case on the capacity of transsexuals to marry was Corbett v Corbett [1971] P 83
where the respondent was born biologically a male. Experiencing psychological diffculties
as a male, he underwent a sex change operation and, being now known as April Ashley,
she went through a marriage with the petitioner, a male. Ormrod J held that the sex of a
party to a marriage was a matter to be determined in accordance with biological and not
psychological criteria. Ormrod J is suggesting that sex is determined by biology whereas
gender, and the perception of oneself, is determined by psychology and as he points out:
Marriage is a relationship which depends on sex and not on gender. On that basis the mar-
riage between the petitioner and April Ashley was void.
The decision in Corbett was based on the common law, under which the question was
whether the parties were a man and a woman. The MCA uses the terms male and
female and it may be possible to argue that these terms refer to a persons gender rather
than sex and that the issue of whether a person is male or female takes account of more
than biology. However, the analysis in Corbett was applied in the case of R v Tan and Greaves
[1983] QB 1053 where the Court of Appeal concluded that a male-to-female transsexual
was a man for the purposes of the offence of living off the earnings of prostitution. There
is at least one reported case of a decree of nullity in respect of a marriage to a transsexual
(Family Law [1990] 455).
That Corbett remains authoritative is supported by two decisions of the European Court of
Human Rights. The frst of these was Rees v United Kingdom [1987] 2 FLR 111 which ruled that
the failure of English law to recognise the right of transsexuals to marry did not constitute
a violation of the right to marry guaranteed by Article 12 of the European Convention on
Human Rights. This was confrmed in 1990 in Cossey v United Kingdom [1991] 2 FLR 492,
although such a claim has been successful in the context of French law (see B v France [1992]
Fam Law 491).
These principles were further applied in Sheffeld and Horsham v UK [1998] 2 FLR 928.
However, also see X, Y & Z v UK [1997] 2 FLR 892. Here the European Court held that a refusal
to allow a child born to a transsexual mans partner to have the fathers name was a
breach of Article 8, but that there was no breach in English law in denying him parental
rights (parental responsibility).
In all of the UK cases, however, the court stressed the need for member states to keep their
law under review, suggesting a general relaxation in attitudes towards transsexuals.
r~cr zz UNivrrsi:v or LoNooN Ex:rrN~i Svs:ru
In light of this review there were a number of cases looking at the status of Corbett. See
W v W [2001] 1 FLR 324 and Bellinger v Bellinger [2001] 2 FLR 1048. Although in Bellinger the
House of Lords followed the position in Corbett they did declare, under s.4 HRA 1998, that
s.11(c) MCA was incompatible with Articles 8 and 12 of the European Convention on Human
Rights, in accordance with s.4 Human Rights Act 1998. They felt it was up to Parliament to
change the law. As a consequence of Bellinger, and also Goodwin v UK (2002) 35 EHRR 18 and
I v UK [2002] 2 FLR 518, the government introduced the Gender Recognition Bill. This Bill was
controversial in that it furthered the rights of transsexuals to be recognised and some felt
this was a development too far! The Gender Recognition Act 2004 (GRA) allows someone to
apply for a Gender Recognition Certifcate so that their legal sex becomes their acquired
gender. This means that the individual can be legally recognised as having the gender
that they wish to have. Section 2(1) GRA outlines the criteria for a person to meet. Note
that transsexual surgery is not necessary to acquire a gender recognition certifcate but is
clearly evidence to support a claim that the individual wishes to live in their chosen sex.
Polygamousmarriages
An actual or potentially polygamous marriage entered into after 31 July 1971 is void if either
party to the marriage was at the time domiciled in England and Wales. This topic is outside
the scope of the Family law syllabus.
Summary
The grounds for a void marriage are set out in s.11 MCA. If the parties have married within
the prohibited degrees of relationship or either party is under 16 the marriage will be
void. If there are defective formalities or one of the parties is already married this will also
void the marriage. For the marriage to be valid the parties must be respectively male and
female, which until recently had signifcant consequences for transsexual couples. Finally, a
marriage will be void if polygamous.
F~uiiv i~w 2 M~rri~cr ~No civii r~r:Nrrsnirs r~cr z_
2.3 Voidablemarriages
The grounds upon which a voidable marriage may be annulled are set out in s.12 of the MCA.
2.3.1 Incapacitytoconsummatethemarriage
A marriage is voidable if it has not been consummated owing to the incapacity of either
party to consummate it. This ground is available to either party to the marriage and a person
may petition on the grounds of his or her own incapacity. Consummation requires inter-
course that is ordinary and complete, rather than partial and imperfect (Dr Lushington,
in D v A [1845] 1 Rob Ecl 279 at 299). Compare the defnition of adultery and the criminal law
of rape, where any penetration of the sexual organ suffces. Note that sterility, as opposed
to impotence, is not a ground for annulment. Consummation will be held to have occurred
even though contraceptives have been used throughout the marriage. See Baxter v Baxter
[1948] AC 274.
Activity 2.4
What is the difference between the defnitions of adultery, rape and consummation?
No feedback provided.
The incapacity may be physiologically or psychologically based, but it must be permanent or
incurable. Physiological incapacity will be considered incurable if the respondent refuses to
undergo any dangerous remedial operation. It will not be regarded as incurable, however, if
the condition could be resolved by a straightforward, risk-free operation. See S v S [1963] P 37.
Psychological incapacity requires invincible repugnance towards the other spouse and
will not be established where there is mere dislike or a rational decision not to permit
intercourse. See Singh v Singh [1971] P 226.
2.3.2 Wilfulrefusaltoconsummatethemarriage
A marriage is voidable if it has not been consummated owing to the wilful refusal of the
respondent to consummate it. This ground is the only ground for annulment directed to
events which have occurred after the marriage. It is not open to a petitioner to seek a nul-
lity decree on the ground of their own refusal.
The ground requires a settled and defnite decision come to without just excuse. See
Horton v Horton [1947] 2 All ER 871.
Such a decision can be found to exist even where the parties have not had the opportunity
of consummating the marriage. For example, in Ford v Ford [1987] Fam Law 232 the marriage
had taken place while the husband was serving a sentence of fve years imprisonment.
When the wife visited the husband, they were left alone for periods of up to two hours,
during which time it was the practice of prisoners though against prison rules to have
sexual intercourse, but the husband refused. Further, he showed no interest in living with
the wife and, when granted a home visit, he insisted she take him to the home of a former
girlfriend. The wife was granted a decree of nullity on the basis of his wilful refusal, such
arising not out of his refusal to have sexual intercourse, which would have been in breach
of prison rules, but out of his general behaviour which indicated that he had no intention
of pursuing married life with the wife at any point.
If a party can show just excuse for refusal to consummate, the ground will not be made
out. In practice two distinct types of just excuse have been considered by the courts.
1 Religious reasons
If the parties have agreed that a civil marriage shall be followed by a religious ceremony, it
is a just excuse for refusing to consummate the marriage that the religious ceremony has
not taken place.
In Kaur v Singh [1972] 1 All ER 292 the parties were Sikhs who went through an arranged mar-
riage at a Register Offce. The husband refused to arrange the religious ceremony, which he
was bound to do by Sikh custom. The Court of Appeal held that the wife was entitled to a
decree of nullity on the grounds of his wilful refusal to consummate the marriage.
r~cr zq UNivrrsi:v or LoNooN Ex:rrN~i Svs:ru
It has been held, further, that if a party is prepared to arrange a religious ceremony, but the
other party refuses to proceed and insists that the ceremony be postponed, the refusal,
if suffciently defnite and uncompromising, will be held to constitute wilful refusal to
consummate. See: A v J [1989] 1 FLR 110.
2 By agreement
The second instance in which just excuse has been established is where there is an agree-
ment between the parties not to consummate their marriage. In principle, such an agree-
ment is void as being contrary to public policy. See Brodie v Brodie [1917] P 271.
Where, however, an elderly couple has entered into a companionate marriage, then one
party insists on intercourse after the wedding, proof of the agreement will bar the peti-
tioner from claiming wilful refusal to consummate. See Morgan v Morgan [1959] P 92 and
Scott v Scott [1959] P 103.
2.3.3 Lackofconsent
A marriage is voidable if either party did not validly consent to it, whether in consequence
of duress, mistake, unsoundness of mind or otherwise.
Duress
If consent to marriage is obtained by force or duress, the marriage is voidable at the
request of the threatened party.
In order to make out this ground, there must be fear that overrides a partys true intent.
This is the single most important aspect of duress and it underlies several of the following
points.
It is unclear whether the fear must be reasonably entertained. In Scott v Sebright [1886]
12 PD 31 a subjective approach was favoured by the court. There the petitioner had married
the respondent because she had been told by him that this was the only way she could
avoid bankruptcy. She was granted a decree. Butt J concluded that the crucial issue was
whether she was actually in fear, not whether it was reasonably entertained. This can be
contrasted with Buckland v Buckland [1968] P 296 where Scarman J suggested that fear over-
riding consent had to be objectively entertained.
Current judicial authority favours the subjective view, the Court of Appeal suggesting in
Hirani v Hirani [1982] 4 FLR 232 that the question is whether the threats or pressure are such
as to destroy the reality of the consent and to overbear the will of the individual.
A related issue is whether an immediate danger to life, limb or liberty is a prerequisite to a
successful petition. This requirement was suggested by Simon P in Szechter v Szechter [1971]
P 286. In Singh v Singh [1971] P 226 a petition was refused where the petitioner went through
a religious ceremony out of obedience to her parents wishes and in deference to her Sikh
religious faith. See also Singh v Kaur [1981] 11 Fam Law 152.
However, in Hirani v Hirani, on facts similar to those considered in Singh v Singh, the Court of
Appeal accepted that parental pressure could amount to duress, and Ormrod LJ suggested
that an immediate danger to life, limb or liberty was simply of evidential value in demon-
strating that the petitioners will had been overborne by fear.
The Scottish Court of Session have annulled two arranged marriages on the basis of duress
(see Mahmood v Mahmood [1993] SLT 589 and Mahmud v Mahmud [1994] SLT 599). In Mahmud
the court held that sustained pressure from the family to marry, including allegations that
the petitioners obduracy was responsible for his fathers suffering a stroke, was suffcient
to invalidate consent.
The cases agree that the fear must arise from external circumstances, but not necessarily
from the acts of the other party. So in Buckland v Buckland the pressure imposed by the
Maltese police, rather than the respondent, led to the decree being granted. Similarly, in
Szechter v Szechter, the pressure was imposed by a combination of external factors.
It has been argued that fear will only override consent to marriage if it has been unjustly
imposed, a suggestion derived from the judgment of Scarman J in Buckland v Buckland in
which he asserts that it would have been legitimate to coerce the petitioner into marriage
if in fact he had been guilty of the criminal charge of defling the respondent.
F~uiiv i~w 2 M~rri~cr ~No civii r~r:Nrrsnirs r~cr z
The notion of justly imposed fear has not been explored in later cases on duress and may
be inconsistent with the basic question of whether the petitioners will has, in fact, been
overridden.
Activity 2.5
Should the courts formulate a more settled defnition of what amounts to duress? What
advantages or disadvantages would fow from such a formulation?
2.3.4 Theproblemofforcedmarriage
Historically there have always been examples of family pressure being placed on people to
marry those whom the family would approve. It has also long been the case that some fami-
lies within some cultures are particularly keen to assist their children in the fnding of suit-
able spouses and have arranged marriages on this basis. Arranged marriages are perfectly
legal in the UK because the individuals have been assisted with fnding a spouse but have in
no way been physically forced to marry that individual. It is important that students do not
confuse an arranged marriage with a forced one for these purposes. Indeed Munby J draws a
clear distinction in Sheffeld City Council v E and Another, The Times, 20 January 2005, when the
wisdom of getting married is distinguished from the capacity to marry.
There has been, in recent years, a growing concern at the incidence of forced marriage and
this is often linked to a persons (usually a females) capacity to refuse. In Re SA (Vulnerable
Adult with Capacity: Marriage) [2006] 1 FLR 867 the possible removal of a vulnerable adult
from England for the purposes of marriage was considered by the court. Here an 18-year-
old girl was deaf and unable to speak. She was able to use British sign language and was
able to lip read English on a limited basis. Her parents could not use British sign language
and the girl was unable to lip read Punjabi. The local authority assessed the girl had an
intellectual level of 13-14 and a reading age of 7-8. The local authority were concerned that
the girl may be taken to Pakistan to be married. Expert evidence noted that the daughter
had the capacity to marry and wanted to marry an English speaking man and to live in
England. She did not understand the consequences of immigration or the implications of
a specifc marriage contract to a specifc individual. The court held she was not to be re-
moved from the jurisdiction without her consent, which was to be obtained only following
a full explanation of all issues using British sign language.
Also in M v B, A and S (By the Offcial Solicitor) [2006] 1 FLR 117 S was 23 years old with severe
learning disabilities. Her father wished for her to undertake an arranged marriage in Pakistan.
Medical evidence suggested that she had a limited level of comprehension and was unable to
make an informed decision as to whether she should undertake this marriage. Consequently
Sumner J said that S did not understand the nature of the marriage contract. In addition she
did not understand the duties and responsibilities that are attached to marriage. He used the
useful summary by Munby J in Sheffeld City Council v E and S [2005] 1 FLR 965 that:
Marriage, whether civil or religious, is a contract, formally entered into. It confers in the
parties the status of husband and wife, the essence of the contract being an agreement
between a man and a woman to live together, and to love one another as husband and
wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obli-
gations, typically involving the sharing of a common home and a common domestic life
and the right to enjoy each others comfort and assistance.
In light of continued concern about the incidence of forced marriages in September 2005
the Home Offce and the Foreign and Commonwealth Offce published a consultation paper
with a view to discussing the legal issues surrounding forced marriages, including a discus-
sion of potential criminal offences committed by the perpetrators. See Forced Marriage: A
Wrong Not a Right, September 2005, www.fco.gov.uk. The abomination of forced marriage
was further discussed in NS v MI [2006] EWHC 1646 (Fam).
The result has been the Forced Marriage (Civil Protection) Act 2007 (which received Royal
Assent on 26 July 2007). It makes provision for protecting individuals against being forced
to enter into marriage without their free and full consent. It also protects individuals who
have been forced to enter into a marriage without such consent. The background to the
Act was interesting as initially it was hoped that offenders would be dealt with by criminal
prosecution rather than civil restriction.
r~cr z6 UNivrrsi:v or LoNooN Ex:rrN~i Svs:ru
Mistake
Mistake will vitiate consent to a marriage in two situations:
1 Where there is a mistake as to the person as opposed to his or her attributes. This was
upheld in the Australian case of C and D [1979] FLC 90636 where a woman who married a
hermaphrodite was granted an annulment on the ground that she had made a mistake of
identity because she believed she was marrying a man. It will not be made out if, for exam-
ple, a person marries an individual believing him or her to be rich and he or she turns out
to be a pauper. See C v C [1942] NZLR 356 and also Militante v Ogunwomoju [1993] 2 FCR 355 in
which the court annulled the marriage where the petitioner believed the respondent to be
Richard Ogunwomoju, whereas in fact he was Anthony Osimen, an illegal immigrant.
2 Consent will also be vitiated if there is a mistake as to the nature of the ceremony. If one
party goes through a marriage ceremony believing it to be a betrothal (engagement to
marry) (see Valier v Valier [1925] 133 LT 830) or a religious conversion (see Mehta v Mehta
[1945] 2 All ER 690), the marriage will be voidable. However, if a person is mistaken as to the
legal consequences of marriage, the marriage will be valid. See Way v Way [1950] P71 and
Messina v Smith [1971] P 322.
Unsoundnessofmind
Mental illness will only invalidate a marriage under s.12 MCA if either spouse, at the time of
the ceremony, was incapable of understanding the nature of marriage and the duties and
responsibilities it creates. See Singleton LJ In the Estate of Park [1954] P 112.
Few petitions are brought on this ground and a petition alleging insanity is more likely to
be based on the more broadly based s.12(d) MCA 1973 ground of mental disorder, discussed
below.
Orotherwise
The words or otherwise in s.12(c) MCA have not received signifcant judicial attention,
although consent given under the infuence of alcohol or drugs are examples sometimes
given of situations that might be covered by these words. See Sullivan v Sullivan [1812] 2 Hag
Con 238 at p.246.
2.3.5 Othernullifyingfactors
Mentaldisorder
A decree of nullity may be granted if:
at the time of the marriage either party, though capable of giving a valid consent, was
suffering (whether continuously or intermittently) from mental disorder within the mean-
ing of the Mental Health Act 1983 of such a kind or to such an extent as to be unftted for
marriage. (MCA s.12(d))
This ground, broader in scope than s.12(c), enables a petition to be brought, even though a
party was able to give a valid consent to marriage, if mental disorder rendered him or her
unft for marriage. A petitioner may rely on his or her own mental disorder on this ground.
The law does have to balance its desire to protect vulnerable people from being forced to
marry when they do not have the capacity to resist and opposing those with a minor learn-
ing disability from being prevented from marrying.
Venerealdisease
A decree may be granted if at the time of the marriage the respondent was suffering from
venereal disease in a communicable form. It is unclear whether HIV is a venereal disease
for this purpose.
Pregnancyper alium

A decree may be granted if at the time of the marriage the respondent was pregnant by
some person other than the petitioner.
Activity 2.6
What would be the status of a sham marriage?

Pregnancy by another.

