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This advice will address the legal issues faced by Linda concerning her desire to divorce her husband, David, secure arrangements for their children, and obtain a share of the matrimonial property. The advice is based on the law of England and Wales and will be structured into three main sections: the process for obtaining a divorce, the arrangements for the children, and the division of matrimonial property.
Grounds and Procedure for Divorce
Linda wishes to obtain a divorce from David. The legal framework for divorce in England and Wales has recently undergone significant reform, moving from a fault-based system to a no-fault system. The governing statute is the Matrimonial Causes Act 1973 (MCA 1973), which has been amended by the Divorce, Dissolution and Separation Act 2020 (DDSA 2020). This new law came into force on 6 April 2022 and will apply to Linda’s case.
Under the new law, the sole ground for divorce remains that the marriage has irretrievably broken down (MCA 1973, s.1(1)). However, the method of proving this has changed. Previously, the applicant had to rely on one of five ‘facts’, three of which were based on fault (adultery, desertion, unreasonable behaviour) and two on periods of separation. This often created unnecessary conflict between the parties (Trinder et al., 2017). The DDSA 2020 has removed this requirement.
Now, an application for a divorce order must be accompanied by a statement by the applicant, or applicants, that the marriage has broken down irretrievably (MCA 1973, s.1(1)(a)). This statement is taken as conclusive evidence of the breakdown, and the court must accept it (MCA 1973, s.1(3)). The ability of the other party to contest the divorce has been almost entirely removed, with challenges only possible on very limited procedural grounds, such as the validity of the marriage or a lack of jurisdiction.
Therefore, to answer the question posed directly, the ground for divorce is the irretrievable breakdown of the marriage. For Linda, this is established simply by her making a statement to that effect in her divorce application. David’s abusive behaviour and his failure to provide maintenance, while highly relevant to other aspects of the separation, are not required to start or finalise the divorce itself.
The procedure Linda would follow involves these key stages:
1. **Application:** Linda can make a sole application for a divorce order, stating that the marriage has broken down irretrievably.
2. **Period of Reflection:** Once the application is issued by the court, a minimum period of 20 weeks must pass. This is intended to be a ‘period for reflection’ before the applicant can confirm they wish to proceed (MCA 1973, s.1(5)).
3. **Conditional Order:** After the 20-week period, Linda can apply for a conditional order (previously known as the decree nisi).
4. **Final Order:** A further period of at least six weeks must pass after the conditional order is made before an application can be made for the final order (previously the decree absolute), which legally ends the marriage.
This new process is designed to be less confrontational and allows individuals like Linda to end a marriage without needing to place blame on their spouse in the legal documentation for the divorce itself.
Arrangements for the Children
When parents separate, the court’s primary concern is the welfare of any children of the family. The legal term ‘custody’ is no longer used; instead, the court makes ‘Child Arrangements Orders’ under the Children Act 1989 (CA 1989). These orders determine with whom a child is to live and the time they will spend with the other parent.
The guiding principle for the court in any decision relating to a child’s upbringing is the ‘welfare principle’ found in section 1(1) of the CA 1989, which states that the child’s welfare shall be the court’s paramount consideration. To apply this principle, the court must consider the ‘welfare checklist’ in section 1(3) of the Act. This includes:
* The ascertainable wishes and feelings of the children concerned.
* Their physical, emotional and educational needs.
* The likely effect on them of any change in their circumstances.
* Their age, sex, background and any other relevant characteristics.
* Any harm which they have suffered or are at risk of suffering.
* How capable each of the parents is of meeting their needs.
In Linda’s case, David’s abusive behaviour is a critical factor, specifically in relation to the ‘harm’ element of the checklist. If David has been abusive towards Linda, the court will be concerned about the direct or indirect effect this has had, or could have, on the children. The court also operates under a statutory presumption, introduced by the Children and Families Act 2014, that the involvement of a parent in a child’s life will further their welfare, provided that parent’s involvement does not put the child at risk of suffering harm (CA 1989, s.1(2A)).
