This assignment will explain four fundamental concepts in English law: divorce, the irretrievable breakdown of marriage, the distinction between void and voidable marriages, and the principles of inheritance and succession. The explanation will refer to relevant statutes and case law to illustrate the legal principles.
1. Divorce
Divorce is the legal process of terminating a marriage. In England and Wales, the legal framework for divorce was significantly reformed by the Divorce, Dissolution and Separation Act 2020 (DDSA 2020), which came into force on 6 April 2022. This Act amended the Matrimonial Causes Act 1973 (MCA 1973) and introduced a 'no-fault' system for divorce.
Under the new law, an application for divorce can be made by one or both spouses jointly. The applicant(s) must provide a statement that the marriage has broken down irretrievably. This statement is now taken as conclusive evidence of the breakdown, and the court is no longer required to investigate the reasons for it. This removes the previous requirement to assign blame, such as adultery or unreasonable behaviour, which was a source of conflict and distress. The process involves a minimum period of 20 weeks from the start of proceedings to the granting of a 'conditional order' (previously the decree nisi), allowing for a period of reflection. After a further six weeks, a 'final order' (previously the decree absolute) can be applied for, which legally ends the marriage.
2. Irretrievable Breakdown of Marriage
The sole ground for divorce in England and Wales remains that the marriage has broken down irretrievably (MCA 1973, s.1(1)). However, the method of establishing this ground has been fundamentally changed by the DDSA 2020.
Previously, the petitioner had to prove the irretrievable breakdown by establishing one of five ‘facts’: adultery, unreasonable behaviour, desertion, two years’ separation with consent, or five years’ separation without consent. This could lead to difficult and painful court battles. The case of Owens v Owens [2018] UKSC 41 is a key example of the problems with the old law. Mrs Owens petitioned for divorce based on her husband's unreasonable behaviour. The Supreme Court, while acknowledging the marriage was over in reality, felt unable to grant the divorce because the specific examples of behaviour cited were not deemed sufficiently 'unreasonable' to meet the legal test. Mrs Owens was therefore forced to remain married until she could rely on five years of separation. The DDSA 2020 was enacted in response to such cases, removing the need to prove any of these facts and instead allowing a simple statement of breakdown to suffice.
3. Void and Voidable Marriages
A marriage may be legally defective from the outset. The law distinguishes between void and voidable marriages.
A void marriage is one that is considered never to have taken place. It is invalid ab initio (from the beginning), and no legal decree is strictly necessary to end it, although a decree of nullity is often sought for certainty. The grounds for a void marriage are set out in section 11 of the MCA 1973. These include:
- The parties are within the prohibited degrees of relationship (e.g., incest).
- One party is under the age of 18.
- The parties failed to comply with the formalities of marriage.
- One party was already lawfully married to someone else (bigamy).
A voidable marriage, by contrast, is a valid marriage that can be cancelled or annulled at the request of one of the parties. It remains valid until a decree of nullity is granted. The grounds for a voidable marriage are listed in section 12 of the MCA 1973 and include:
- Non-consummation of the marriage due to incapacity or wilful refusal.
- Lack of valid consent from one party, for example due to duress, mistake, or unsoundness of mind. In Hirani v Hirani (1983) 4 FLR 232, a marriage was found voidable because the woman only consented due to threats from her parents.
- One party having a communicable venereal disease at the time of marriage.
- The respondent being pregnant by another man at the time of marriage.
4. Inheritance and Succession
Inheritance and succession concern the transfer of a person's property (their estate) after they die. There are two main ways this can occur.
Testate succession is where the deceased left a valid will. The Wills Act 1837 sets out the formal requirements for a will to be valid, such as that it must be in writing and signed in the presence of two witnesses. The will appoints executors to manage the estate and specifies beneficiaries who will inherit the property. The deceased's wishes are generally paramount.
Intestate succession occurs when a person dies without a valid will. In this situation, the distribution of their estate is governed by statutory rules, known as the intestacy rules, found in the Administration of Estates Act 1925 (as amended). These rules provide a strict hierarchy of who inherits, starting with the surviving spouse or civil partner, followed by children, parents, siblings, and other relatives. If no relatives can be found, the estate passes to the Crown.
In both situations, the law provides a safety net through the Inheritance (Provision for Family and Dependants) Act 1975. This Act allows certain categories of people, such as spouses, children, and cohabitants, to apply to the court for 'reasonable financial provision' from the estate if the will or the intestacy rules fail to provide for them adequately. The Supreme Court case of Ilott v The Blue Cross [2017] UKSC 17 highlighted the balancing act the court performs between respecting the deceased's testamentary freedom and making provision for a claimant with a genuine financial need.
References
Hirani v Hirani (1983) 4 FLR 232
Ilott v The Blue Cross [2017] UKSC 17
Owens v Owens [2018] UKSC 41
Administration of Estates Act 1925
Divorce, Dissolution and Separation Act 2020
Inheritance (Provision for Family and Dependants) Act 1975
Matrimonial Causes Act 1973
Wills Act 1837