Pregnancy by another.
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2.3.6 Barswherethemarriageisvoidable
Where the marriage is voidable, the petition may fail if one of the bars contained in s.13
MCA is established. Note that there are no bars where the marriage is void.
Approbation
Section 13(1) provides that the court shall not grant a decree of nullity on the ground that a
marriage is voidable if the respondent satisfes the court:
1 that the petitioner, with knowledge that it was open to him to have the marriage
avoided, so conducted himself in relation to the respondent as to lead the respondent
reasonably to believe that he would not seek to do so, and
2 that it would be unjust to the respondent to grant the decree.
The respondent must thus establish that the petitioner conducted himself or herself in
some way as to result in the respondents belief that he or she would stand by the marriage
and that, at the time of this conduct, he or she knew that he or she could have the marriage
annulled. In addition, it must be established that some injustice would be caused to the
respondent were the marriage to be annulled.
Cases indicate that the bar is rarely applied, as it is diffcult to establish injustice now that
fnancial provision is available on a decree of nullity. See D v D [1979] Fam 70.
Further, the bar is not one of public policy, but concerns the conduct of the parties towards
one another. Hence in D v D where the marriage had not been consummated because the
wife refused to undergo an operation which would have cured a physical impediment to
intercourse and the husband, although aware that he had a remedy in nullity, agreed with
his wife that they should adopt two children, the bar was not applied. Although a previous
case (see W v W [1952] P 152) had held that adoption of children within an unconsum-
mated marriage could amount to public policy reasons for approbation, in D v D, Dunn J
held that such public policy reasoning could not be applied after the enactment of what
is now s.13(1). It has been suggested (Cretney et al., pp.6465) that the bar may operate in
companionate marriages.
Time
Where proceedings are brought under s.12(c) (lack of consent), s.12(d) (mental disorder),
s.12(e) (venereal disease) and s.12(f) (pregnancy per alium), it is an absolute bar if proceed-
ings are not brought within three years of the marriage (see s.13(2)). However, the court
may give leave for the institution of proceedings after the expiration of three years if the
petitioner has suffered from mental disorder at some time during the three year period,
and it is in all the circumstances just to do so (see s.13(4)).
You are advised to look closely at the dates of occurrence of relevant events when answer-
ing examination problems on nullity.
Knowledgeofdefect
A petition founded on s.12(e) (venereal disease) or s.12(f) (pregnancy per alium) will fail un-
less the petitioner can satisfy the court that, at the time of marriage, he or she was ignorant
of the facts alleged (see s.13(3)). The bar will not operate unless the petitioner is aware of
all the material facts. The fact that the husband knows that his wife is pregnant at the time
of the marriage ceremony is not suffcient; he must also know that she was pregnant by
another man.
Self-assessment questions
1 Defne (a) a void marriage and (b) a voidable marriage.
2 What did the report No Just Cause deal with?
3 Non-consummation can make a marriage voidable. In what circumstances would non-
consummation not do so?
4 In what circumstances can mental illness invalidate a marriage?
5 How would a forced marriage differ from an arranged marriage?
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Activity 2.7
Look at the facts of a marriage and decide whether a decree of nullity would be granted
on the basis of the marriage being void or voidable.
Fact Void? Voidable?
a Peter marries Shelley, having already married Lucy.
b Lofty marries Michelle despite the fact that she is
pregnant by Dennis.
c Hayley marries Roy despite the fact she was born male
and has had gender reassignment surgery.
d Salma, a devout Muslim, marries Adi because her
parents suggest that they will kill her if she refuses.
Summary
To annul a marriage under s.12 MCA the petitioner will have to show that, although the mar-
riage took place, a particular factor makes the marriage voidable. The factors to be relied
upon include one partys incapacity or wilful refusal to consummate the marriage. Where
there is a lack of consent be it by duress, mistake, unsoundness of mind or otherwise
this may also make the marriage voidable. A nullity decree may also be sought if at the
time of the marriage one of the parties was suffering from a mental disorder, the respond-
ent was suffering from a venereal disease or was pregnant by another. There exist some
bars to a nullity decree on the grounds of it being voidable. These include approbation,
time and knowledge of the defect.
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2.4 Effectsofanullitydecree
At one time the distinction between nullity and divorce was pursued to its logical conclu-
sion. A nullity decree, unlike a divorce decree, was based on the assumption that there had
never been a valid marriage. Thus any children of the relationship were illegitimate, neither
party was under an obligation to provide fnancial support for the other and any property
transactions undertaken on the faith that the marriage was valid had to be retrospectively
unscrambled. Over the last 30 years, statute has resolved many of these diffculties, so that
now the consequences of a nullity decree are almost identical to those of a divorce decree.
2.4.1 Statusofchildrenofvoidablemarriages
This means that children of voidable marriages are legitimate, because the marriage is
treated as valid up until it is annulled (see s.16 MCA). Children of void marriages shall be
treated as legitimate children of their parents if, at the time of the insemination result-
ing in birth (in cases of artifcial insemination) or at the time of the childs conception
(or at the time of marriage if later), both or either of the parties reasonably believed that
the marriage was valid. See Legitimacy Act 1976 s.1 as amended by Family Law Reform Act
1987 (FLRA) s.28. It is immaterial whether the belief that the marriage was valid is due to a
mistake of law. It is to be presumed, unless the contrary is shown, that one of the parties
reasonably believed at the relevant time that the marriage was valid. However, a child will
only be treated as legitimate under these provisions if the birth occurred after the void
marriage. See Re Spence [1990] 2 FLR 278.
2.4.2 Financialprovisions
It appeared for some time that a party to an annulled marriage had exactly the same enti-
tlement to fnancial provision from his or her partner as a party to a marriage terminated
by divorce (MCA ss.23, 24 as amended by the FLA 1996). See Whiston v Whiston [1995] Fam
198 in which a woman knowingly entered a bigamous marriage in 1973. On the granting of a
decree of nullity, the wife sought fnancial provision. On appeal from a lump sum order, the
Divisional Court held that the fact one party knew of the illegality of the marriage did not
bar claims for ancillary relief,

although in the circumstances of the case and because

of the severity of the wifes conduct, the award would be reduced from 25,000 to
20,000. If a void or voidable marriage is terminated by the death of one of the partners
the survivor may apply for fnancial provision from the estate of the deceased partner
(Inheritance (Provision for Family and Dependants) Act 1975, ss.1(1), 25(4)).
However, in the same case the Court of Appeal held that public policy demanded the denial
of fnancial provision to the wife in the light of her criminal conduct in bigamously marrying.
This uncertainty of position was clarifed in Rampal v Rampal (No2) [2001] 2 FLR 1179.
It remains the case that a void marriage is deemed to be no marriage at all and that
transactions, for example property transactions, entered into on the assumption of the
marriages validity will be set aside. Where voidable marriages are concerned, however,
s.16 MCA provides that:
a decree of nullity... in respect of a voidable marriage shall operate to annul the marriage
only as respects any time after the decree has been made absolute, and the marriage shall,
notwithstanding the decree, be treated as if it had existed up to that time.
Ward v Secretary of State for Social Services [1990] 1 FLR 119 illustrates the operation of s.16.
The applicant was entitled to an army widows pension. Under the terms of its award the
pension ceased to be payable if she remarried. In 1986 she went through a ceremony of
marriage with a man whom she discovered after the marriage was a manic-depressive. The
marriage was never consummated and the applicant obtained an annulment. She applied
to have her widows pension restored, but it was held that the annulled marriage consti-
tuted a marriage for the purposes of the rule that a widows pension is terminated upon
remarriage. The effect of s.16 was to treat that marriage as a valid marriage for all purposes
up to the decree of annulment.
See also Re Roberts [1978] 3 All ER 225, where a voidable marriage revoked a prior will.
Go to your study pack and
read Marriage eligibility by
Stephen Cretney. This will
help you to consider the
historical development of
the current law of nullity and
its contemporary relevance.
Go to your study pack and
read Marriage eligibility by
Stephen Cretney. This will
help you to consider the
historical development of
the current law of nullity and
its contemporary relevance.

Ancillary relief is the term given
to the powers of the Court to
make orders related to divorce or
other matrimonial proceedings.

Ancillary relief is the term given
to the powers of the Court to
make orders related to divorce or
other matrimonial proceedings.
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2.5 Civilpartnerships
Given that sexual relations between men had been outlawed in the UK until 1967 it is
astonishing to think that it has only taken 37 years for the law to formally recognise the
relationships between same-sex couples in the way that opposite-sex couples are able
to be recognised via marriage. For those generations of same-sex couples who suffered
signifcant discrimination as a consequence, these reforms could not have come too soon.
Due to extensive pressure from the gay community as a whole, and the governments com-
mitment to equality and social justice, the law was fnally changed in 2004.
The Civil Partnership Act 2004 (CPA) has had a far-reaching legal effect. It creates a new
legal status of civil registered partner (s.1 CPA) and brings English law into line with that
of The Netherlands, Belgium, parts of Canada, Denmark, Sweden, Portugal, Spain and
Germany. It grants various rights and responsibilities to those homosexual partnerships
which have been registered. Like marriage, it has certain formalities which need to be in
place.
In many ways the formation of the civil partnership is broadly similar in process to that of
the civil wedding. The registration cannot take place in a place of religious worship and no
religious service is permitted. A particular difference between a civil marriage and a civil
partnership is the form of words used: for a civil partnership, unlike a civil wedding, no
particular form of words need be used. Section 2(1) of the CPA only requires that both civil
partners have signed the civil partnership document. Once this has happened the partner-
ship has been registered. It is not as restrictive as a civil wedding in this way and this is to
recognise the fact that it is NOT a marriage.
For the purposes of nullity it is not surprising that much of the substance of the existing
law applies to civil partners. The form is, however, different and can be found in ss.49s.50
CPA. Here the same grounds of prohibited degrees, age limits, defective formalities, already
married or in a civil partnership and that the parties are of the same sex apply (remember
only people of the same sex can register a civil partnership) and will result in the partner-
ship being void. The grounds for the partnership being voidable are a lack of valid consent
(due to drunkenness or mistake), mental disorder or pregnancy by a third party. The differ-
ences arise in the nullity provisions due to non-consummation and venereal disease. This
logically means that no civil partnership has to be consummated.
Following the annulment of a civil partnership the same rules concerning fnancial provi-
sion apply as for the annulment of a marriage.
Useful further reading
Baker, M. Nullity proceedings in the twenty-frst century: a case for reform? (2002) NLJ 942.
Barton, C. White Paper Weddings the beginnings, muddles and ends of wedlock
(2002) Fam Law 431.
Bradney, A. Duress and arranged marriages (1983) 46 MLR 499.
Bradney, A. Developing human rights? The Lords and transsexual marriages (2003)
Fam Law 585.
Brunner, K. Nullity in unconsummated marriages (2001) Fam Law 837.
Duckworth, P. What is a family? (2002) Fam Law 367.
Gaffney-Rhys, R. M v B, A and S(By the Offcial Solicitor) protecting vulnerable adults
from being forced into marriage [2006] CFLQ, 295.
McCafferty, C. Gays, transsexuals and the right to marry (2002) Fam Law 362.
Poulter, S. The defnition of marriage in English law (1979) 42 MLR 409.
Probert, R. When are we married? Void, non-existent and presumed marriages LS, Vol.
22, No. 3 (September 2003).
Probert, R. How would Corbett v Corbett be decided today? [2005] Fam Law 382.

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Sample examination questions
Question 1 The law of nullity should be abolished as it serves no purpose not achieved by
divorce. Discuss.
Question 2 Alice and Bertram, aged 16 and 19 respectively, decided in 2008 that they
wished to marry. Alices parents are opposed to the idea and Alice knows that they will
not give their consent. As a result, Alice and Bertram travelled several hundred miles to a
town in which the Peace and the Purity Church is situated. The Peace and the Purity Church
is located on the tenth foor of an offce block. The self-styled head of the church agreed
to marry Alice and Bertram at 8.00 pm. The church requires no formalities, but uses the
prescribed words of the marriage ceremony and issues marriage certifcates to those for
whom it performs marriage ceremonies.
Alices parents have just learned of their daughters marriage and wish to be advised as to
its legality. Advise Alices parents.
Question 3 Annie and her family all belong to a small religious group known as the
Minitheists. One of the tenets of the religion is that a Minitheist must marry another
Minitheist. Annie has been told by her parents that she must marry Bertie, a promising
Minitheist, widely regarded as a future high priest of the religion. Annie, however, wanted
to marry Cuthbert, who was not a Minitheist. In February 2007 Annies father announced
that he would cut her out of his will unless she went through a civil ceremony on 1 March
2007. After the ceremony Annie and Bertie agreed not to have sexual intercourse for the
time being. There were two reasons for this agreement. First, both parties considered
that a civil ceremony was not respectable and that Bertie ought to arrange a Minitheist
religious ceremony. Secondly, Annie wanted time to overcome a psychological abhorrence
to Bertie. However, Annie declared her intention of making the best of the marriage.
Unknown to Bertie, Annie has been having an affair with Cuthbert since July 2007. In
January 2008 Bertie (who has still not arranged the religious ceremony) discovered the
existence of this affair. Divorce is forbidden to Minitheists.
Advise Annie, who wants to have the marriage annulled.
Question 4 Brian and Maurice registered their civil partnership in April 2008. They signed
the register in the local church and sang The Lord is my Shepherd as a celebration of their
union. Brian is married to Cara and Maurice was living with Victor prior to the registra-
tion of the partnership. Brian and Maurice had always had an active sex life prior to the
registration but since the partnership was registered Brian has refused to consummate
the partnership believing that Maurice has a venereal disease. Brian also begins to doubt
Maurices commitment to the partnership and contacts Maurices mother to discuss her
sons personality in a bid to understand him further. Maurices mother disowned Maurice
when he had surgery to become a man, having previously been Monica. She missed her
daughter and refused to acknowledge Maurice as her son.
Advise Brian as to the validity of his civil partnership.
Adviceonansweringthequestions
Question 1 This essay question demands a good knowledge of the law of nullity so you
must know the grounds for a void and a voidable marriage. The grounds for a void marriage
include prohibited degrees of relationship, being under 16, defective formalities, bigamy,
same-sex and polygamy (which is outside the syllabus). The grounds for voidable marriages
are non-consummation, lack of consent, mental disorder, venereal disease or pregnancy
by another. Remember to structure your answer by introducing the law and document-
ing the fact that the petitions for nullity are very few (only 657 petitions in 2001). This may
add to calls for its abolition. But does it serve a purpose? It does make clear the essential
requirements of a legal marriage, which distinguish the relationship from other types of
relationships. Does it serve a purpose now? This would lead into an interesting discussion
of the justifcations for the grounds. Prohibited degrees of relationship is not as justifed
as it once was , in light of recent genetic evidence. It may be justifed on social and public
policy grounds but not on medical grounds; same-sex marriage also needs to be reconsid-
ered in light of the growth in the numbers of transsexuals. For voidable marriages fruitful
areas of debate would include non-consummation, when divorce would allow for this
under s.1(2)(b) MCA, and duress in a multi-ethnic world where different cultural traditions
coexist. If divorce can deal with these elements then why should the law of nullity not be
abolished?
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It has its roots in the Christian faith where divorce was forbidden; some people are still very
against divorce and are pleased that nullity is a legal option. Some have suggested that the
void category should remain, arguing that there is no real need for a decree because the
marriage never existed, but that the voidable category should go. The Law Commission
recommended the retention of voidable marriage on religious grounds, but Cretney et al.
have argued that voidable should be abolished and the church, for which the law appears
to exist, should govern its status. It is arguably outdated and unnecessary today.
Question 2 This problem question requires a good grasp of how s.11 MCA works and the
case law which accompanies it. The issues you need to consider include the age of Alice
at the time of the wedding, the status of parental consent and the signifcance if it is not
obtained. What is the status of the Peace and the Purity Church? Is it licensed under the
Marriage Act 1994? It is on the tenth foor of an offce block, so this is unlikely. Even if it
was licensed, should the wedding ceremony have been performed at 8.00 pm? It is not
a Jewish or Quaker wedding. The church requires no formalities but is this in accordance
with English law? Are there open doors? And are there witnesses to the wedding? The pre-
scribed words of the marriage ceremony and the issuing of a marriage certifcate will not
validate the marriage but may impact on whether Alice and Bertram knew of the defect. Do
the parties know they are contracting to a marriage with knowledge of the defect? See R v
Bham [1966], Gereis v Yacoub [1997] and CAO v Bath [2000] to assist you in your advice to the
parents as to the legality of the union.
Question 3 This problem question requires a good grasp of how s.12 MCA works and the
case law which accompanies it. The issues for you to look at include the extent of Annies
parents insistence that Annie marry Bertie. Would the threat to cut her out of her fathers
will amount to duress? Look at Hirani v Hirani [1982], Szechter v Szechter [1971] and Singh
v Singh [1971]. If you go through a religious ceremony out of obedience to your parents
wishes and in deference to your religious faith, then the petition is likely to be refused. It is
important to ensure that this is not a forced marriage (see Forced Marriage Act 2007).
Then you must consider the status of a wilful refusal to consummate a marriage.
Remember it is Annie and Bertie who agree not to have sexual intercourse. In the frst
instance Annie would have to show that Berties wilful refusal to consummate the wedding
is her reason for petitioning the court. This is unlikely to succeed, because while there is
evidence that she has just excuse for her refusal to consummate, whether it be for religious
reasons or by agreement, the statute makes it clear that the respondent must have wilfully
refused to consummate. Annie is the petitioner and Bertie is the respondent and he does
not want the marriage annulled. As Bertie still has not arranged the religious ceremony, she
could argue that this is wilful refusal to consummate. This may be successful under Kaur v
Singh [1972]. Alternatively, Annie is better off petitioning on the basis that she is incapable
of consummating the marriage. See Baxter v Baxter [1948]. Under this ground a marriage
will be voidable if it has not been consummated owing to the incapacity of either party.
Annie could argue that her incapacity is psychological, as in Singh v Singh [1971], since she
has a psychological abhorrence to Bertie. This could amount to invincible repugnance
under G v G [1924]. The fact that she can have sexual intercourse with other men will not
deny her under this ground. Bertie could respond to the petition under s.13(1) and say there
is a bar under approbation. As Annie said she was going to make the best of her marriage
then Bertie may suggest Annie conducted herself in relation to Bertie so as to lead him to
believe that she would not try to annul the marriage. Of course, divorce is forbidden to this
religious group but should Bertie want grounds, then Annies adultery will prove useful.
Question 4 It is important to realise that, given the relatively recent registration of civil
partnerships (it was not legally possible until December 2005) in this jurisdiction, there is
very little case law on this subject and so you will have to ensure you have suffcient grasp
of the statutory provisions.
F~uiiv i~w 2 M~rri~cr ~No civii r~r:Nrrsnirs r~cr __
Should Brian wish to seek an annulment of his civil partnership he must utilise ss.4950
CPA. Under s.49(iii) it could be argued that the registration of the partnership failed to
comply with the requisite formalities because a church is a place of worship and in a civil
ceremony you are not permitted to sing religious songs (The Lord is my shepherd is a
popular hymn). There is also a question as to whether Brian and Maurice were free to
register their partnership in the frst place? Brian lived with Victor but this places no bar
to registration. However under s.49(iv) it would appear that Maurice was already married
to Cara and so he was not legally allowed to register a civil partnership. The fact that there
has been no consummation of the partnership is irrelevant for these purposes as this is
not a ground, unlike in the MCA, for seeking an annulment. The fnal concern which will
invalidate both Brians partnership with Maurice and indeed his marriage to Cara was that
Maurice was born Monica and there is no suggestion that he has obtained any form of
gender recognition certifcate under the GRA. This means Maurice (being legally a woman)
could NOT marry Cara (Corbett v Corbett) and without any gender recognition certifcate
Maurice is unable to register a civil partnership with Brian because the parties are not of
the same sex for these purposes (see s.49(v) CPA).
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Refectandreview
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfed that I have suffcient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise frst = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
diffcult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise frst
Need to
study again
I can explain the relevant distinctions between void
and voidable marriages.