Given David’s abusive behaviour and his failure to maintain the family, it is highly likely that a court would order that the children live with Linda. She has been their primary carer, and this stability would be a key consideration. The court would then need to decide on the arrangements for the children to spend time with David. If there are concerns about the children’s safety, the court could order that any contact be supervised, at least initially, until it is satisfied that David does not pose a risk to their emotional or physical wellbeing. Linda should seek a Child Arrangements Order to formalise these matters.
Division of Property and Financial Remedies
Upon divorce, the court has wide powers under Part II of the MCA 1973 to redistribute the parties’ property and financial resources to achieve a fair outcome. The court’s duty is to consider all the circumstances of the case, with the first consideration being the welfare of any minor children of the family (MCA 1973, s.25(1)).
The court will then have regard to the specific factors listed in section 25(2) of the MCA 1973. For Linda, the most relevant factors will be:
* The financial needs of both parties, particularly the need for housing. The need to provide a home for the two children will be a priority.
* The financial resources of the parties, including their income, earning capacity, and property.
* The standard of living enjoyed by the family before the breakdown of the marriage.
* The contributions each party has made to the welfare of the family, including looking after the home or caring for the family. The law recognises that the contribution of a homemaker and carer is of equal value to that of the financial breadwinner, a principle established in the landmark case of *White v White* [2001] 1 AC 596.
* The conduct of each party, but only if that conduct is such that it would be ‘inequitable to disregard it’ (s.25(2)(g)). The threshold for this is very high, often referred to as the ‘gasp’ factor (*Wachtel v Wachtel* [1973] Fam 72). David’s abuse may meet this threshold if it was particularly severe or has had a financial impact on Linda, such as affecting her ability to work.
A crucial issue is David’s sale of the matrimonial home without Linda’s consent. The proceeds from the sale of a matrimonial home are a key matrimonial asset subject to division. David’s action in selling the property and, presumably, attempting to keep the proceeds for himself would be viewed extremely seriously by the court. This could be classed as ‘conduct’ that is inequitable to disregard. It also constitutes a dissipation of assets. A court has the power to make an order that ‘adds back’ the value of the dissipated asset into the matrimonial pot and sets it against David’s share of the remaining assets (Gilmore and Glennon, 2018). If Linda had registered her matrimonial home rights under the Family Law Act 1996, the sale may have been prevented, but even without this, the court will seek to ensure David’s actions do not defeat Linda’s claim.
The starting point for the division of matrimonial assets is the ‘yardstick of equality’ (*White v White*). The court will aim for an equal division unless there is a good reason, based on the s.25 factors, to depart from it. In this case, the overwhelming need to house Linda and the children may justify a departure from a 50/50 split of capital in her favour, at least initially. Linda also has a claim for maintenance for herself (spousal maintenance) and for the children (child maintenance), especially given David’s failure to provide support for the last year.
In conclusion, Linda has a strong legal position. She can obtain a divorce without needing to prove fault. She is likely to be awarded a Child Arrangements Order for the children to live with her, with any contact with David being carefully managed to ensure the children’s safety. In relation to the finances, the court will prioritise the children’s housing needs, and Linda’s contributions as a mother will be fully recognised. David’s conduct in selling the house will significantly weaken his position, and Linda has a strong claim to a substantial share of the family’s assets, including the proceeds from the house sale.
References
Gilmore, S. and Glennon, L. (2018) *Hayes and Williams’ Family Law*. 6th edn. Oxford: Oxford University Press.
Trinder, L., et al. (2017) *Finding Fault? Divorce Law and Practice in England and Wales*. Nuffield Foundation.
**Cases**
*White v White* [2001] 1 AC 596
*Wachtel v Wachtel* [1973] Fam 72
**Legislation**
Children Act 1989
Children and Families Act 2014
Divorce, Dissolution and Separation Act 2020
Family Law Act 1996
Matrimonial Causes Act 1973
