The grounds for divorce are set out in Article 41.3.2 of the Constitution and are reflected in s.5 of the Family Law (Divorce) Act 1996. These are:
- The parties have lived separate and apart for four out of the last five years.
- There is no reasonable prospect of a reconciliation between them.
- That proper provision has been or will be made for the spouses and the children.
The obligation to make proper provision for children is confined in the 1996 Act to dependant children and a child is generally considered to be dependant until he or she reaches 23 years of age or finishes in fulltime education, whichever is the earlier.
On granting a divorce the Court must make proper provision for the spouses and any dependant children. When determining what constitutes proper provision the Court must have regard to all the circumstances but in particular certain factors which are set out in the relevant legislation, the Family Law (Divorce) Act 1996.
The main factors which are taken into account are the following:
- The amount and nature of the assets of the parties.
- The amount and nature of the income of the parties.
- The needs of the parties and of their children.
- The length of the marriage.
- The contributions which each party has made to the marriage, for example by working either within or outside the home.
- The standard of living enjoyed by the parties prior to separation.
- The health of the parties.
- Any benefits to which either party may be entitled.
- The conduct of the parties if it would be contrary to justice to ignore such conduct.
- The rights and interests of third parties.
The court makes proper provision for the spouses and any dependant children by way of ancillary orders, the most important of which are the following:
- A Periodical Payments Order – this requires a spouse to pay a certain amount per week or per month in respect of the other spouse and/or any dependant children. Children are considered to be dependant until they reach 23 years of age or finish in fulltime education, whichever is the earlier.
- A Secured Periodical Payments Order – this is the same as a periodical payments order except payment is secured against a fund or a property which can be drawn upon or sold if there is default in payment.
- A Lump Sum Order – This requires a spouse to pay a lump sum or lump sums to the other spouse in respect of himself/herself and/or any dependant children.
- A Property Adjustment Order – This directs a spouse to transfer a property or properties to the other spouse and/or dependant children.
- A Pension Adjustment Order – This requires a spouse to transfer all or sum of a pension to the other spouse. The order can cover not only a pension paid after retirement but also a benefit payable in the event of death prior to retirement.
- A Financial Compensation Order – This requires a spouse to put in place or to maintain in place an insurance policy in favour of the other spouse. This can sometimes be used to ensure that a spouse and/or children are properly provided for in the event of the death of the other spouse.
- A Custody or Access Order – This is an order directing who is to have custody of the children and what arrangements are to be in place in regard to access to them.
- An Order in regard to Succession Rights – Following judicial separation the court can direct that the right of one or both spouses to an automatic share in the estate of the other should be extinguished and can also direct whether a spouse should be allowed to seek provision out of the estate of the other. Following divorce the right of a spouse to an automatic share in the estate of the other is ended but the court can direct whether a spouse can seek provision out of such estate.
In most divorce cases there is no international dimension but where there is the rules in regard to which country should deal with the matter is set out in an E.U. Regulation, Number 2201/2003. The basic rule is that the place where the spouses are habitually resident has jurisdiction to hear their divorce. If a court has jurisdiction under the Regulation to grant a divorce then the other countries of the European Union are obliged to recognise and enforce that divorce. In cases which are not governed by the Regulation, the normal rule is that a foreign divorce is entitled to recognition and enforcement if at the time of the commencement of proceedings either party was domiciled in the country where the application is brought. Domicile denotes residence with an intention to permanently reside.
In this country both the Circuit Court and the High Court have power to deal with divorce cases. Most are brought in the Circuit Court, other than cases where there are very considerable assets or income, which are termed “ample resources” cases. If the case is originally heard in the Circuit Court then there is an appeal to the High Court where a full re-hearing takes place. If the case is originally heard in the High Court there is an appeal to the Supreme Court but this is based on a transcript of the evidence which was given in the High Court.