I can list and give the principal details of the law

relating to each of the particular grounds for
invalidating a marriage.

I can describe the powers of the court in relation to

property distribution and fnancial provision and the
rules relating to the status of children born into void
or voidable marriages.

I can acknowledge the similarities and differences

between the formation of a marriage and a civil
partnership.

If you ticked need to revise frst, which sections of the chapter are you going to revise?
Must
revise
Revision
done
2.1 The distinction between void and voidable marriages
2.2 The grounds for a void marriage
2.3 Voidable marriages
2.4 Effects of a nullity decree
2.5 Civil partnerships
3 Divorceanddissolution
Contents
Introduction 36
31 ThedivorceprocessundertheMCA1973 38
32 Thebackgroundtothemodernlaw 39
33 ThedivorcefactsundertheMCA197341
34 Conciliationandreconciliation 47
35 Dissolutionofcivilpartnerships 51
Refectandreview 53
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Introduction
This chapter analyses the development of divorce law, the modern ground of irretriev-
able breakdown of marriage and the fve facts which the law recognises as proving the
existence of irretrievable breakdown. A petition for divorce will often be combined with
applications for fnancial provision for the spouse and the children and with orders relating
to the children of the marriage. These matters so often more crucial than the award of the
divorce decree itself will be discussed in later chapters.
Although the greater part of this chapter will be taken up with a discussion of the facts of
divorce and judicial interpretation of these facts, it should be remembered that nowadays
very few petitions are defended (less than three per cent of all divorces) and that conse-
quently since the 1970s few divorce cases have been reported. Further, the law of di-
vorce has been dominated by the special procedure, introduced in 1973, which dispenses
with a court hearing in all undefended cases.
Dissatisfaction with the law of divorce culminated in a number of proposals for reform,
which are discussed below. The Family Law Act 1996, after a protracted and contentious
passage through Parliament, fnally received the Royal Assent in July 1996. The major provi-
sions of this Act are discussed below.
Despite this, the law on divorce remains in a state of despondency. On 19 June 1999, the
Lord Chancellor announced that, in the light of the unsuccessful piloting of the new divorce
legislation in s.8 of the Family Law Act 1996 (as discussed below), the implementation of
the new divorce provisions was to be delayed. This delay continues! In order to understand
fully the movement for reform, and to evaluate the advantages and disadvantages of the
reforms, it remains necessary to study the current law and to appreciate its defects as well
as looking at what could have been. For this reason, much of this chapter is concerned with
an analysis of the law under the Matrimonial Causes Act 1973 (MCA). Despite signifcant
attempts at reform, this is the current law.
Like marriage, it is possible to end a civil partnership. Rather than an order for divorce this
is termed a dissolution order and is granted on the basis of much of the same criteria as the
divorce with one notable exception, which we will discuss later.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
explain the principles underlying the law of divorce, both under the MCA and the FLA
describe the grounds for divorce under the MCA and the relationship between the
grounds for divorce and the facts which raise the presumption of the ground
state the actual requirements of each fact: each fact comprises more than one element
and you should be able to discuss every aspect of each fact as revealed by the case law
discuss whether the issue of fault should remain part of the law of divorce and the
reasons for this
outline the perceived defects in the current law and the need for reform
discuss whether the suggestions for reform would have answered the criticisms levelled
at the current law
say whether the suggested law reform places too much control in the hands of the par-
ties to the divorce, as opposed to the court
give an opinion on whether the reformed law would have, in fact, made divorce easier
or more diffcult, and whether this is desirable
assess whether the reformed law would have encouraged or discouraged divorce
identify how a civil partnership can be dissolved and any apparent differences between
this law and the law of divorce.

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Essential reading
Herring, Chapter 3, pp.93-138.
Masson et al., Chapter 10, pp.277-316 and Chapter 11, pp.317-324.
Probert, Chapter 4, pp.5976.
Standley, Chapter 7, pp.135-158.
Useful further reading
Masson, S. Marriage, divorce and the courts [2002] Fam Law 900.
Day Sclater, S. and C. Piper (eds) Undercurrents of Divorce. (Aldershot: Ashgate 1999)
[ISBN 9781840147339].
Diduck, Chapter 3, pp. 4470.
Eekelaar, J. Family law keeping us on message [1999] CFLQ 387.
Eekelaar, J., M. Maclean and S. Beinart Family Lawyers: the divorce work of solicitors.
(Oxford: Hart Publishing, 2000) [ISBN 9781841131856].
Kay, Whose divorce is it anyway? the human rights aspect [2004] Fam Law 892.
Reece, H. Divorcing Responsibly. (Oxford: Hart, 2003) [ISBN 9781841132150].
Walker, J. [1991] Divorce Whose Fault? Is the Law Commission Getting it Right?
Fam Law 234.

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3.1 ThedivorceprocessundertheMCA1973
Although the Family law syllabus expressly states that a knowledge of divorce procedure is
not required, a knowledge of divorce is incomplete without some understanding of these
procedures.
The special procedure (which, as Ormrod LJ pointed out in Day v Day [1980] Fam 29, is the
ordinary procedure in the majority of cases) requires the petitioner to lodge a completed
standard form of petition, together with an affdavit verifying the truth of the answers
to a standard form questionnaire. These documents are then considered by a District
Judge (formerly called a Registrar) in private and, if the District Judge is satisfed that the
petitioner has suffciently proved the contents of the petition and is entitled to a decree,
he or she will make and fle a certifcate to that effect. The presence of the parties and their
representatives is unnecessary. There is no machinery for investigating the truth of the al-
legations unless there are circumstances which give rise to suspicion. District Judges have,
furthermore, been urged not to take an overly meticulous or overly technical approach.
See ex parte Byers [1985] FLR 695.
The decree is then pronounced in open court, either by a Circuit Judge or a District Judge.
A divorce petitioner must present the petition to the court, but this cannot be done until
the marriage has lasted for one year. The petition must allege that the marriage has broken
down irretrievably and the petitioner must satisfy the court of at least one of the fve facts
evidencing breakdown. This is vital. See from Butterworth [1997] 2 FLR 336 that if a petition
is defended, the judge still has an important role to play in applying the law and should not
grant a decree merely because the petitioner states that the marriage has broken down.
One of the fve facts must be proved before a decree can be granted.
If the petitioner proves such a fact then the court will grant the decree unless the respond-
ent satisfes the court that the marriage has not irretrievably broken down, or, in the case
of a petition based on the fve-year living apart fact, that the decree should be refused
because it would produce hardship (as discussed later in this chapter). Thereafter, matters
of fnancial provision and with respect to any children will be decided. In the frst instance,
a divorce decree will be a decree nisi

and the marriage will not be dissolved until the

court grants the decree absolute. In general, the petitioner applies for the decree absolute
six weeks after the decree nisi. The respondent may also apply, but it is up to the discretion
of the court whether the decree shall be granted. See Smith v Smith [1990] 1 FLR 438.
Until the decree absolute, the marriage remains in being. See Dackham v Dackham [1987]
2 FLR 358. However, once the decree is made absolute, the marriage is dissolved. See
Callaghan v Hanson-Fox [1991] 2 FLR 519.
The pervasiveness of the special procedure and the cost of litigation has meant that few
divorces are defended and, consequently, that few appeals reach the Court of Appeal.
Accordingly, many of the problems of statutory interpretation which have been exposed by
the extant case law do not, in practice, arise. Nevertheless, divorce procedure is frmly set
within the framework of substantive divorce law. However informal the process by which a
decree is obtained, one of the facts laid down in the MCA must be established.
Summary
Despite moves for reform, the current law on divorce is governed by the Matrimonial
Causes Act 1973. There exists a special procedure for divorce, which speeds up the process,
where the petitioner will lodge a completed standard form of petition with an affdavit
verifying the truth of the statements contained within the petition. You cannot petition
for divorce until one year has passed since the marriage. Once the petitioner proves that
the marriage has broken down irretrievably a decree nisi is granted. The marriage remains
in place until the decree absolute is granted, at least six weeks after the nisi is issued. The
marriage is then formally brought to an end.

Nisi (Latin) = unless, implying that

the decree will be made absolute
(after an interval) unless reason is
given why it should not be.

Nisi (Latin) = unless, implying that

the decree will be made absolute
(after an interval) unless reason is
given why it should not be.
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3.2 Thebackgroundtothemodernlaw
It is advisable for all students to have some knowledge of the history of the law of divorce
(see Masson et al., pp.26597). In brief, no judicial decree of divorce could be obtained
before the enactment of the Matrimonial Causes Act 1857. The ecclesiastical courts pos-
sessed the jurisdiction to grant decrees of divorce a mensa et thoro,

but this amounted to

no more than a decree of judicial separation and did not entitle the parties to marry again.
The only way to obtain a divorce which conferred the power to remarry was to procure a
private Act of Parliament. The frst such Act was the Duke of Norfolks Act in 1700; between
1700 and 1856, when judicial divorce superseded Parliamentary divorce, 317 private Acts
were obtained. They were expensive to procure and their passage was often accompanied
by much unwanted publicity. Very few wives, moreover, ever had private Acts of Parliament
passed in their favour.
The Matrimonial Causes Act 1857 set up a court that was empowered to grant judicial
decrees of divorce. From the beginning, divorce was based on the idea of matrimonial
fault and men and women were treated differently in the application of the matrimonial
fault doctrine to their relationships. Whereas a wifes adultery was suffcient to entitle her
husband to a decree, adultery by the husband was not by itself a ground of divorce for the
wife unless she could also prove some other misconduct on his part.
3.2.1 Divorcereform
In the twentieth century, formal equality was established in the application of the matri-
monial offence doctrine: the Matrimonial Causes Act 1923 provided that wives as well as
husbands could sue solely on the basis of their partners infdelity. The grounds for obtain-
ing a divorce were also extended; the Matrimonial Causes Act 1937 added the grounds of
cruelty, desertion in excess of three years and incurable insanity (the last of these grounds
being signifcant in that it constituted the frst example of no fault divorce known to
English law).
In the post-war era some dissatisfaction was expressed with the matrimonial fault doctrine.
It was by no means self-evident that commission of a matrimonial offence provided the
most reliable evidence of the breakdown of marriage. At the time of the debates leading
up to the enactment of the Divorce Reform Act 1969, it was often noted that commit-
ting a matrimonial offence was often a symptom, and not the cause, of a failed marriage.
Moreover, the court procedure required to prove the existence of fault often exacerbated
the bitterness of the marriage breakdown itself.
A Royal Commission, reporting in 1956, was divided as to what the proper basis of divorce
should be. A group set up by the Archbishop of Canterbury in 1967 produced an infuential
report, Putting Asunder, which castigated the matrimonial offence as being quite simply,
inept. The report recommended that the sole ground of divorce should be breakdown of
marriage, to be ascertained by an inquisitorial, rather than an adversarial, process. This re-
port was referred to the Law Commission, which then produced its own report on divorce,
The Field of Choice. The Commission accepted that divorce should be based upon the idea
of breakdown of marriage, but felt that, as formulated by the Archbishop of Canterburys
group, it was not suffciently justiciable. Furthermore, to order an inquiry into all alleged
cases of breakdown of marriage might be too costly and time-consuming and could reopen
the old wounds of a failed marriage. The Law Commission stated that the objectives of
good divorce law were:
1 to buttress, rather than to undermine, the stability of marriage; and
2 when, regrettably, a marriage has irretrievably broken down, to enable the empty legal
shell to be destroyed with the maximum fairness, and the minimum bitterness, distress
and humiliation.

A kind of divorce which does not

dissolve the marriage bond, but
merely authorizes a separate life
of the husband and wife.

A kind of divorce which does not

dissolve the marriage bond, but
merely authorizes a separate life
of the husband and wife.
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The Commission proposed a divorce law, which was enacted by the Divorce Reform Act
1969, and which was widely regarded as a compromise. On the one hand, the sole ground
of divorce is (as the Archbishop of Canterburys group had recommended) irretrievable
breakdown of marriage. On the other hand, irretrievable breakdown cannot be alleged
generally and must be proved by establishing the existence of one or more of fve facts:
1 adultery, plus intolerability
2 behaviour with which it is unreasonable to expect the petitioner to live
3 desertion for a period of at least two years
4 two years separation where the respondent consents to the decree being granted
5 fve years separation where he or she does not consent.
Appellate decisions, as we will see, have focused on the application of these facts to the
widely varying circumstances of marriage breakdown. The provisions of the Divorce Reform
Act 1969 were consolidated in the Matrimonial Causes Act 1973.
3.2.2 TheMatrimonialCausesAct1973
BaronpetitionswithinoneyearofmarriageundertheMCA1973
Between 1937 and 1984, no petition for divorce could be presented before three years
had passed from the date of the marriage, unless it could be shown that the petitioner
would face exceptional hardship or the respondent was of exceptional depravity. The Law
Commission considered the operation of this restriction in 1982 and concluded that it
merely delayed, rather than deterred, inappropriate divorce and it encouraged distressing
and humiliating allegations. Nonetheless, it was thought desirable to retain some restric-
tion on the availability of divorce early in marriage. Accordingly, s.3(1) MCA, introduced
in 1984, provides that no petition for divorce shall be presented to the court before the
expiration of the period of one year from the date of the marriage. Section 3(2) MCA 1973
specifcally provides that the bar does not prevent the presentation of a petition based on
matters which occurred before the expiration of that period.
ThegroundfordivorceundertheMCA1973
The sole ground for divorce in English law was formulated in s.1(1) MCA, which provides:
A petition for divorce may be presented to the court by either party to a marriage on the
ground that the marriage has broken down irretrievably.
This provision was misleading, however, for two reasons.
1 The court may not dissolve a marriage, no matter how clear it is that it has broken down ir-
retrievably, unless the petitioner satisfes the court of one or more of fve facts as evidence
of this breakdown. Three of these facts are reminiscent of the fault grounds of adultery,
cruelty and desertion.
2 The ground (being irretrievable breakdown), coupled with s.1(3) which directs the court
to inquire (so far as it reasonably can) into the facts alleged by the petitioner and the facts
alleged by the respondent, suggests that the court investigates whether there has been
such a breakdown. In practice, once a fact has been proven a decree is almost inevitable,
both because of the near-universal use of the special procedure (see Masson et al., 2003)
and because of s.1(4), which puts the burden on proving there has not been irretrievable
breakdown on the respondent.
Activity 3.1
Look at the cases of Buffery v Buffery [1988] 2 FLR 365 and Richards v Richards [1972] 1 WLR 1073.
What was the justifcation for these decisions?
Activity 3.2
What was the reason for the decision in the case Le Marchant v Le Marchant [1977] 1 WLR 559?
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3.3 ThedivorcefactsundertheMCA1973
3.3.1 Adultery
The respondent has committed adultery and the petitioner fnds it intolerable to live with
the respondent. (MCA s.1(2)(a))
Note the following features of the adultery fact.
The respondent must be the party who has committed adultery; the petitioner cannot
found a petition upon his or her own adultery.
Adultery consists of voluntary or consensual sexual intercourse between a married person
and a person (whether married or not) of the opposite sex, not being the others spouse.
Full and complete intercourse is not a prerequisite of adultery; it is suffcient if the female
sexual organ has been penetrated.
There is no necessary link between adultery and intolerability in s.1(2)(a). After some judi-
cial wavering, the Court of Appeal established in Cleary v Cleary [1974] 1 WLR 73 that the fact
is established if the petitioner genuinely fnds it intolerable to live with the respondent,
even if the adultery has not played any signifcant part in the breakdown of the marriage. In
other words, the Court refused to construe the section as if it required proof that:
the respondent has committed adultery by reason of which the petitioner fnds it intoler-
able to live with the respondent.
Activity 3.3
Look at the case of Roper v Roper [1972] 1 WLR 1314, 1317 for a discussion of the bizarre
results that the construction may lead to. What is the justifcation for such a decision?
The test of intolerability in s.1(2)(a) is subjective. The paragraph requires that the petitioner
fnds it intolerable to live with the respondent, not whether it is unreasonable for the
petitioner to live with the respondent. In Cleary Lord Denning, while recognising that the
paragraph was couched in subjective terms, stated that:
a judge in such cases as these should not accept the mans bare assertion that he fnds it
intolerable. He should inquire what conduct on the part of the wife had made it intoler-
able. It may be her previous adultery. It may be something else. But whatever it is, the
judge must be satisfed that the husband fnds it intolerable to live with her.
Living together may bar an adultery petition. MCA s.2(1) provides that, if the parties have
lived with each other for a period or periods exceeding six months after it became known
to the petitioner that the respondent had committed adultery, the petitioner cannot rely
on that act of adultery. However, s.2(2) states that a period or periods not exceeding six
months during which the parties have lived together after it became known to the peti-
tioner that the respondent had committed adultery shall be disregarded in determining
whether the petitioner fnds it intolerable to live with the respondent.
3.3.2 Behaviour
The respondent has behaved in such a way that the petitioner cannot reasonably be
expected to live with the respondent. (MCA s.1(2)(b))
This fact, which is the basis of most petitions for divorce, requires the petitioner to prove
two distinct issues.
That the respondent had behaved in a certain way.
On the basis of such facts as are proved about the respondents behaviour, that the peti-
tioner could not reasonably be expected to live with him or her. It is to be noted that it is
not the behaviour that needs to be unreasonable, but the expectation of cohabitation. See
Bannister v Bannister [1980] 10 Fam Law 240.
A number of issues have concerned the courts in the context of this fact. In particular:
what is meant by behaviour, whether the petitioner can be expected to live with the
respondent and how the behaviour fact interrelates with the adultery and desertion facts.

