Marriage v divorce in the eyes of the law

The old laws state that a voidable marriage must have certain ground rules. These are;

  • Both parties must be aged 16 or over
  • Not have a close blood relationship
  • Be single (not already married)
  • Be one man and one woman (not same-sex couple).
Obviously, times have changed and the last rule is slightly different in regards to same-sex couples having the opportunity to a civil partnership.
However, this isn’t the only rules the law have applied to marriages. There are also rules regarding what a voidable marriage is. The law will class a marriage as voidable marraige as being  “one which is valid at the time of the ceremony of marriage, but because of a factor, one or both of the parties may apply to the court for the marriage to be annulled (aka declared invalid).  An annulled marriage is not considered to be a divorce.
The main reasons for applying for an annulment are;
  • Non consummation
  • No consent
  • Mental disorder making the person unfit for marriage
  • One party was suffering from a sexual disease and the other party did not know this.
  • The bride was pregnant at the time of the marriage by another man.
The factors all seem fair enough, apart from the last one. Why should it be women who are the reason for an annulled marriage? Why can’t the law have added a factor in about if a man is having an affair?
And I don’t really think it is fair that there can be an annulment if “the marriage has not been consummated because of incapacity or wilful refusal”.  This means that you can have your marriage annulled of the other party does not have sex with you, even if it is due to them not being able to do so, or if they point blankly refuse.
There are also time limits for annulment, which is that application for annulment must be made within three years after the marriage ceremony.  However the time limit can be extended if the petitioner is suffering from a mental disorder.
The court can refuse an annulment if they think that the petitioner has behaved in such a way that has lured the other party into the marriage under false pretences. For example, a husband who knew his wife was incapable of sexual intercourse, and knew he could get an annulment on the grounds of this, but they had an adopted child together. The court would no grant the annulment. The court can also refuse to annul the marriage if they think it is unjust to the other party.
This part is weird, because an annulment is going to be unjust to the other party which ever way you look at it. They have gone through the whole wedding ceremony just for the marriage to be annulled because of one of the laws ‘factors’.  Yes, if there has been no consent of both parties, then a marriage should be annulled, but I do not agree with the other factors. If you are serious enough about marriage then you should follow through with it after the ceremony. There should be no easy way out.
However, since 2005, the law has allowed same=sex couples the right to register for a civil partnership. This means that the couple will have all the rights and responsibilities of a married couple, but they will not actually be married. There is also a ground rule for a civil partnership;
  • Both parties must have resided in England and Wales for at least 7 days before giving notice of their intention to form a civil partnership.
After applying for a civil partnership they must wait 15 days before the registration can take place, which is a civil ceremony conducted by a registrar. Unlike married couples, both parties of a civil partnership must sign a registration document as opposed to a wedding certificate.
But if the law has so much input on how people can get married and the ground rules for marriage then surely there have to ground rules set for divorce too? Well there is, and this is where it becomes complicated.
If one of the parties is serious about filing for divorce then there must be an irretrievable breakdown of the marriage. And in order to prove that the marriage has broken down the petitioner must establish one of five facts.
  1. Adultery by the other spouse and that the petitioner finds it intolerable to live with the other spouse.
  2. Unreasonable behaviour by the other spouse.
  3. Desertion for at least 2 years.
  4. The parties have lives apart for a period of at least 2 years and the other party consents to a divorce.
  5. That the parties have lived apart for at least 5 years.
I get the adultery part, that is obvious, but the unreasonable behaviour fact is a little vague as it covers areas from child abuse to one of the parties being obsessively jealous. However, there is no excuse for being obsessively jealous and if one party is making the other party’s life unbearable due to this then I fully sympathise with the divorce. Who wants to be married to a paranoid looney tune?
Once the divorce has been applied for, and the court is satisfied that there are reasonable grounds for the divorce and one of the five facts have been proven, they will then grant a decree nisi of divorce. This does not end the marriage, this is only a stage on the way to the final divorce.
Both parties must then wait a further six weeks before they can apply for the decree to be made absolute. The decree absolute is what ends the marriage, and will only be granted if the court is satisfied with the arrangement for the welfare of any children under the age of 16.
That all seems fair enough, but there are also financial aspects of divorce to consider. When there are divorce proceedings, either party can apply for various financial orders to be made by the court. The court then have power to award;
  • Maintenance by one spouse to the other
  • Maintenance payments for any dependant child
  • A lump-sum payment to the other spouse or child
  • A transfer of property order, which would usually be the family home.
The rules about child maintenance are obvious, the child is the innocent party and must not, in any way, be punished for their parents decision to get divorced. But if there are no children, I do not see why one party must pay the other maintenance. At the end of the day, if one party has had to apply for divorce due to unreasonable behaviour, they shouldn’t have to pay the other party for that. It is just wrong.
However, the maintenance payments do not last long as a clean break is encouraged, so the financial obligations will end as soon as it is reasonable after the decree of divorce.
There is a rule for maintenance payments. This is the ‘one-third rule’, which is where the income of both parties is added up then divided by three. For example, husbands income: £6,000 plus wife’s income: £750, would equal £6,750.  Divide the total of £6,750 by 3 and you get £2,250.
This means that the wife was already earning £750 so take that away from £2,250 and the amount required to make the wife’s income to £2,250 is £1,500. Which means that under the ‘one-third rule’, the husband would be ordered to pay maintenance of £1,500 per year to his wife.
And if that is not confusing enough, there are also different rules for the payments of child maintenance and property adjustment orders. The parent who does not have the day-to-day care of the child must pay maintenance to the other parent. These payments can be made privately between the parents or the Child Support Agency can be used to decide the amount of maintenance.
For property adjustment orders the rules are that there is usually only ever one asset in a marriage and that is the family home, which the court can make transfer of ownership to the other spouse. Normally the house will be sold and the proceeds of the sale will be shared between both parties.
Where there are children involved, and when the parents cannot decide on what should happen to their dependant children, the court will the refer to the Children Act 1989, and the court will look at;
  1. The child’s own wishes
  2. The child’s physical, emotional and educational needs
  3. The child’s age, sex, background and any other relevant conditions
  4. Any harm the child has suffered or may suffer in the future
  5. How able the parents are to meet the child’s needs
  6. How the child may be affected by any change in circumstances
Once a decision has been made the court will then make a number of orders regarding the child living with either parent; The court orders are;
  • Residence order, where the child should live
  • Contact order, allowing the child to have contact with the other parent
  • Prohibition order, which means a parent cannot take a child abroad without getting permission from the court
  • Specific Issue order, where the parents cannot make a decision, for example, which school the child should attend
And after all of that, then both parties are able to move on and start fresh lives. If they aren’t too exhausted from all of the divorce proceedings and court orders, that is.
So, this makes me wonder why people bother getting married, There is a risk with everything people do, but to get married is the biggest. What if it doesn’t work out? What if the marriage completely breaks down and there are children involved? Most people would rather try and patch up the differences rather than go through the whole daunting procedure of divorce, especially where children are involved.
Want my opinion? Don’t get married… It is so much easier to break up a relationship than a marriage. And a lot less hassle.

9 comments on “Marriage v divorce in the eyes of the law

    • Hi, I am not an expert on it but I have studied it. I am a law student and once I have completed my degree I am thinking of going into family law but to do wills and probate instead if divorce. 🙂

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