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Whatisbehaviour?
Several attempts have been made to defne behaviour but the matter has remained largely
unresolved. In Katz v Katz [1972] 1 WLR 955, for example, the court considered whether the
activities of the respondent husband, who was mentally disturbed and which had driven
the wife to attempt suicide, could be categorised as behaviour. The wife was granted a
decree, the court indicating that behaviour must be something more than a mere state of
affairs. It had to be action or conduct by the one which affects the other. In this context,
the discussion of the human vegetable respondent and the diffculties faced by the
petitioner in Thurlow v Thurlow [1976] Fam 32 by Rees J should be considered. Behaviour can
be positive or negative (Thurlow v Thurlow) and need not be morally culpable. See White v
White [1983] Fam 54.
It appears that a petitioner who is able to point to positive conduct may be in a better
position than a petitioner who seeks to rely on inactivity. See Carter Fea v Carter Fea [1987]
Fam Law 130.
Whether behaviour unconnected with the marriage is suffcient grounds for a petition is
questionable. See Katz v Katz.
Activity 3.4
Should the law permit divorce under this section where a respondent is quite incapable of
behaving?
Canthepetitionerbeexpectedtolivewiththerespondent?
This is judged objectively. (Note, however, the unusual suggestion of Cazalet J in Birch v
Birch [1992] 1 FLR 564 that the test is subjective.) The question is can the petitioner reason-
ably be expected to live with the respondent, not has the respondent behaved reason-
ably. However, the court considers the particular parties before it, not reasonable spouses
(as perceived by the law). See Pheasant v Pheasant [1972] Fam 202.
This suggests that it may be reasonable to expect parties with similar defects to live with
each other. See Ash v Ash [1972] Fam 135.
It also takes into account particular susceptibilities of individual spouses (see Archard v
Archard CM 109). The test that has been favoured by the courts in the determination of
whether the parties should reasonably be expected to live with each other is that of Dunn J
in Livingstone Stallard v Livingstone Stallard [1974] Fam 47, 54. This was endorsed by the Court
of Appeal in ONeill v ONeill [1975] 1 WLR 1118 and Buffery v Buffery, formulated in terms of a
direction to a jury:
Would any right-thinking person come to the conclusion that this husband has behaved
in such a way that his wife cannot reasonably be expected to live with him, taking into ac-
count the whole of the circumstances and the characters and personalities of the parties?
This test involves the court taking a view about the obligations and standards of behaviour
in marriage. See, for example, Thurlow v Thurlow for the obligations of a petitioner to an ill
respondent.
Activity 3.5
To what extent should the courts consider marital obligations when deciding whether to
grant a divorce?
Howdoesthebehaviourfactinterrelatewiththeadulteryanddesertionfacts?
A petitioner cannot rely on the respondents desertion, whether or not it has exceeded
the two years required by the desertion fact, as the basis of a behaviour petition. See
Stringfellow v Stringfellow [1976] 1 WLR 645 and Dowden v Dowden (1978) Fam Law 106.
It is not clear from Stringfellow v Stringfellow whether adultery can constitute behaviour for
the purposes of a petition based on the behaviour fact, although the wifes behaviour with
another man falling short of adultery has been held to constitute behaviour; see Wachtel v
Wachtel (1972) The Times, 1 August.
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The fact that the petitioner cannot reasonably be expected to live with the respondent
does not mean that the petitioner must be living apart from the respondent at the time
of the petition. In Bradley v Bradley [1973] 1 WLR 1291 the husband had made a knife attack
on one of the children but the wife was still living with him and their seven children at the
time she presented her petition. The Court of Appeal held that she was not precluded from
petitioning by the fact that she continued to live in the same household as her husband. As
Lord Denning remarked:
it is not reasonable to expect her to live there, but albeit unreasonable, she has no option
but to be there.
Section 2(3) provides that:
Where the petitioner alleges that the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with him, but the parties to the marriage
have lived with each other for a period or periods after the date of the occurrence of the
fnal incident relied on by the petitioner and held by the court to support his allegations,
that fact shall be disregarded in determining for the purposes of s.1(2)(b) whether the
petitioner cannot reasonably be expected to live with the respondent if the length of that
period or those periods together was six months or less.
Note that if the parties have lived together for more than six months the court is not bound
to dismiss the petition; it has a discretion whether or not to do so, which may be exercised
in the petitioners favour, as in Bradley v Bradley.
The drafting of s.2(3) is not entirely clear. It requires six months to be calculated from the
occurrence of the fnal incident relied on by the petitioner. We have already seen that in
some cases, for example Thurlow v Thurlow, what is complained of is not an incident but a
continuing condition suffered by the respondent. In such cases it may be hard to identify a
point from which the six-month period should run.
3.3.3 Desertion
The respondent has deserted the petitioner for a continuous period of two years immedi-
ately preceding the presentation of the petition (MCA s.1(2)(e)).
Desertion is the least signifcant of the divorce facts in terms of the annual number of peti-
tions. Adultery and behaviour provide a quicker remedy for those looking for an immediate
divorce, but paragraph (d) (consensual two years separation) is the fact most commonly re-
lied upon by those unable or unwilling to allege adultery or behaviour. In practice, it is only
necessary to rely on the fact of desertion when the couple have lived apart for two years and
the respondent is unwilling to consent to a divorce or where the petitioner wishes to avoid
the fve-year separation fact because it may be opposed on the grounds of hardship.
The principal elements of desertion are as follows.
There must be a separation of one spouse from the other. This is known as the factum of
desertion. The separation must be of the households and separation may be held to exist
even though the parties are living under the same roof.
There must be an intention on the part of the deserting spouse of bringing cohabitation
permanently to an end. This is known as the animus deserendi.

In essence, it means that

the party in desertion must have formed the intention to live permanently apart from the
other spouse. If that party is incapable of forming the intention (for example, by reason of
mental illness), then the petition will fail. See Perry v Perry [1964] 1 WLR 91.
The impact of supervening insanity upon the law of desertion has been mitigated by MCA
s.2(4) which provides that:
the court may treat a period of desertion as having continued at a time when the desert-
ing party was incapable of continuing the necessary intention if the evidence before the
court is such that, had that party not been so incapable, the court would have inferred
that his desertion continued at that time.
Note that the section is concerned with supervening insanity; it does not affect a case such
as Perry v Perry where mental illness prevented the intention to desert from arising.

Animus deserendi (Latin) =
intention to desert.

Animus deserendi (Latin) =
intention to desert.
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The separation must be without good cause. Desertion will not arise if there is a good cause
for the separation. Necessity, the commission of a matrimonial offence by the petitioner or
the physical or mental illness of either party may amount to good cause for the respondent
living apart from the petitioner: G v G [1964] P 133.
However, this defence to desertion will not avail the respondent if he or she has indicated
that he or she will never return to the petitioner even if a cure is found for the illness.
A different type of good cause was considered by the Court of Appeal in Quoraishi v
Quoraishi [1985] FLR 780. The parties were married in Bangladesh under Islamic law. The
husband was permitted under Bangladeshi law to take a second wife. The wife frmly op-
posed the husband taking another wife. Nevertheless, the husband contracted a second
marriage by proxy. The frst wife left the husband. When the latter petitioned for divorce on
the ground of the frst wifes desertion, the Court of Appeal held that the husbands second
marriage constituted good cause for his frst wife to leave him.
The separation must occur without the consent of the other spouse. Consensual separa-
tion cannot amount to desertion. Consent to separation may be withdrawn at any time but
the burden of proof that consent has been withdrawn rests upon the party alleging it. See
Fraser v Fraser [1969] 1 WLR 1787.
Offer to return: desertion is an inchoate offence, incomplete until legal action has com-
menced. It can be terminated at any time by the party in desertion, demonstrating that his
or her intention to desert has been superseded by making an offer to return.
Constructive desertion: before the Divorce Reform Act 1969 the courts had evolved the
doctrine of constructive desertion, whereby a party whose behaviour was so unbearable
that the other party left home is held guilty of constructive desertion. The extent to which
the doctrine of constructive desertion has survived the enactment of the Divorce Reform
Act is unclear. Most forms of expulsive conduct will now constitute behaviour within
s.1(2)(b). Where, however, one spouse orders the other to leave and the other complies, it
is possible that the case may still be pleaded as one of constructive desertion. See Morgan v
Morgan [1973] 117 SJ 223.
The desertion must have elapsed for a continuous period of two years immediately preced-
ing the presentation of the petition. However, s.2(5) provides that, in deciding this issue:
no account shall be taken of any one period (not exceeding six months) or of any two or
more periods (not exceeding six months in all) during which the parties resumed living
with each other, but no period during which the parties lived with each other shall count
as the period of desertion.
Nonetheless, it was still necessary to show an aggregate of two years desertion and any
period or periods of resumed cohabitation is deducted.
Activity 3.6
Consider the case of Le Brocq v Le Brocq [1964] 1 WLR 1085. What is the basis for this decision?
3.3.4 Livingapartfortwoyears
The parties to the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the petition and the respondent consents to a
decree being granted (MCA s.1(2)(d))
This was the frst of the so-called no fault divorce facts. Notice the following points about
this separation ground.
The use of the verb consent: the original draft of the Divorce Reform Bill stated that the
respondent does not object to a divorce. The present wording requires positive consent on
the part of the respondent. Rules of the Court prescribe how consent is to be obtained and
the information that the respondent must be given to enable him or her to reach his or her
decision (see FPR 1991, Form M5, paragraph 5). A respondent may also consent conditionally
(for example, on condition that he does not have to pay the costs of the petition).
Living apart involves both a physical and a mental element. Insofar as the former is con-
cerned, MCA s.2(6) provides a defnition of living apart:

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a husband and wife shall be treated as living apart unless they are living with each other in
the same household.
This means that a husband and wife will be regarded as living apart, even if they live under
the one roof, unless it can be said they are living in the same household. The cases indicate
that the courts ask whether there is any community of life between the parties. This can be
made out, even if they are on the worst of terms, if they are sharing any form of domestic life.
Activity 3.7
Compare the cases of Mouncer v Mouncer [1972] 1 WLR 321 and Fuller v Fuller [1973] 1 WLR 730.
What valid distinction can be drawn between these two cases?
In order to fulfl the required mental element, any separation must be accompanied by a
recognition on the part of at least one of the parties that the marriage is at an end.
Until that time, the parties may be apart, but they are not living apart. See Santos v Santos
[1972] Fam 247. This intention need not be communicated to the other party.
MCA s.10(1) provides that:
the court may, on an application made by the respondent at any time before the decree is
made absolute, rescind the decree if it is satisfed that the petitioner misled the respond-
ent (whether intentionally or unintentionally) about any matter which the respondent
took into account in deciding to give his consent.
The bar is discretionary; the court is not bound to rescind the decree if deception has oc-
curred. The court will ascertain whether this respondent was in fact misled, not whether a
reasonable respondent would have been deceived.
3.3.5 Livingapartforfveyears
The parties to the marriage have lived apart for a continuous period of at least fve years
immediately preceding the presentation of the petition (MCA s.1(2)(e)).
As with s.1(2)d this fact requires consideration of whether the requisite fve years physical
and mental separation had been proven.
Thedifferencesbetweenthelivingapartfacts
There are two differences between the living apart facts:
Where a decree is based on the two-year fact, the respondent must consent to the decree
being granted.
Where a decree is founded solely on fve years of living apart, the court may withhold a
decree in certain circumstances if it is satisfed that the dissolution of the marriage would
cause grave fnancial or other hardship to the respondent. This bar, contained in s.5 MCA,
was introduced essentially to protect the innocent wife, but restrictive drafting and
judicial interpretation of the provision has made it a sparingly used provision. Section 5
provides that the court may dismiss a petition based solely on the fve-year living apart fact
if two conditions are met. They are:
that dissolution will result in grave fnancial or other hardship to the respondent,
which is defned as including the loss of the chance of acquiring any beneft which the
respondent might acquire if the marriage were not dissolved
that it would in all the circumstances be wrong to dissolve the marriage.
This hardship bar remains relevant under the Family Law Act 1996, where it will operate to
deny a divorce where hardship is established.
The following points have emerged from the case law on s.5 MCA.
In considering fnancial hardship, for example loss of a pension upon divorce, the court
will consider whether alternative fnancial provision can be made for the respondent. See
Parker v Parker [1972] Fam 116 where the fnancial hardship which would be incurred to the
respondent wife by the loss of her pension entitlement on divorce could be offset by the
husband purchasing a deferred annuity or insurance policy for the wifes beneft. See also
Le Marchant v Le Marchant [1977] 1 WLR 559.

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The court will weigh up any fnancial hardship arising upon divorce against the public policy
of dissolving a marriage that has clearly broken down. See Mathias v Mathias [1972] Fam 287.
Grave fnancial hardship may be offset by a consideration of social security entitlements
available to the respondent. See Reiterbund v Reiterbund [1975] Fam 99.
The most commonly pleaded grave other hardship (i.e. non-fnancial) has been a religious
objection to the granting of a divorce decree. There is no reported case in which a divorce
has been refused on account of such an objection. See Rukat v Rukat [1975] Fam 63, Banik v
Banik [1973] 1 WLR 860 and Banik v Banik (No.2) [1973] 117 SI 874.
Non-fnancial hardship of a non-religious nature was considered in Lee v Lee [1973] 616, ap-
peal allowed [1974] Fam Law 48.
The hardship must be very important or very serious and it must result from the divorce,
not from the fact the marriage has broken down. See Reiterbund v Reiterbund, but compare
Jackson v Jackson [1993] Fam Law 675 in which a low-income pensioner unsuccessfully at-
tempted to rely on s.5.
See also Archer [1999] 1 FLR 327 where the Court of Appeal upheld the decision that the
loss to a wife of an income under the husbands pension scheme of about 11,000 p.a.,
were he to predecease her, was not grave in the light of the wifes overall assets of about
500,000. Even though the husband, when he retired, would no longer be able to afford to
make maintenance payments to the wife, it would not be unusual for a former spouse, on
the hypothesis that the other former spouse had died, to use capital to support herself in
her declining years.
In considering whether it would be wrong in all the circumstances to dissolve the marriage,
the court is directed to a number of matters, including the conduct of the parties to the
marriage. See Brickell v Brickell [1974] Fam 31.
They may also consider the interests of the parties to the marriage, the interests of any
children and of any other persons concerned.
Protectionforrespondentsapplyingtoboththelivingapartfacts
Sections 10(2) and 10(3) apply where a divorce is sought under either of the separation
grounds. A respondent could apply to the court after the granting of a decree nisi for
consideration of his or her fnancial position after divorce. In such a case the court must be
satisfed that the fnancial provision made by the petitioner for the respondent is reason-
able and fair or the best that can be made in the circumstances. The provision was enacted
when the courts powers with respect to fnancial provision on divorce were less extensive
than they are now. The provision is now rarely invoked, but may be useful in particular
circumstances. See Garcia v Garcia [1992] 1 FLR 256.
Summary
The modern law of divorce is to be found in the Matrimonial Causes Act 1973. No petition
for divorce can be presented to the court within one year of marriage. The sole ground
for divorce is irretrievable breakdown and to establish this the petitioner must prove
one of the fve facts. They must show that: there has been adultery by the respondent; the
respondent has behaved in such a way that they cannot be reasonably be expected to live
with the respondent; they have been deserted by the respondent; they have been living
apart from the respondent for a continuous period of two years with consent; or that they
have lived apart from the respondent for fve years and have not been able to seek the
consent of the respondent. It is only necessary for the petitioner to prove one of these fve
facts, but without proof of one of these fve facts there can be no irretrievable breakdown
and therefore no divorce.

Go to your study pack and

read Men and women
behaving badly: is fault dead
in English law, by Andrew
Bainham.
This will help you consider
whether fault is now dead
in family law.
Go to your study pack and
read Men and women
behaving badly: is fault dead
in English law, by Andrew
Bainham.
This will help you consider
whether fault is now dead
in family law.
F~uiiv i~w 3 Divorcr ~No oissoiu:ioN r~cr q;
3.4 Conciliationandreconciliation
Among its other objectives, the Divorce Reform Act 1969 signalled an attempt to place
marriage guidance within the framework of divorce and to acquaint solicitors with the
various agencies working in this feld. In addition to the provisions contained in MCA 1973
s.2, s.6 included measures designed to encourage reconciliation. Section 6(1) provided that
a petitioners solicitor must fle a certifcate as to whether he or she had discussed with the
petitioner the possibility of reconciliation and given him or her the names and addresses of
persons qualifed to help in this regard. It will be apparent from the drafting of s.6(1) that its
utility is confned to those cases where the petitioner employs a solicitor. Section 6(2) pro-
vides that, if at any stage of the proceedings for divorce it appears to the court that there
is a reasonable possibility of a reconciliation between the parties to a marriage, the court
may adjourn the proceedings for such period as it thinks ft to enable attempts to be made
to effect such a reconciliation. Court welfare offcers can provide assistance in such cases.
These provisions have had little impact on the operation of divorce law, despite their
benevolent intentions. The FLA 1996 incorporates mediation into divorce procedure (see
below). The thrust of this Act was to facilitate agreements about the future to be reached
by the parties themselves during the period of refection and consideration. The courts
will retain jurisdiction to approve agreements made and to make orders where mediation
has either failed or has been impossible to arrange.
A frequently voiced criticism of modern divorce law is that not only are provisions for
reconciliation ineffective, but there is no recognition of the important distinction between
conciliation and reconciliation. This distinction was articulated most clearly by the 1974
Finer Committee report on one-parent families (Cmnd 5629) at paragraph 4.288:
By reconciliation we mean the reuniting of the spouses. By conciliation we mean as-
sisting the parties to deal with the consequences of the established breakdown of their
marriage, whether resulting in a divorce or a separation, by reaching agreements or giving
consent or reducing the area of confict upon custody, support, access to and education
of the children, fnancial provision, the disposition of the matrimonial home, lawyers fees,
and every other matter arising from the breakdown which calls for a decision on future
arrangements.
You are not expected to have more than an outline knowledge of conciliation and rec-
onciliation as it relates to the law under the MCA; if you want to know more, Masson et al.
discuss this extensively. However, the FLA places mediation (or conciliation) at the heart of
the divorce process and you are encouraged at least to evaluate the potential benefts,
and any disadvantages, which mediation may have produced had the new divorce process
been implemented fully.
Self-assessment question
What is the distinction between reconciliation, conciliation and mediation?
3.4.1 Thedivorcereformproposals
In 1985 the Report of the Matrimonial Causes Procedure Committee (the Booth Committee)
stated that the bitterness and unhappiness of divorcing couples is frequently exacerbated
and prolonged by the fault element in divorce (paragraph 2.10). Nevertheless, although
it made many suggestions for improving divorce procedures, the Committee was not
empowered by its mandate to propose substantive reform.
Comments such as those of the Booth Committee led the Law Commission to review
the substantive law of divorce. In 1988, the Commission published Facing the Future, a
Discussion Paper on the Ground for Divorce (Law Com 170), which reviewed divorce laws in
various other jurisdictions and favoured, as the reform option, a process over time where-
by a party fles a notice of intention to divorce and after a period of time the divorce will be
granted without the need to establish any particular fact (provided that all outstanding
matters relating to fnancial provision and children have been resolved).
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The Discussion Paper was followed in 1990 by Family Law: the Ground for Divorce (Law
Com 192), which canvassed the discussions generated by the Discussion Paper and attached
a draft bill. In December 1993 the Lord Chancellor issued his response in Looking to the
Future: Mediation and the Ground for Divorce and in 1995 issued Looking to the Future:
Mediation and the Ground for Divorce: the Governments Proposals.
Activity 3.8
To what extent, if any, should fault remain relevant to divorce law?
TheFamilyLawAct1996:thedivorcereformthatneverwas
After this prolonged period of gestation and considerable political opposition, the Family
Law Act 1996 (FLA) received the Royal Assent in July 1996. Parts II and III of the reformed law
were due to come into effect in 1999, and Part IV of the Act, relating to domestic violence,
came into effect in 1997. However, Parts II and III were never fully implemented for the
reasons discussed below. Part I of the FLA (General Principles underlying Parts II and III) is,
confusingly, in force.
Is it worth noting that, whilst Part II of the FLA 1996 was never brought into force, Parts I
and III were for the purposes of divorce. It is useful to consider the contents of Part II as it
provides an indication of what might have been, which helps us to understand what is and
what is not feasible in divorce reform.
Under the unimplemented reforms, irretrievable breakdown of the marriage would have
remained the sole ground for divorce. Part I states the principles of the Act (which are in
force) namely that the institution of marriage is to be supported and that parties to a
marriage should take all steps practicable to save a marriage but states that, where the
marriage has irretrievably broken down, the marriage should be ended:
with the minimum distress to the parties and to the children affected
with arrangements made in a manner which will promote a good continuing relationship
between the parties and any affected children
without undue costs being incurred.
Courts are further directed by the Act to remove or diminish the risk of violence to the
parties to the marriage or affected children.
3.4.2 TheprocedureundertheFamilyLawAct1996
Either party, or both, may make a statement of breakdown which is proof of the breakdown
(s.5). The statement must conform to prescribed rules (ss.6 and 12).
Following the making of the statement, a period of refection and consideration must pass,
that period being nine months following the 14th day of the receipt of the statement by the
court (s.7). The period of refection and consideration may be extended by the court, on the
application of the other party, or may be stopped if both of the parties give notice to the
court that they require additional time in which to attempt a reconciliation (s.7). Where
there are children of the family under the age of 16, however, the period is extended to 15
months (s.7(11) and (13)).
The procedure to be followed and the time-scale for divorce is accordingly as follows.
Before the court may make a divorce order:

the parties must have attended an information meeting or meetings

a statement of marital breakdown must be made to the court. This may not be made until
three months after the information meeting.
The statement is served on the other party by the court and, after a period of 14 days, the
period of refection and consideration begins. This period lasts for nine months, but is
extended by another six months in two cases. First, where one party applies to the court for
time for further refection and, secondly, where there is a child under the age of 16 at the
date of making the statement. (Note that there can be no extension where a non-molesta-
tion order or occupation order exists.)

Note that a divorce order was

previously known as a divorce
decree.

Note that a divorce order was

previously known as a divorce
decree.
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Accordingly, the minimum period of time from attending an information meeting to a divorce
order is 54 weeks (or 3 months plus 9 months plus 14 days) and this may be extended to
80 weeks. No statement may be made before the frst anniversary of the marriage (s.7(6)),
although an information meeting may be attended during the frst year of marriage (but this
is pointless until 9 months of the marriage has elapsed, since there is a minimum period of 3
months between attending the information meeting and making the statement). As a result,
the earliest a marriage without children can be dissolved is after 93 weeks and, where children
are involved, the marriage can only be dissolved after 119 weeks (nearly 2 years and 4 months).
As stated above, where either party or both parties intend to make a statement, they must
attend an information meeting not less than three months before fling the statement (s.8).
Where a statement has been made by only one party, the other party must attend an infor-
mation meeting before making any application to the court regarding children, property or
fnance (s.8(5)). Regulations have prescribed the format of the meetings, the qualifcation
of persons permitted to run the meetings and the objectives being sought through the
meetings (s.8(9)). After receiving the statement of breakdown, the court may direct that
each party attends a meeting as per s.13(1) if the judge thinks that the parties should be
given an explanation of mediation.
Section 9 stipulates the requirements as to the parties future arrangements. The court
considering an application for divorce or separation must be provided with either a court
order dealing with fnancial arrangements or a negotiated agreement or a declaration by
both parties that arrangements have been made or that there are no arrangements to be
made (s.9). Under circumstances where no negotiated agreement has been reached (de-
fned in Schedule 1, paragraphs 14), the court may make an order for divorce or separation
without that agreement.
Wheretherearechildren
Under s.11 of the unimplemented 1996 Act, the court may direct that the divorce or separa-
tion order is not to be made if there are children of the family and it appears to the court
that it is likely to be required to exercise its powers under the Children Act 1989.
This would be the case in the following circumstances.
The applicant has tried but failed to reach an agreement and has made an application to
the court for fnancial relief and the other party has delayed or obstructed the applica-
tion, or that the court is unable to secure the relevant information from the other party
(Schedule 1, paragraph 1).
The applicant has made all reasonable steps to reach an agreement but that, through the ill
health or disability of the other party, or through injury suffered by the applicant or a child
of the family, agreement has been impossible and is unlikely to be reached in the foresee-
able future (Schedule 1, paragraph 2).
The requirements of s.9 may be exempted if the other party is unable to be contacted.
Where there is an occupation or non-molestation order in force against the other party, the
applicant has tried but failed to reach an agreement (and is unlikely to be able to do so in
the foreseeable future) and it would be detrimental to a child or the applicant for the court
not to grant the order, the court may do so (provided by paragraph 4 of Schedule 1).
3.4.3 Substantialhardship
An order for divorce may be prevented on the basis of substantial fnancial or other hard-
ship when it would be wrong in all the circumstances to dissolve the marriage (s.10). This is
essentially a re-enactment of s.5 MCA, although the word grave in relation to the hardship
was replaced with substantial. Where there are children of the family, the court must
consider these children and whether or not it should exercise any of its powers to make
orders under the Children Act 1989.
Schedule 2 of the FLA amends the MCA in relation to fnancial provision (s.15 FLA). The
principal change in the law relates to the making of fnancial provision orders following the
receipt of a statement of breakdown before the application for divorce or separation has
been made. The current law relating to fnancial provision, as amended by the 1996 Act,
would have therefore remained relevant and applicable in the event that the parties are
unable to reach an agreed settlement. Schedule 2 not yet been brought into effect.

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3.4.4 Thefailureofthe1996Act
The reasons given for the failure to successfully implement these divorce reforms were un-
successful piloting of information meetings. This was the essential part of the new divorce
legislation in s.8 FLA.
The research showed that, although those attending valued the provision of information,
the information meetings were not effective in helping most people to save their mar-
riages as these meetings came too late. The evidence showed that the meetings tended
to incline those who were uncertain about their marriage towards divorce. The meetings
were too infexible to provide people with information tailored to their personal needs. In
addition, in the great majority of cases, only the person petitioning for divorce attended
the meeting but marriage counselling, conciliatory divorce and mediation depend for their
success on the willing involvement of both parties.
Concerns did not only relate to information meetings. The complex procedures in Part II
would be likely to lead to signifcant delay and uncertainty in resolving arrangements
for the future. The government was concerned that this delay would not be in the best
interests of either couples or their children. The Acts complexity was likely to cause a great
deal of uncertainty over the divorce process, which would be unhelpful for families at what
is always a diffcult and emotional time. Part II would not fulfl the principles of Part I, which
focus on saving saveable marriages and, where they do break down, bringing marriages to
an end with the minimum distress to the parties and children affected.
Lord Irvine said:
The government is committed to supporting marriage and to supporting families when
relationships fail, especially when there are children involved. But this very comprehensive
research, together with other recent valuable research in the feld, has shown that Part II
of the Family Law Act is not the best way of achieving those aims. The government is not
therefore satisfed that it would be right to proceed with the implementation of Part II and
proposes to ask Parliament to repeal it once a suitable legislative opportunity occurs.
The fnal evaluation report on information meetings can be found on the Lord Chancellors
web site www.dca.gov.uk.
TheHumanRightsAct1998anddivorcelaw
It has been suggested that although the European Convention of Human Rights recognises
a right to marry it does not necessarily include a right to divorce (Johnston v Ireland (1986)
9 EHRR 203 ECtHR). The Convention appears to allow the state to restrict access to divorce,
but not unduly restrict access to marriage or remarriage (F v Switzerland (1987) 10 EHRR
411 ECtHR). It does appear that the divorce law under the MCA could not be challenged
under the Convention. The same would appear to be true if the FLA 1996 had been fully
implemented.
Summary
Since 1969 there have been statutory measures to encourage reconciliation. These were
further developed in the Family Law Act 1996 but the crucial part of the Act Part II was
never fully implemented. Pilot studies proved that the attempts to force couples into
mediation were at best unhelpful and at worse delayed the inevitable. The proposed
procedure is useful as a device to show us how mediation could have been used to try
and avoid divorce. This may have been especially important where there were children
involved. An order for divorce under the existing law may be prevented on the grounds of
substantial hardship. The Human Rights Act 1998 will have little impact upon the existing
law of divorce. While the convention enshrines a right to marry, there exists no correlating
right to divorce.
F~uiiv i~w 3 Divorcr ~No oissoiu:ioN r~cr :
3.5 Dissolutionofcivilpartnerships
As with divorce for heterosexual couples it is possible for homosexual couples to end
their civil partnership. This process is called dissolution and is governed by ss.3764 CPA.
Under these provisions the High Court and county courts have the jurisdiction to grant a
dissolution order in the way they had the power to grant a nullity order. The provisions for
dissolution mirror those for divorce and so the applicant must prove that the partnership
has irretrievably broken down. This must be proven under s.44(5) CPA on the basis of one
or more of the following facts: a) unreasonable behaviour, b) two years separation with
consent, c) fve years separation and d) desertion for at least two years. You should note
that, unlike divorce, adultery is not one of the facts for a dissolution order. This does not
mean an applicant would not be able to cite their partners unfaithful behaviour as part of
the unreasonable behaviour fact but adultery was omitted from the legislation on the basis
that it has a specifc meaning within the context of heterosexual relationships and it would
not be possible nor desirable to read this across to same-sex civil partnerships. (Women
and Equality Unit, 2003).
The process for dissolution mirrors that for divorce in that a one-year time lapse must
take place before dissolution can be sought (s.41 CPA). Dissolution can also be barred on
the same basis as divorce and a separation order under s.56 CPA mirrors that available for
heterosexual married couples. The special procedure can also be used to hasten the dis-
solution. There is one fnal difference in that the terms decree nisi and decree absolute do
not apply to civil partnerships. The equivalent orders are instead termed conditional order
and fnal order.
Sample examination questions
Question 1 The governments decision not to implement the reformed divorce law under
the Family Law Act 1996 characterises offcial uncertainty as to the extent to which law can
and should control the dissolution of family units.
Discuss. What is your preferred solution to the reform of divorce law?
Question 2 Brenda and Ken aged, respectively, 34 and 30, married in 2002, six years ago.
They have two children, Larry and Simon, now aged six and four. Ken is an IT specialist
who works for an international company. Following the birth of Larry, Brenda, at Kens
insistence, gave up her employment as a trainee solicitor. In 2005 Ken had a brief affair
with Valerie, which he terminated in December 2005. Brenda suspected that Ken had been
unfaithful, and in September 2005 discovered a hotel bill which confrmed it. Realising that
her marriage was breaking down, Brenda became depressed and started to drink exces-
sively. Unfortunately, drink made Brenda aggressive and on two occasions she hit Ken. Ken
decided that he was leaving Brenda, and arranged to travel on a two-year overseas work
contract. He did not consult Brenda. He left home in March 2006.
Brenda wishes to have her marriage dissolved. Advise Brenda as to whether she can
divorce Ken under the Matrimonial Causes Act 1973.
Adviceonansweringthequestions
Question 1 This essay question requires a good understanding of the present law on di-
vorce, the Family Law Act 1996 and its failure to reform, a discussion on the extent to which
the law can and should control the dissolution of family units and, fnally, your preferred
solution to reforming the present divorce law.
First, it is worth considering in some detail the present law on divorce and what the criti-
cisms are of it. The Law Commission Report No. 192, 1990 said the law was confusing and
misleading, discriminatory and unjust, it distorts the parties bargaining power, provokes
unnecessary hostility and bitterness, it can make things worse for the children and it does
nothing to save the marriage. With such a damning indictment it is no wonder the law
needs reform.
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Then consider the Family Law Act 1996. Look at the objectives of divorce law under Part I and
then look at the controversial Part II which was never fully implemented. It tried to support
couples to seek help in an attempt to help them to realise the gravity of their decision to
divorce and to try to help them reconcile if at all possible. You should have a good grasp of
the timetable of mediation suggested. The whole process could take up to 18 months. It was
unpopular in pilot studies for a number of reasons. One of the most compelling is that any
couple who have decided to divorce have probably engaged in enough thought and discus-
sion about the consequences and there was a slight feeling of delay for delays sake. The de-
cision not to implement was due to high expectations of mediation and a failed reduction in
legal costs. The problem was the uncertainty of the outcome and there was suffcient delay
before announcing that Part II would not be implemented. This was felt to demonstrate a
general reluctance to get further involved in the dissolution of family units.
When considering your own type of reform look at alternate systems. Should we have a to-
tal fault system? A non-fault system? Do you think there is room for mediation somewhere
here? Prior to the FLA 1996 lip service was paid to the idea. Is it time for the government
to be assertive and make some change? After all, the present law does not help anyone to
resolve what is a very sad event: the breakdown of a very close relationship.
Question 2 This problem question requires a good overview of the present law on divorce.
Brenda, the petitioner, will have to demonstrate irretrievable breakdown and this will
involve a discussion of the fve facts. What is the status of Kens adultery? Have they lived
apart for two years? Or was Brenda deserted when Ken left to work overseas? This question
demands a good working knowledge of the MCA 1973, so read through your statutes and
see what the requirements are. Have they now lived apart for fve years? If so, does Brenda
require any consent? Are there any special defences to living apart for fve years? The
chances are that Brenda will have to rely on the living apart provisions. Does this demon-
strate the inherent problems with the present law on divorce?
F~uiiv i~w 3 Divorcr ~No oissoiu:ioN r~cr _
Refectandreview
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfed that I have suffcient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise frst = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
diffcult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise frst
Need to
study again
I can explain the principles underlying the law of
divorce, both under the MCA and the FLA.

I can describe the grounds for divorce under the MCA

and the relationship between the grounds for divorce
and the facts which raise the presumption of the ground.

I can state the actual requirements of each fact: each

fact comprises more than one element and I can discuss
every aspect of each fact as revealed by the case law.

I can discuss whether the issue of fault should remain

part of the law of divorce and the reasons for this.

I can outline the perceived defects in the current law

and the need for reform.

I can discuss whether the suggestions for reform

would have answered the criticisms levelled at the
current law.

I can say whether the suggested law reform places

too much control in the hands of the parties to the
divorce, as opposed to the court.

I can give an opinion on whether the reformed law

would have, in fact, made divorce easier or more
diffcult, and whether this is desirable.

I can assess whether the reformed law would have

encouraged or discouraged divorce.

I can identify how a civil partnership can be dissolved

and any apparent differences between this law and
the law of divorce.

If you ticked need to revise frst, which sections of the chapter are you going to revise?
Must
revise
Revision
done
3.1 The divorce process under the MCA 1973
3.2 The background to the modern law
3.3 The divorce facts under the MCA 1973
3.4 Conciliation and reconciliation
3.5 Dissolution of civil partnerships
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4 Protectionagainstdomesticviolence
Contents
Introduction 56
41 Thecriminallaw 57
42 Injunctions 58
43 TheFamilyLawAct1996 64
44 Enforcementoforders 70
45 TheHumanRightsAct1998 73
Refectandreview 76
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Introduction
There has been, for the past 30 years, increased concern about violence in the family. The
legal procedures intended to provide a remedy in this context have proliferated so that
they have resulted in:
a hotchpotch of enactments of limited scope passed into law to meet specifc situations
or to strengthen the powers of particular courts. Lord Scarman, Richards v Richards [1984]
AC 174, 206
The Law Commission attempted to meet this and other criticisms in Domestic Violence
and the Occupation of the Matrimonial Home (Law Com No. 207, 1992), where it proposed
a single set of remedies to be available in all courts that have the power to deal with family
cases. The Law Commissions proposals, and the subsequent legislation contained in the
FLA, were specifcally confned to civil remedies. You should be aware, however, of the
criminal law in this context. You should also cross-reference this topic with that of child
protection, covered in later chapters.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
discuss the role and effectiveness of the criminal law in domestic violence
describe the differing jurisdictions under which court orders may be made
explain the difference between the grounds for non-molestation orders and ouster
orders under the DVMPA and the DPMCA
draw up a list of the persons who may apply under each of the Acts
explain the duration of orders, particularly in relation to ouster orders
state the defnition of harassment under the DVMPA
defne the new tort of harassment under PHA
consider the potential impact of the HRA on this area of law.
Essential reading
Herring, Chapter 6, pp. 258305.
Masson et al., Chapter 9, pp.241275.
Probert, Chapter 6, pp. 111127.
Standley, Chapter 6, pp. 109131.

F~uiiv i~w 4 lro:rc:ioN ~c~iNs: oours:ic vioirNcr r~cr ;

4.1 Thecriminallaw
No spouse is entitled by reason of marriage to infict violence on the other. See R v Jackson
[1891] 1 QB 671. In appropriate cases, therefore, a spouse may be prosecuted for offences
ranging from common assault to murder and a husband may also be prosecuted for sexual
offences against his wife. See R v R (Rape: Marital Exemption) [1991] 4 All ER 481.

The criminal law, however, has proved ineffective in suppressing domestic violence. There
appear to be two main reasons for this:
Procedural requirements which complicate the initiation of criminal proceedings, but note
DPP v Little [1992] Fam Law 377.
The police are reluctant to bring charges in cases of domestic violence. There appear to be
a number of reasons for this. The battered woman may be unwilling to go to court to give
evidence against her aggressor. A wife may call in the police for her immediate protection,
but that does not necessarily mean that she will provide evidence for further legal action
against her husband. A wife can be compelled to give evidence against her husband under
s.80 of the Police and Criminal Evidence Act 1984 as qualifed by the Youth Justice and
Criminal Evidence Act 1999, but the evidence of a spouse who is testifying reluctantly will
often appear to lack cogency.
The police have also traditionally regarded domestic violence as belonging to the private
sphere of family life and unsuitable for law enforcement.

While insensitive interference by

the police is obviously to be deplored, the reluctance of police to prosecute wife batterers
has been criticised. A number of senior offcers, including the former Metropolitan Police
Commissioner, Sir Ian Blair, have now indicated that offcial policy favours the vigorous
prosecution of cases of domestic violence and the Home Offce has issued a number of
circulars emphasising the importance of appropriate policing in family violence cases.
4.1.1 Matrimonialrelief
Where the parties are married, divorce may be the most appropriate response to a violent
spouse. If spouses wish to separate, but not divorce, they may take advantage of the
decree of judicial separation (see below). Such a decree entitles the petitioner to live apart
from the respondent, but does not entitle either party to remarry. This was a remedy of
some signifcance when divorce could only be obtained upon proof of a limited number
of matrimonial offences. With the widening of the facts for divorce and the reduction of
the period to one year during which divorce could not be obtained, the decree of judicial
separation has declined in popularity.
MCA s.17 governs the award of decrees of judicial separation

(but note for civil partner-

ships a separation order can be applied for under s.56(1) CPA 2004). Any of the fve facts
suffcient to prove a petition for divorce must be shown, but it is unnecessary for irretriev-
able breakdown of the marriage to be established. When granting a separation order, the
court has all the powers of making fnancial provision and custody orders that it would
upon divorce. Although there is some evidence that solicitors in a small number of cases
were seeking decrees as a response to wife battering, judicial separation as a remedy has
been overtaken by the procedures which are designed to regulate occupation of the family
home following the breakdown of a relationship.

See also Law Com 205 Rape

within Marriage (1992).

See also Law Com 205 Rape

within Marriage (1992).

Some points to consider:

To what extent does and should
the criminal law provide effective
remedies in relation to domestic
violence?
Does the relative ineffectiveness
of the criminal law mean that
spouses and cohabitees are
treated differently from strangers
in relation to violence?

Some points to consider:

To what extent does and should
the criminal law provide effective
remedies in relation to domestic
violence?
Does the relative ineffectiveness
of the criminal law mean that
spouses and cohabitees are
treated differently from strangers
in relation to violence?

See Garlick, P. Judicial separation: a

research study (1983) 46 MLR 719.

See Garlick, P. Judicial separation: a

research study (1983) 46 MLR 719.
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4.2 Injunctions
Two forms of injunction are relevant in the context of domestic violence:
a non-molestation order, which enjoins and restrains the defendant from interfering with
the claimant
an ouster order (or occupation order), which requires one party to vacate the home and
not to return to it.
Before the enactment of the FLA, there were three relevant statutes empowering the
superior courts to grant orders in the context of domestic violence, as well as jurisdiction
in the Magistrates Courts. These statutory provisions were complex, they overlapped and
were not comprehensive. The FLA redressed these defects, providing a comprehensive and
unifed code that provides remedies for domestic violence. For the immediate future it is
still necessary to understand the law before its 1996 reform, with a view to appreciating
the merits of the reformed law. The old law also retains relevance insofar as the concept of
molestation is incorporated into the FLA, without statutory defnition, and remains to be
interpreted by the judiciary.
4.2.1 MatrimonialHomesAct1983
The Matrimonial Homes Act 1983 (MHA) (repealed and replaced by the Family Law Act
1996) consolidated the Matrimonial Homes Act 1967 and subsequent amendments to
that Act. The Act of 1967 had not been envisaged as a legal response to domestic violence.
Rather, it was intended as Parliaments response to the House of Lords decision in National
Provincial Bank v Ainsworth [1965] AC 1175 which had rejected Lord Dennings attempts in a
number of cases in the 1950s and early 1960s to establish a deserted wives equity in the
former matrimonial home. The MHA gave spouses in occupation of the matrimonial home
rights of occupation, the most important of which was the right not to be evicted during
the marriage unless the court orders otherwise. The Act also provided machinery registra-
tion of a Class F Land Charge or a Land Registry notice whereby spouses could protect
such rights against third parties.
In Richards v Richards [1984] 1 AC 174 the House of Lords signifcantly widened the use of
the MHA to cases of domestic violence. Indeed, the House went so far as to hold that other
legislation, such as the Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA),
must be read subject to the overriding framework of the MHA. The legislation was available
to those who were married and provided that if one of the spouses had rights to occupy
the matrimonial home within s.1(1) of the Act, then the High Court or the County Court
could make an order:
declaring, enforcing, restricting or terminating the statutory rights of occupation of a
spouse
prohibiting, suspending or restricting the exercise of the right, by either spouse, to occupy
the dwelling house that has arisen by operation of law independently of the Act
requiring either spouse to permit the exercise by the other of that right. (The effect of the
section is that either spouse can be ordered to leave the home, or be given the right to
re-enter, by court order, irrespective of their property interests.)
It must be noted that the court was not empowered under this legislation to make a non-
molestation order, nor was it empowered to restrain the respondent from entering the
geographical area in which the matrimonial home was situated. It could, however, make
orders for periodical payments and impose on either spouse obligations to repair and
maintain the house or discharge any obligations with respect to it (s.1(3)(b), (c)).
It could also order that certain parts of the house be excepted from a spouses right of
occupation (s.1(3)(c)).
Activity 4.1
Did Richards v Richards signifcantly broaden or narrow the availability of ouster orders?
Once a marriage is terminated by court order (whether for nullity or divorce), no jurisdic-
tion under the MHA remains, although jurisdiction continues to vest in the court until the
decree absolute is granted. See P v P (Ouster; Decree of Nullity) [1994] 2 FLR 400.

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Since the decision in Richards v Richards, the courts insisted that in any case where a ques-
tion of ouster concerning married couples arises, the criteria for orders in s.1(3) of the Act
must be satisfed. This stated that:
the court may make any such order as it thinks just and reasonable having regard to the
conduct of the spouses in relation to each other and otherwise, to their respective needs
and fnancial resources, to the needs of the children and to all the circumstances of the case.
Children
It must be noted that interests of the children are not paramount. See Richards v Richards
and Gibson v Austin [1993] Fam Law 20. In practice, however, they may be extremely impor-
tant. See T v T [1987] 1 FLR 181 and Brown v Brown [1994] 1 FLR 233.
Conduct
The conduct of the parties is relevant. See Wiseman v Simpson [1988] 1 FLR 490. Indeed, the
party to be excluded must usually be more culpable. See Blackstock v Blackstock [1991]
2 FLR 308. It is most unusual for such exclusion to be granted where there has been no
violence (see Scott v Scott [1992] Fam Law 102).
Justandreasonable
Essentially, the order must be just and reasonable. See Summers v Summers [1986] 1 FLR
343. The court will also be alive to its draconian nature. See B v B (Transfer of tenancy) [1994]
Fam Law 250 in which the court reversed the lower courts decision to transfer a tenancy
(under Schedule 1 of the CA 1989) to the wife for the beneft of the children, holding that
the welfare of the children was not paramount and that the wife would be better placed
seeking alternative accommodation.
Note, however, that the superior courts will be very slow to set aside a decision of a lower
court which had considered all the evidence. The Court of Appeal has held that any change
in circumstance would have to be of such signifcance that it would have resulted in the
recorder exercising his or her discretion differently. See Brown v Brown [1994] 1 FLR 233.
4.2.2 TheDomesticViolenceandMatrimonialProceedingsAct1976
(DVMPA)
This Act (repealed and replaced by the Family Law Act 1996) was enacted as a private mem-
bers bill. Section 1 conferred upon the county court the power to make orders:
restraining the other party to the marriage from molesting the applicant
restraining the other party from molesting a child living with the applicant
excluding the other party from the matrimonial home or a part of the matrimonial home
requiring the other party to permit the applicant to enter and remain in the matrimonial
home or a part of the matrimonial home.
(The Family Proceedings Rules 1991 (FPR), r.3.9(2) provided that the High Court may also
grant an injunction in the terms of the Act.)
Matrimonial home was not defned by the Act. The child referred to need not be a child
of the family, as defned by s.52 MCA (see Chapter 7).
The following features of the 1976 Act should be particularly noted.
Relief could be sought independently of any other claim.
The remedies provided by the Act were available to a party to a marriage. This includes a
void or voidable marriage and extended to a man and a woman who are living with each
other in the same household as husband and wife. This has been interpreted to include
couples who have recently parted, as long as they were living together conjugally at the time
the alleged incidents took place and so long as relief is sought shortly after separation. See
Adeoso v Adeoso [1980] 1 WLR 1535 and compare Tuck v Nicholls [1989] 1 FLR 283. It does not ex-
tend to divorced couples who are not cohabiting but are living together under the same roof.
There was no defnition of molestation in the Act,

but it has been interpreted widely to

cover pestering, see:
Vaughan v Vaughan [1973] 3 All ER 449 (hanging posters about the wife at her place of work)
Homer v Homer [1982] Fam 90 (searching through the womans handbag)
Spencer v Camacho [1983] 4 FLR 662 (unwanted telephone calls and other general
harassment).

The FLA Part IV employs the
concept of molestation, but
leaves the concept undefned.
Accordingly, the courts
interpretation of this concept
under the DVMPA will remain
relevant.

The FLA Part IV employs the
concept of molestation, but
leaves the concept undefned.
Accordingly, the courts
interpretation of this concept
under the DVMPA will remain
relevant.
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No indication of the principles to be applied in exercising the jurisdiction were contained
in the DVMPA, but the cases indicate that the same principles apply to applications for
ouster as do applications under the MHA. See Thurley v Smith [1988] 1 FLR 490 and Wiseman
v Simpson. Thus, the order must be just and reasonable in the light of the parties conduct
in relation to each other and generally and, in the context of their respective fnancial
resources, to the needs of any children and all the circumstances of the case (s.1(3) MHA).
Accordingly, the cases decided under the pre-1996 law are relevant in this context. Non-
molestation orders appear to be granted on the basis of fairness and convenience.
An exclusion order

is considered to be in the nature of frst aid, not intensive care (see

Davis v Johnson [1979] AC 264). Further, the court was wary of assuming jurisdiction equiva-
lent to property adjustment. See ONeill v Williams [1984] FLR 1. This is especially so if the
parties are unmarried. See Spencer v Camacho.
A Practice Direction [1978] 2 All ER 1056 issued by Sir George Baker P stated that: considera-
tion should be given to imposing a time limit on the operation of the injunction. In most
cases a period of up to three months is likely to suffce, at least in the frst instance.
See also Hopper v Hopper [1979] 1 All ER 181. In exceptional cases, however, an indefnite order
may be considered just and reasonable. See Galan v Galan [1985] FLR 905 where an exclusion
order was granted until a further order was made, following numerous short-term orders.
An application for an injunction could be heard after only two days notice to the respond-
ent: County Court Rules Order 13, r.6(3). In an emergency an interim order can be obtained
ex parte, but such an order should only be made or granted if there is a real, immediate
danger of serious injury or incurable damage (see Practice Note (Matrimonial Causes
Injunction) [1978] 1 WLR 925).
Activity 4.2
What do you understand by the term molestation? Should molestation be defned in
statute? Why do you take this view?
Activity 4.3
Why is an exclusion (or ouster) order (now known as an occupation order) regarded as frst
aid rather than a long-term solution?
4.2.3 SupremeCourtAct1981
Generalpowersofinjunction
The Supreme Court Act 1981 (not repealed by the Family Law Act 1996) consolidating ear-
lier legislation and effectively supplanting what used to be the inherent jurisdiction of the
High Court (Richards v Richards), gives a general power to the court to grant an injunction
in all cases in which it appears just and convenient to do so on such terms and conditions
as the court thinks ft.
Self-assessment questions
1 What is an ex parte order?
2 What do you understand by the term inherent jurisdiction?
County courts enjoy an equivalent jurisdiction, derived entirely from statute, s.3 Courts and
Legal Services Act 1990.
Limitations
The scope for using injunctions under the Supreme Court Act 1981 is subject to limitations.
Richards v Richards makes it clear that if a married person requires an injunction to regulate
occupation of the family home, he or she must proceed under the MHA.
The power of the court to grant an injunction may only be exercised where there are
substantive proceedings in progress (or about to be initiated) to which the injunction
sought is ancillary or where the injunction sought is within the scope of the remedy sought
in the main proceedings. This will be satisfed if there are matrimonial proceedings (other
than those under s.27 MCA), proceedings under the Children Act 1989 with respect to the
residence of a child, wardship proceedings or proceedings in tort for damages for assault.

An exclusion order is an order

requiring the respondent either
to leave the matrimonial home
(see s.16(3)) or to refrain from
entering the matrimonial home.

An exclusion order is an order

requiring the respondent either
to leave the matrimonial home
(see s.16(3)) or to refrain from
entering the matrimonial home.
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There must be a suffcient link between the substantive proceedings and the injunction.
See Des Salles Depiniox v Des Salles Depiniox [1967] 1 WLR 553 where an order to vacate the
matrimonial home could not be made in proceedings founded on neglect to maintain, as
the injunction would have no effect on the husbands ability to discharge the obligation.
An injunction will only be granted in support of a recognised legal or equitable right. You
should note that this is the most important restriction on the jurisdiction and the ques-
tion of whether there is the necessary legal or equitable right in the claimant is one of
considerable diffculty. This restriction has proved problematic where claimants, without
proprietary interest, seek to oust defendants from the former shared home. See Ainsbury v
Millington [1986] 1 FLR 331, M v M [1988] 1 FLR 225 and Lucas v Lucas [1992] 2 FLR 53.
However, there is some authority which suggests that there is jurisdiction to oust where
this is in the interests and the welfare of children, even where such eviction is not in sup-
port of a sole legal right. See Wilde v Wilde [1988] 2 FLR 83 and C v K [1996] 2 FLR 506. This
approach was criticised in Gibson v Austin.
This restriction could create diffculties for an ex-spouse who is not the sole owner of the
matrimonial home and who wishes to oust his or her former spouse after decree absolute.
However courts have sometimes allowed such orders in certain circumstances (see Webb v
Webb [1986] 1 FLR 510), particularly where it is necessary to protect the children (see Quinn v
Quinn [1983] 4 FLR 394).
Diffculties were also faced by an ex-cohabitant without a sole legal right who is, in effect,
without remedy. This diffculty has now been addressed by the FLA 1996.
The jurisdiction can also be used for non-molestation orders. Here again, the injunction
must be in support of an existing legal right. See Patel v Patel [1988] 2 FLR 179, Tabone v
Seguna [1986] 1 FLR 591 and Bumett v George [1992] 1 FLR 525. Note, however, that the FLA
extends the range of eligible applicants.
Enforcement
Section 2 of the DVMPA provided that a power of arrest could be attached to an injunction
which contained a provision that:
restrains the other party to the marriage from using violence against the applicant
restrains the other party from violence against a child living with the applicant
excludes the perpetrator from the matrimonial home or from a specifed area in which the
matrimonial home is included where the judge is satisfed that: the other party has caused
actual bodily harm to the applicant or... to the child... and considers that he is likely to do so
again.
This section now only applies to injunctions issued under the Supreme Court and County
Courts Acts and, arguably, those issued under the MHA. There is no power to attach an
arrest power if the injunction does not meet the requirements of s.2 DVMPA 1976 as amend-
eded by s.63 FLA. See Re G [1982] 4 FLR 538 and White v White [1983] Fam 54. Injunctive relief
granted under the FLA has a different method of enforcement.
Bodily harm for these purposes includes real psychological harm. See Kendrick v Kendrick
[1990] 2 FLR 107. The attachment of a power of arrest is not routine. See Lewis v Lewis [1978]
1 All ER 729. It is also normally subject to a three-month time limit. See Practice Direction
[1981] 1 All ER 224.
Note that the FPR 1991 ss.3, 9(6) and (7) required a copy of the injunction to be delivered
to the offcer in charge of the police station for the applicants address. This has now been
repealed and replaced by s.47 FLA.
Activity 4.4
a What practical value does a power of arrest have?
b Should powers of arrest routinely be attached to orders?
Breach of an order is a contempt of court which may be punished by committal to prison
for a fxed term of up to two years. See George v George [1986] Fam Law 294 and Miller v Juby
[1991] Fam Law 97.

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4.2.4 PersonalprotectionandexclusionordersundertheDomestic
ProceedingsandMagistratesCourtsAct1978(DPMCA)
This Act was repealed and replaced by the Family Law Act 1996. For many years magistrates
have been empowered with a jurisdiction to protect married women from physical assault
by their husbands. The Matrimonial Causes Act 1878 introduced the concept of the non-
cohabitation order whereby magistrates could decree that a woman was no longer bound
to cohabit with her husband. Such orders were, however, of limited use since, although they
entitled a wife to live apart from her husband, he could not be excluded from the home.
In its report on Matrimonial Proceedings in Magistrates Courts (Law Com No. 77), the Law
Commission recognised this limitation, proposing both the abolition of the non-cohabita-
tion order and its replacement by two new types of order: the personal protection order
and the exclusion order. These proposals, although not the terminology suggested by the
Law Commission, were implemented by the DPMCA. A personal protection order is an order
that the respondent shall not use, or threaten to use, violence against the person of the
applicant or against the person of a child of the family (s.16(2) DPMCA). The applicant must
prove that:
the respondent had used or threatened to use violence against the person of the applicant
or a child of the family
it is necessary for the protection of the applicant (or a child of the family) that an order be
made.
The court must be satisfed that:
the respondent has used violence against the person of the applicant or a child of the family
the respondent has threatened to use violence against the person of the applicant or a
child of the family and has used violence against some other person
the respondent has, in contravention of a personal protection order, threatened violence
against the person of the applicant or a child of the family.
In all three cases it must be shown that the applicant or child of the family is in danger of
being physically injured by the respondent (or would be in such danger if the applicant or
child were to enter the matrimonial home).
Note the following points in connection with these orders:
The provisions applied only to parties to a marriage. They do not extend to cohabitees.
A power of arrest could be attached to the order if the respondent has physically injured
the applicant or a child of the family and the court considers that he is likely to do so again
(DPMCA s.18(1)). These were not routinely attached and magistrates had to give their rea-
sons for attaching such a power. See Widdowson v Widdowson [1982] 4 FLR 121. If no power
of arrest is attached, the applicant may apply for a warrant for the arrest of a respondent
alleged to have disobeyed an order (ss.18(4) and (5)). The respondent may be fned or
imprisoned.
Violence, or the threat of violence, is an essential prerequisite to the making of a personal
protection order. The DPMCA was not intended to supply remedies for psychological harm,
or for tension or friction not leading to threats of violence.
References in s.16(2) to a child were references to a child of the family, as defned in MCA
s.52 and DPMCA s.88 (see Chapter 7). Compare s.1 DVMPA where this restrictive defnition of
child does not apply.
Actual violence was an essential prerequisite for an exclusion order. In practice, this meant
that under the DPMCA no exclusion order could be made against a husband who indulges
in antisocial conduct that falls short of violence. See Horner v Horner [1982] Fam 90. The
threat of physical violence need not be immediate, however. See McCartney v McCartney
[1981] Fam 59.

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4.2.5 Reform
In Richards v Richards Lord Scarman criticised the confusing array of injunctive remedies
available in the context of domestic violence. He stated that:
the sooner the range, scope and effect of these powers are rationalised into a coherent
and comprehensive body of statute law, the better.
You should note that not only are the powers confusing, but they also leave certain indi-
viduals (such as those who live together with no element of conjugality friends, etc. who
simply share accommodation former cohabitants or lovers living apart) with no remedy
and fail to provide an adequate regime to regulate the occupation of the shared home of
cohabitants.
Comprehensive reform was proposed by the Law Commission in its draft Family Homes and
Domestic Violence Bill (Law Com No. 207, 1992). In short, the Bill proposed that non-moles-
tation orders should be available to anyone associated by virtue of a family or similar rela-
tionship, which all courts would have the power to make whenever it is just and reasonable
to do so, having regard to all the circumstances, including the need to secure the health,
safety and well-being of the applicant or any relevant child. Such orders would be available
whether or not there had been physical violence.
Courts would also be empowered to make occupation orders. These would be available
to all applicants against anyone with whom they are associated by virtue of a family or
similar relationship, where the applicant is entitled to occupy property by virtue of a
benefcial interest, contract or statutory right. This includes, under the MHA, a right which
would be extended to cohabitants if the property has been the home of both parties at
any stage. Where the applicant is not so entitled, he or she would be able to obtain such
an order against a spouse, former spouse, cohabitant or former cohabitant. The criteria for
such orders, which all courts would be empowered to grant, would be uniform, although
it is envisaged that the Magistrates Court would decline jurisdiction or transfer the case
to a county court if the determination of the right of the party to occupy was in issue.
Enforcement powers, including the attachment of an arrest power, would be strengthened
and the police would be empowered to apply for a civil remedy on behalf of the victim in
certain circumstances.
Summary
There has long been concern that the remedies available to those who suffer from do-
mestic violence are ineffective and variable. This demonstrates the laws ambivalence to
the issue. The criminal law offers protection (as in other cases of violence) and the marital
exemption to rape no longer applies. The injunctions described were a popular equitable
remedy used, at the discretion of the court, to protect the victims of domestic violence
from further abuse. The Matrimonial Homes Act 1983 dealt with the injunction, known as an
ouster order, which ousted the violent abuser from the home. The Domestic Violence and
Matrimonial Proceedings Act 1976 provided for an injunction known as a non-molestation
order. The court had a general power to issue an injunction by reference to the Supreme
Court Act 1981. Personal protection was available under the Domestic Proceedings and
Magistrates Courts Act 1978. After such a wide variety of injunctions and rememdies the
Family Law Act 1996 repealed and replaced the 1983, 1976 and 1978 legislation and consoli-
dated it into one piece of legislation. The general power under the Supreme Court Act 1981
remains.
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4.3 TheFamilyLawAct1996
Part IV of the Act, which relates to domestic violence and occupation of the matrimonial
home, came into force in 1997. You do also need to know the old case law to see how
judicial attitudes have changed or not to the issue of domestic violence.
Most, if not all, of the Law Commissions recommendations (discussed above) were enacted
into law. Most signifcant among those recommendations that were excluded were the
right of the police to intervene and pursue civil remedies on behalf of domestic violence
victims and the incorporation of same-sex relationships within the scheme of protection
relating to ouster orders (although the latter may be deemed to be included see further
below). Part IV of the FLA regulates occupation rights in the matrimonial home and extends
protection of such rights to present and former cohabitants living together as husband
and wife. Part IV also regulates non-molestation and ouster orders. The MHA has been
repealed, as have ss.1618 of the DPMCA and the entire DVMPA.
The FLA thus provides a single comprehensive scheme for protection against violence and
disputes concerning the occupation of the matrimonial home. The Act distinguishes be-
tween applicants who have an estate or interest in a dwelling house (s.33), former spouses
with no such existing right to occupy the dwelling house (s.35) and spouses neither of
whom has an entitlement to occupy a dwelling house which is or was the matrimonial
home (s.37). The Act also makes specifc provision for cohabitants or former cohabitants
with no existing right to occupy (s.36) and those cohabitants neither of whom is entitled to
occupy (s.38). The Domestic Violence, Crime and Victims Bill broadens this defnition of co-
habitants in s.62 FLA 1996 to include two persons who, although not married to each other,
are living together as husband and wife or (if same sex) in an equivalent relationship.
4.3.1 FLASection33
Applicantswithestateorinterestormatrimonialhomerights
Where a person has an entitlement to occupy a dwelling house or has matrimonial home
rights, the court may by order:
enforce the applicants entitlement to remain in occupation
require the respondent to permit the applicant to enter and remain
regulate the occupation rights of either or both parties
suspend, prohibit or restrict the exercise of the respondents right to occupy
restrict or terminate the respondents matrimonial home rights
require the respondent to leave the dwelling house or part thereof
exclude the respondent from a defned area in which the dwelling house is included.
Orders granted under this section cease upon the termination of the marriage or by the
death of the other spouse. The court is required to consider all the circumstances of the
case, including:
the housing needs and resources of the parties and any children
the fnancial resources of the parties
the likely effect of any order on the health, safety or well-being of the parties and any
relevant children and the conduct of the parties in relation to each other and otherwise.
Sub-section 7 specifcally directs the court to consider whether or not the applicant or any
relevant child is likely to suffer signifcant harm if an order is not made. If the court feels
that signifcant harm will be suffered, it must make an order unless it appears to the court
that the respondent or any relevant child is likely to suffer signifcant harm if the order is
made, and that the harm likely to be suffered by the respondent is likely to be greater than,
or as great as, the harm which is attributable to the respondents conduct which is likely to
be suffered by the applicant or any relevant child if the order is denied. This will require the
court to enter into a careful analysis of the respective harms alleged by both applicant and
respondent.

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4.3.2 Occupationordersinpracticecaselaw
There has been extensive case law since the enactment of the FLA.
In the case of B v B [1999] 1 FLR 715 the Court of Appeal allowed an appeal by a husband
against the county court judges decision to grant an occupation order to the wife. The
wife, joint tenant with her husband, had left the home because of the husbands violent be-
haviour, taking their baby with her. The husband was looking after his six-year-old son from
a previous relationship. The Court of Appeal concluded that the son was likely to suffer
harm if the order were made and that his needs at present outweighed those of the cou-
ples baby, particularly because the local authoritys duty to the husband and son would be
only temporary at best, whereas its duty to the wife and baby would be to rehouse them.
The Court of Appeal in Chalmers v Johns [1999] 1 FLR 392 continued the pre-Act approach to
ouster orders, counselling caution in:
making occupation and exclusion orders which overrode proprietary rights at the inter-
locutory stage of proceedings
ousting those with proprietary rights other than when the balance of harm test applied in
the applicants favour.
What s.33 FLA provides is that a court may make any s.33(3) order without the balance
of harm needing to come into operation, but shall make a s.33(3) order (which need not
amount to an ouster) if the balance of harm does operate.
This was recognised by the Court of Appeal in Gripton v Gripton 15/7/99 (Unreported)
in which the wifes account of two assaults upon her by the husband was accepted by
the judge, who also took account of the likely effect of any order, or any decision not to
exercise his powers, on the health, safety and well-being of the wife and her children.
The husband appealed, on the ground that the judge had wrongly included the notion of
signifcant harm in s.33(7). In dismissing the husbands appeal, the Court of Appeal referred
to the impeccable exercise of judicial discretion.
In Banks v Banks [1999] 1 FLR 726 the wife was a threat to her husband as a result of her verbal
and physical aggression but because of her mental condition, making an order to evict her
was likely to cause her greater harm than allowing her to remain would do to her husband.
Re Y (children) (Occupation Order) [2000] 2 FCR 470 considered a number of issues. Unusually,
an occupation order had been made in favour of the husband in that, in the light of his
health and disability, the balance (s.33(7)) went in his favour. On appeal, it was held that
there was no evidence that harm was attributable to the wife, as is required by s.33(7). The
exercise of discretion under s.33(6) to evict a co-owner of a matrimonial home was a dra-
conian remedy which was to be used as a last resort. It was not an order to be made lightly.
The issue should have turned not on eviction but upon whether the home was capable of
being divided so as to accommodate the parties, together with cross-undertakings.
See G v G (Occupation Order: Conduct) [2000] 2 FLR 36 on the relationship between ss.33(7)
and 33(6). On an application for an occupation order under s.33, if the court found that the
applicant or any relevant child was likely to suffer signifcant harm attributable to the con-
duct of the respondent, the court was required to make an occupation order under s.33(7)
unless the harm which would be suffered if the order was made was greater than the
harm which would follow if it was not. Even if an order under s.33(7) was not mandatory,
an occupation order could nonetheless be made in the exercise of the courts discretion
under s.33(6), in the light of the factors set out in s.33(6). In considering, for the purposes
of s.33(7), whether any harm likely to be suffered by the applicant or any relevant child was
attributable to the conduct of the respondent, the important factor was the effect of the
conduct upon the applicant or the children, rather than the intention of the respondent.
Lack of intent might be a relevant consideration, but of itself it did not mean that any such
harm could not be attributed to the respondents conduct.
Activity 4.5
Do you think these decisions suggest a growing prevalence of the rights of the victim over
the historic deference to the proprietary rights of the abuser? Do you think such a move
would be desirable?

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4.3.3 FLASection35
Formerspousewithnoexistingrighttooccupy
The disentitled former spouse may apply to the court for an order giving the applicant
the right not to be evicted or excluded from the dwelling house or any part of it by the
respondent for a specifed period and may prohibit the respondent from evicting or
excluding the applicant during that period. If the applicant is not in occupation, an order
may be made giving the applicant the right to enter and occupy for a specifed period. An
order may also:
regulate the occupation of either of the parties
prohibit, suspend or restrict the exercise by the respondent to occupy
require the respondent to leave all or part of the dwelling house
exclude the respondent from a defned area in which the dwelling house is included.
Here again the court is directed to consider all the circumstances under s.33 and must also
consider:
the length of time that has elapsed since the parties have ceased to live together
the length of time since the marriage was dissolved or annulled
whether there are pending proceedings under the MCA relating to property adjustment
orders
applications under the Children Act 1989 for property provision for a child
pending proceedings relating to the legal or benefcial ownership of the dwelling house.
The court must also, as under s.33, consider the issue of harm suffered and likely to be
suffered as a result of making an order. Orders under this section are limited to a specifed
period not exceeding six months, but may be extended on one or more occasions for a
further period not exceeding six months.
4.3.4 FLASection36
Onecohabitantorformercohabitantwithnoexistingrighttooccupy
Equivalent provisions to those under s.35 are available to cohabitants. The court is directed
to consider all the circumstances, including:
housing needs and resources, fnancial resources, the effect of any order, the conduct of
the parties and also the nature of the parties relationship
the length of time they have lived together as husband and wife
whether there are or have been any children for whom both parties have or had parental
responsibility
the length of time which has elapsed since the parties ceased living together pending
proceedings.
Again, the issue of harm must be considered as well as a balance of the harms which may
be caused to either applicant or respondent through the making of an order. Unlike s.35 or-
ders, an order under s.36 lasts for six months and may only be extended once for a further
six-month period.
4.3.5 FLASection37
Neitherspouseentitledtooccupy
Either party may apply for an order under this section and the court has power to:
require the applicant to enter and remain
regulate the occupation of the dwelling house by either or both parties
require the respondent to leave
exclude the respondent from a defned area in which the dwelling house is included.
An order under this section may last for six months and may be extended on one or more
occasions for a further period not exceeding six months. The same considerations apply as
to applicants under s.33 in relation to what the court must take into consideration.

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4.3.6 FLASection38
Neithercohabitantorformercohabitantentitledtooccupy
The same provision is made for disentitled cohabitants. The only difference in this regard is
the number of extensions to the order, which is limited to one. Both ss.36 and 38 do require
the court to consider the balance of harm test, but it also retains its discretion whether
or not to exercise its power to, for example, require the respondent to leave the dwelling
house. In the cases of spouses or former spouses, however, (even when neither is entitled
to occupy) the balance of harm in favour of the applicant obliges the court to exercise at
least one of its regulatory powers.
4.3.7 Supplementaryprovisions(s.40)
Section 40 provides that, where an order is made under ss.33, 35 or 36, the court may
impose conditions:
as to the repair and maintenance of the home or to the discharge of any mortgage or other
outgoings
to order the occupying party to make periodic payments to the other party
to grant either party possession or use of furniture or other contents
to order either party to take reasonable care of any furniture or other contents
to order either party to take reasonable steps to keep the home and contents secure.
If the parties are cohabitants or former cohabitants, the court is directed under s.41 to have
regard, when considering the nature of the parties relationship, to the fact that they have
not given each other the commitment involved in marriage.
4.3.8 Personalprotection:non-molestationordersundertheFLA(s.42)
Consistent with the Law Commissions wish to see the class of eligible applicants extended,
s.42 introduces the concept of an associated person. An associated person is defned in
s.62(3)(6), and includes:
present and former spouses
civil partners, or former civil partners
present and former cohabitants (opposite sex or same sex)
those who live or have lived within the same household other than as the others em-
ployee, tenant, lodger or boarder (this is the provision which may extend to same-sex
relationships)
relatives
engaged or formerly engaged couples
parties to a civil partnership agreement
persons who have, or have had, an intimate personal relationship with each other which is
or was of signifcant duration
parents of a child or those having parental responsibility for a child
parties to the same family proceedings (other than those under this part of the Act).
As under the DVMPA, the FLA uses the terms molestation and non-molestation order. The
courts previous interpretation of the term molestation will thus remain of importance
since the Act does not defne the term.
A non-molestation order may be made for a specifed period or until further order. A child
may apply for a non-molestation order or for an occupation order but only with the leave
of the court, which will continue to employ the tests of suffcient understanding to make
the proposed application. (See s.43 on suffcient understanding. Also see Chapters 1112 of
this subject guide.)

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4.3.9 Non-molestationordersinpracticecaselaw
Again, since the FLAs introduction, there have been a number of cases dealing with specifc
issues.
The President of the Family Division in C v C [1998] 1 FLR 554 stated that molestation had to
involve some element of deliberate conduct causing clear harassment to such a degree
that the courts intervention was necessary. The ex-wifes conduct in procuring the publica-
tion in newspapers of her (and two former wives) relationship with her ex-husband was an
invasion of privacy but was not molestation.
In Banks v Banks (see 4.3.2 above), the husbands application for a non-molestation order
was refused as the wifes behaviour towards her husband was a symptom of her mental
condition and, as she could not exercise control of those actions, an order would serve no
useful purpose.
Two cases considered the defnition and relevance of associated persons. In Chechi v
Bashier [1999] 2 FLR 489 the parties were associated but the nature of the proceedings
(predominantly tortious) meant that separate family proceedings under the FLA were not
appropriate. In G v F [2000] 2 FLR 533 the applicant had said strictly speaking, we do not
live together; the parties divided their time between each others fats. At frst instance,
it was held that they were not associated persons. On appeal it was held that the court
should give the non-molestation order provisions a purposive construction and not decline
jurisdiction, unless the facts of the case were plainly incapable of being brought within the
statute. Since Part IV of the 1996 Act was designed to provide swift and accessible protec-
tive remedies to persons of either sex who were the victims of domestic violence, where
the criteria laid down in s.62 were met, s.62(3) should not be narrowly construed so as to
exclude borderline cases.
Activity 4.6
Two men, Alistair and Tony, were in a relationship for fve years but had never lived together.
If Alistair became violent in the relationship could Tony apply for a non-molestation order
under s.42?
Jurisdiction
Orders under Part IV may be made by the High Court, county court or a magistrates court.
The Lord Chancellor may specify circumstances in which particular proceedings may be
commenced in a specifed court, and for transfers of cases between courts (s.57).
Undertakings
Where the court has jurisdiction to make an occupation order or non-molestation order, the
court may accept an undertaking from any party to the proceedings. The court shall not ac-
cept an undertaking, however, where apart from the section (s.46), a power of arrest would
be attached to the order. An undertaking is enforceable as if it were an order of the court.
InjunctivereliefavailableundertheProtectionfromHarassmentAct1997
Some people were not protected by the old provisions and would not be protected under
the 1996 Act, as in the case of Khorasandjian v Bush [1993] 3 All ER 669. This case added to the
well-documented concerns about stalking (see Masson et al., pp. 23435) and the inability of
the law of tort to fnd a tort of harassment. Therefore the Protection from Harassment Act
1997 (PHA) creates a new tort of harassment (see discussion in Khorasandjian v Bush). This
means that an injunction can be sought if there is an actual or anticipated breach under s.1.
Under this section three elements must all be proved.
The defendant must have harassed the victim.
The offence can only be committed where there is a course of conduct which must involve
conduct on at least two occasions.
It must be demonstrated that the defendant ought to have known that their conduct
constituted harassment.
Defences are available (s.1(3)).

So far there has been limited use of this form of relief, but
see Lau v DPP [2000] 1 FLR 799.

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Summary
Part IV of the Family Law Act 1996 consolidated the previous legislation and came into force
in 1997. The ouster order, as was, is now the occupation order and the criteria for it being
granted by the court is governed by ss.33, 3538 and 40 of the Act. The non-molestation
order remains and the criteria for this is governed by s.42. Molestation is once again not
defned, so reference to previous case law under the old legislation is required. If someone
falls outside the scope of the FLA then they may be able to rely on injunctive relief from the
Protection from Harassment Act 1997.
Go to your study pack and
read Domestic violence,
mens groups and the
equivalence argument by
Felicity Kaganas.
Think about how domestic
violence is often thought
to be a gender specifc
problem (men being
violent to women); how far
does Kaganas explore and
challenge any suggestion
that it is in fact a gender
neutral problem (women
being violent to men as well
as men being violent towards
women).
Go to your study pack and
read Domestic violence,
mens groups and the
equivalence argument by
Felicity Kaganas.
Think about how domestic
violence is often thought
to be a gender specifc
problem (men being
violent to women); how far
does Kaganas explore and
challenge any suggestion
that it is in fact a gender
neutral problem (women
being violent to men as well
as men being violent towards
women).
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4.4 Enforcementoforders
4.4.1 Powerofarrest
If an occupation or non-molestation order is made, and it appears to the court that the re-
spondent has used or threatened to use violence against the applicant or a relevant child
(as defned by s.62(2)), the court must attach a power of arrest unless the court is:
satisfed that in all the circumstances of the case the applicant or child will be adequately
protected without such a power of arrest. (s.47)
In the case where an ex parte order has been granted under s.45, the court may attach a
power of arrest if it appears to the court that the respondent has used violence against the
applicant or child and that there is a signifcant risk of harm to the applicant or the child
attributable to the conduct of the respondent.
Although the courts have wanted to send out a clear message that domestic violence is
not to be tolerated they have still demonstrated a willingness to keep sentences awarded
for contempt low if the sentences were deemed to be manifestly excessive. Following
three breaches of a non-molestation order under s.42 FLA in Head v Orrow [2005] 2 FLR 329,
a sentence of 12 months was reduced to nine months. But in Robinson v Murray [2006] 1 FLR
365 the Court of Appeal offered an alternative strategy where they suggested that if the
defendants actions warranted a sentence at the top end of the range (in this case there
had been three breaches of non-molestation and occupation orders) then it may be wise to
bring proceedings under the Protection from Harassment Act 1997.
In an attempt to be seen to be taking domestic violence more seriously moves have
been taken to beef up the enforcement of non-molestation orders and on 1 July 2007
SI 2007/1845 came into force which means that a breach of a non-molestation order with-
out reasonable excuse is a criminal offence punishable by up to fve years imprisonment.
It is no longer possible to attach a power of arrest to a non-molestation order. It is now an
automatically arrestable offence under s.24(1) Police and Criminal Evidence Act 1984.
4.4.2 Compensation
A victim of family violence may also be able to seek fnancial compensation from the
Criminal Injuries Compensation Board. When the criminal injuries scheme was instituted
in 1964, such cases were excluded from the operation of the scheme. Although the bar on
family applicants was removed in 1979, in practice informal rules operated by the Board
serve to limit the number of successful claims. One such rule is that the victim and offender
must no longer be living together, a rule designed to minimise collusion and to prevent
the aggressor benefting from an award to the victim. Another rule is that an award may be
refused or reduced:
having regard to the conduct of the applicant before, during or after the events giving rise
to the claim, or to his character and way of life.
A claim might be defeated under this heading where the Board considers that the violence
was provoked by the victim. (Compensation is also available in criminal actions and in a
civil action.)
4.4.3 Rehousing
Many battered women do not want to be reinstated in their former matrimonial homes
and look for rehousing in the public sector by local authorities or housing associations.
The enactment of the Housing Act 1980 and the Housing Act 1985 (now the Housing Act
1996) conferred upon tenants of local authorities secure tenancy status (i.e. rights which
in some respects resembled those enjoyed by private tenants under the Rent Acts).
Authorities can no longer fexibly switch tenancies to provide an immediate remedy in
cases of violence. Violent husbands can be excluded from council accommodation by ex-
clusion orders (discussed above) and tenancies can be transferred upon divorce under s.53
FLA, but these are procedures which must be initiated by the victim and not by the local
authority. Note that the FLA extended the courts powers to transfer tenancies.
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Any woman who has been forced to leave home, whether or not rented from the local
authority, may decide to apply to the authority as a homeless person for rehousing. The
Housing (Homeless Persons) Act 1977 imposed obligations upon local authorities to
rehouse certain classes of applicant. These duties are now contained in Part VII Housing Act
1996. An applicant for rehousing must satisfy certain criteria.
She must be homeless or threatened with homelessness (i.e. likely to become homeless
within 28 days). In deciding whether she is homeless, the local authority must consider
whether she would be at risk of violence if she returned home. See R v Broxbourne BC ex
parte Willmoth (The Times, 18 April 1989).
Some local authorities have argued that a woman staying at a refuge for battered women
is not homeless since she has the roof of the refuge over her head. This argument was
decisively rejected in R v Ealing LBC ex parte Sidhu (The Times, 26 January 1982).
The applicant for rehousing must have a priority need.
Section 175 of the Housing Act 1996 sets out the categories of priority need, three of which
are relevant in the present context.
A pregnant woman.
A woman who has dependent children residing with her or who might reasonably be
expected to reside with her.
In R v Ealing LBC ex parte Sidhu, Hodgson J disapproved of the practice, prevalent in some
local authorities, of requiring battered women to obtain custody orders before treating
them as having a priority need.
A woman who is vulnerable as a result of old age, mental illness or handicap or physical
disability or other special reason.
The Code of Guidance, published by the government and intended to be used by local
authorities as an aid to construing the Act, recommends that battered women who do
not fall within the other categories of priority need (i.e. are not pregnant and do not
have dependent children) should be treated as vulnerable for the purposes of the Act.
The applicant must not be intentionally homeless (HA 1985 s.60). The case law on inten-
tional homelessness is vast, but for present purposes it is enough to refer to the practice of
some local authorities of classifying victims of domestic violence as intentionally homeless
if they do not apply for an order excluding their violent partner from the home.
In Warwick v Warwick (1982) Fam Law 60 the Court of Appeal refused to grant an injunction
which had been sought only at the insistence of the local authority. Ormrod LJ said that the
court should not play the obscure housing-policy game of the local authority.
In Re Wandsworth LBC ex parte Nimnko-Boateng [1984] 1 Fam Law 117, however, the court
said (without considering Warwick v Warwick) that a local authority could reasonably insist
upon a wife seeking an exclusion order before considering an application to rehouse her,
even where her husband had been violent.
If a battered woman satisfes the criteria set out above, she is entitled to be rehoused by the
local authority, although if she has a local connection with the area of another local author-
ity, she may be transferred to that other authority for rehousing. If the accommodation is not
permanent or settled, she may still not be homeless. See R v Brent ex parte Awua [1996] AC 55.
4.4.4 DomesticViolence,CrimeandVictimsAct2004(DVCVA)
In order to give greater protection to victims of domestic violence and following further
criticisms of the FLA, the government decided to implement further reform. The DVCVA was
enacted in 2004 and amends Part IV of the Family Law Act 1996. Under the 1996 legislation a
cohabitant couple were not deemed to be a couple for the purposes of either non-molesta-
tion orders or occupation orders. Under the DVCVA they are now deemed a couple because
they are two persons who, although not married to each other, are living together as
husband and wife or (if the same sex) in an equivalent relationship. Unlike previously, if the
couple are non-cohabitant couples then they are now protected as the DVCVA includes as-
sociated persons who have or have had an intimate personal relationship with each other
which is or was of signifcant duration. This inclusion of same-sex couples also extends to
occupation orders so they are now entitled persons for the purposes of the order.

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The DVCVA makes it a criminal offence to breach a non-molestation order. This makes the
order a hybrid order, which is in line with other government legislation (see the anti-social
behaviour order). The Act also limits the acceptance of undertakings by the court instead of
awarding a non-molestation order.
Activity 4.7
Put yourself in the position of a court considering a non-molestation order affecting non-
married couples under the new Act. Debate the following issues with yourself (or others).
a What would you consider an equivalent relationship to marriage?
b What would constitute an intimate personal relationship?
c How long would a relationship need to have existed to be considered of signifcant
duration?
No feedback provided.
Self-assessment questions
1 Why did the government enact the Protection from Harassment Act 1997?
2 How is the new tort of harassment proven under the Act?
3 What is the meaning of violence within the context of the 1978 Act?
4 Is psychological violence covered by the Act?
5 What does the term intentionally homeless mean?
6 In what ways do local authorities seek to limit their duty to victims of domestic violence?
7 How have the courts dealt with attempts by local authorities to evade their duty under
the Housing Act 1996?
8 What difference has the Domestic Violence, Crime and Victims Act made to the position
of same-sex couples?
9 What is a hybrid order?
10 What are the main provisions of s.33 FLA?
Summary
If an occupation order or non-molestation order is made and violence has been threat-
ened or used, then the courts have the discretion to attach a power of arrest to the order.
Victims of domestic violence can also seek fnancial compensation, although there are
limits to eligibility for such awards. Rehousing can be a signifcant issue for a victim of do-
mestic violence and the eligibility for rehousing is contained in housing legislation, which
includes the Housing Act 1996.
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4.5 TheHumanRightsAct1998
It can be argued that the Human RIghts Act 1998 (HRA) is relevant to the law relating to
domestic violence in the following fve ways (see Herring, pp. 283-285).
1 An occupation order requires someone to leave their home. This would appear to confict
with Article 8 of the Convention and the respect for private life. However, paragraph 2 of
Article 8 would defeat any such claims as the order can be made with public safety in mind.
2 Article 6 requires a public hearing and yet some occupation orders are granted ex parte.
For example, an ex parte order could be heard against a violent husband without him being
present. This could arguably undermine his right to a fair trial under Article 6.
3 Article 1 of the Convention says that every person should be permitted to have peaceful
enjoyment of their possessions. Use of an occupation order could undermine this Article.
This would be justifed, though, as being in the public interest.
4 It could be argued that the law on occupation orders discriminates against unmarried
couples and is therefore in breach of Article 14. The European Court has not yet ruled that
discrimination on the grounds of marital status is per se unlawful. See Lindsay v UK (1986) 49
DR 181 but contrast with Sahin v Germany (2003) 2 FCR 619.
5 Article 3 prevents the state from subjecting its citizens to torture or inhumane treatment.
As there is a positive duty to protect the citizen from such treatment, then an occupation
order may be the only way a citizen is afforded this protection. Should a court not provide
such an order they may fnd themselves in breach of this Article.
Useful further reading
Bird, R. Domestic Violence: Law and Practice (London: Jordan Publishing, 2006)
ffth edition [ISBN 9780853089742].
Choudhry, S. and J. Herring, Righting Domestic Violence, (2006) International Journal of
Law, Policy and the Family 95.
Garlick, P. Judicial separation: a research study (1983) 46 MLR 719.
Humphries, M. Occupation orders revisited (2001) Fam Law 542.
Kaganas, F. and C. Piper, Domestic violence and divorce mediation (1994) 16
JSWFL 265.
Kay, R. Guidelines on sanctions for breach: Hale v Tanner (2001) MLR Vol. 64 No. 4, 595.
Lawson-Cruttenden, T. and N. Addison Domestic violence and harassment a considera-
tion of Part IV of the Family Law Act 1996 and the Protection of Harassment Act 1997
(1998) Fam Law 542.
Madden Dempsey M. What counts as domestic violence? A conceptual analysis, (2006)
William and Mary Journal of Women and the Law 301.
Platt, J. Human rights and Part IV of the Family Law Act 1996 (2000) Fam Law 905.
Reece, H. The End of Domestic Violence, (2006), 69 MLR 770.
Sample examination questions
Question 1 Tom and Rose met six years ago. She was living with her sister Sarah in the
house left to them by their parents when they died. Sarah had the daunting task of bringing
up her three-year-old autistic daughter, Dawn. Five years ago Tom moved into their house
and within a year he and Rose had a child, Fred. A year later their relationship deteriorated
when Sarah, who was very persuasive, and Tom, who was naturally compliant, started
having a sexual relationship. By that time Tom and Rose were hardly talking to one another.
Sarah had become very hostile towards Rose who was worried about the effect the situa-
tion was having on Fred, who seemed to be very easily affected by Sarahs behaviour. Three
weeks ago Rose decided to move out of the house temporarily and live with her brother,
Victor, and his wife. Sarah and Tom then started a campaign to convince Victor that Rose
was not ft to look after Fred. They telephoned and sent letters telling Victor about how
Rose neglected Fred and they continue to do so.

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Rose wants to move back into the house but not while Tom and Sarah are living there.
She wants an end to all the aggression and intimidation. Tom and Sarah have told Victor
that they are setting up home together there and that they intend to have Fred living with
them.
Can Roses needs be met? What action might Tom and Sarah take? Would your advice to
Rose be different if she and Tom had married four years ago?
Question 2 Since the enactment of Part IV of the Family Law Act 1996, there have been no
signifcant improvements to the state of the law prior to the Part IVs implementation.
Discuss.
Adviceonansweringthequestions
Question 1

This problem question requires a good working knowledge of the Family Law
Act 1996 and the remedies and exclusions it enjoys. As Rose wants an end to the animosity
you should consider whether she may apply to the court for a non-molestation order under
s.42 of the Act. In order to do this she must be an associated person. Consider whether she
is associated to Tom and associated to Sarah. What do the courts understand by molesta-
tion? Would Tom and Sarahs actions amount to molestation? For Rose to move back into
the house with Tom and Sarah gone she would have to apply to the court for an occupation
order. Which statutory provision applies? You should work through the different types and
notice that s.33 is the most appropriate.
Of course, Sarah also has occupiers rights to the house so she may choose to bring an ac-
tion also. Remember, though, that the orders are often seen as frst aid rather than a long-
term solution. Look at s.33(6) to see what factors the courts will consider when looking at
whether to grant an occupation order. What are each of the parties housing needs? What
are the parties respective fnancial resources? If no order is made, what impact may this
have on the parties and any children involved? Dawns autism may be relevant here. Is Tom
and Sarahs behaviour towards Rose likely to be levied against them by the court? Under
s.33(7) signifcant harm becomes an important consideration. Look at the case law here and
see if it helps. See Chalmers v Johns and G v G. It will be for you to advise the court as to what
you think their decision may be.
Tom may also bring an occupation order under s.36 and the courts would consider the
same factors. These orders can be awarded ex parte but this is unlikely here because there
is no evidence of signifcant harm being so immediate as to deny one party the right to
appear in proceedings. As to Toms position if he had married Sarah: his position would be
stronger as he would have acquired rights under s.33 and would not have to rely on the
less compelling s.36. Consider the statute here to ascertain why he would be in a stronger
position. Sections 30 and 31 may prove useful.
Question 2 This question makes a controversial statement as you would hope, as with any
law reform, that the position is better in law now than it was prior to legislative change.
Like the CA before it, the FLA was a welcome statute of consolidation. You may like to
review the old law and then be mindful of Lord Scarmans comments in Richards v Richards,
which suggested the law was a hotchpotch of enactments of limited scope. Consider the
array of powers that were available to different courts to respond to a particularly worrying
issue. Then you need to consider the Law Commissions report No. 207 which led to the
reform implemented by the 1996 Act.
Having set the scene, you would need to consider the new arrangements under the 1996
Act. Part IV deals with matrimonial home rights and it is worth looking at both the occupa-
tion (formerly termed ouster) order and the non-molestation order. First, consider the
occupation order, which is potentially quite serious as it restricts a person, sometimes with
signifcant proprietary rights, by denying them the right to exercise those rights. Look at
the different classifcation of applicants under ss.33 and 3538. Then look at the non-moles-
tation order under s.42. Look at who may apply and the discretion available under s.45.

You might fnd it useful to draw a

diagram of the relationships and
needs in a question such as this.
A short list of what the various
parties now want would also
help.

You might fnd it useful to draw a

diagram of the relationships and
needs in a question such as this.
A short list of what the various
parties now want would also
help.
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Once you have done this, you will need to look at the case law to see if things have got any
better. When looking at occupation orders, consider B v B and Chalmers v Johns. Gripton v
Gripton, Banks v Banks and G v G (Occupation Order: Conduct) may also prove useful. With
non-molestation orders look at C v C, Banks v Banks and even G v F to see how these are
working. In view of what was in place before, it would be a fair assessment to suggest
things have got better. That said, recent reform has taken place and it is worth outlining
the reforms of Part IV under the Domestic Violence, Crime and Victims Act 2004 in your
penultimate paragraph. Under this legislation the protection afforded to victims of domes-
tic violence is even greater and this is a positive note to end on. Is there, as Helen Reece
considers (Helen Reece (2006) The End to Domestic Violence 69 MLR 5, 770), now an end
to domestic violence?
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Refectandreview
Look through the points listed below:
Are you ready to move on to the next chapter?
Ready to move on = I am satisfed that I have suffcient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise frst = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
diffcult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on
Need to
revise frst
Need to
study again
I can discuss the role and effectiveness of the
criminal law in domestic violence.

I can describe the differing jurisdictions under which

court orders may be made.

I can explain the difference between the grounds for

non-molestation orders and ouster orders under the
DVMPA and the DPMCA.

I can draw up a list of the persons who may apply

under each of the Acts.

I can explain the duration of orders, particularly in

relation to ouster orders.

I can state the defnition of harassment under the

DVMPA.

I can defne the new tort of harassment under PHA.

I can consider the potential impact of the HRA on
this area of law.

If you ticked need to revise frst, which sections of the chapter are you going to revise?
Must
revise
Revision
done
4.1 The criminal law
4.2 Injunctions
4.3 The Family Law Act 1996
4.4 Enforcement of orders
4.5 The Human Rights Act 1998