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Divorce UK (England & Wales) | UK Divorce Process and Overview Explained PART 1 | BlackBeltBarrister - YouTube
Channel: BlackBeltBarrister
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Welcome back this video is an overview of
how divorce works in England and Wales but
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first of all if you're new here please like
this video subscribe and that bow icons you
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don't miss out our new videos first of all
it is always this video should not be taken
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as a replacement for formal legal advice it's
just an explainer video to go over the basic
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concepts of divorce law the person that seeks
a divorce is called the petitioner and the
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other party is called the respondent in the
proceedings ceilings can commence either by
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way of a divorce petition a dissolution petition
or a judicial separation petition in England
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and Wales there really is only one ground
for divorce and it set out in section 1 of
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the matrimonial causes act of 1973 on this
ground is that there's been an irretrievable
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breakdown of the marriage and the court cannot
rule that has been an irretrievable breakdown
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of the marriage unless one of the following
things can be shown section 1 subsection 2
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of the matrimonial causes act this could include
adultery unreasonable behaviour desertion
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two years separation with consent of the other
party all five years separation and no consent
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is required once one of these facts has been
established there is a presumption of an irretrievable
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breakdown and if it goes undefended the court
is going to accept it but in a defended case
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the respondent challenges the assertion that
there's been an irretrievable breakdown should
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also make brief reference to the divorce dissolution
and separation act of 2020 but this will not
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be in force until autumn of this year 2020
what this act is going to reform the legal
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requirements of divorce and whilst it will
retain the sole ground of irretrievable breakdown
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it will remove the need to evidence it with
each of these scenarios and instead replacing
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it with a statement the marriage has irretrievably
broken down is also going to make it possible
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for a joint application where the divorce
is mutual follow-up video specifically on
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this piece of legislation when it becomes
active later in the year but for now looking
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at these scenarios that show that the marriage
has irretrievably broken down first we look
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at adultery there are two requirements when
setting out adultery first of all establishing
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the fact that the respondent has committed
adultery and secondly that the petitioner
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finds it intolerable to continue living with
the respondent the meaning of adultery was
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set out in Clarkson Clarkson in 1930 and this
is where there was sexual intercourse between
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a man and a woman who were not married however
one of them at the time was married to somebody
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else now that there is a statutory definition
of adultery it clarifies that it can only
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be sexual intercourse between members of the
opposite sex so therefore this cannot be relied
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upon by same-sex couples but it will become
an example of unreasonable behaviour as to
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in tolerability this is a subjective test
in other words the petitioner must demonstrate
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to the court and persuade the court of the
fact that is becoming tolerable to live with
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the respondent in reality however this is
not likely to be challenged and more likely
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to be something of a formality unreasonable
behaviour is the most common basis for a divorce
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because there is no need to wait around to
prove adultery and it can be started immediately
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this is something both subjective and objective
test in other words what the petitioner thinks
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and what a reasonable person would think the
petitioner must persuade the court that it's
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become intolerable to live with the respondent
given the unreasonable behaviour complained
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of and this is generally looked at as a three
stage process first of all looking at what
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the respondent is said to have done secondly
looking at the effect that that behaviour
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has had on the petitioner in the case and
thirdly looking at whether the petitioner
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could reasonably be expected to continue living
with the respondent or whether it has indeed
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become intolerable looking at the first type
of desertion which is where the respondent
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has deserted the petitioner for a continuous
period of two years petitioner would need
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to show the following things first of all
the fact that there has been a separation
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and that there was an intention on the part
of the respondent to desert the petitioner
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that there was no agreement or consent to
the separation and there was no just cause
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for the respondent to leave in the first place
and finally that the two-year period was continuous
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and it immediately precedes the filing a court
in reality however this type of desertion
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is rarely relied upon because if parties have
separated for a continuous period of two years
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they are more likely to consent and agree
to the separation hence we have a two years
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separation with consent of the parties generally
speaking to show the separation parties will
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be living in a completely separate household
although it is possible to show that there's
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been a separation within the household but
they would have to be some level of evidence
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to show that even though they are living in
the same house they are living separate lives
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separate bedrooms and so on in other words
there must be a factual basis to show that
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there has been a separation for the continuous
period even though they are not living in
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separate households this might be the case
where one simply cannot afford to move out
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into another household until the house is
sold and the proceeds split by way of example
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and finally moving on to 5 years if the parties
have separated for a continuous period of
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five years then the petitioner does not need
the consent of the respondent the mere fact
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that there's been a separation for five years
is sufficient although there are two broad
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scenarios where respondent can object and
defend a five year separation divorce firstly
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an outright denial that there's been a separation
for the continuous five years that is required
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and secondly that there might be a grave hardship
on the respondent in that they will greatly
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suffer at the result of this divorce and looking
at a defence of grave hardship and whether
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or not it applies like many other cases the
court is going to consider all the circumstances
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of the case including the behaviour of the
parties before making a decision as to whether
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or not it applies in the instant case by way
of summary until the new law kicks in there
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is only one main ground for divorce and that
is the relationship has irretrievably broken
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down and that the petitioner cannot be expected
to tolerate living with the respondent and
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this is shown either by way of adultery unreasonable
behaviour desertion for the period of two
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years two years separation with consent which
is more common or five years separation without
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consent is necessary from the respondent provided
there is no valid defence brought to court
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in which case the court may refuse to grant
a five year separation in those very rare
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cases just briefly addressing the one this
is fairly simple that is that a divorce petition
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cannot be filed at court until at least one
year of the marriage as a lapsed per section
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3 of the MCA this rule cannot be waived in
any circumstances if you find yourself in
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this one you.
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And you simply cannot wait there are two areas
that you can seek formal advice on but there
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are a little bit beyond the scope of this
video but maybe for a later video the first
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one will be a decree of judicial separation
the second would be a decree of nullity broadly
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speaking these allow the court to make financial
orders and children orders within that first
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year briefly looking at same-sex marriage
and same-sex divorce this was dealt with in
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the marriage of same-sex couples act of 2013
which came into effect in 2014 which set out
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the provisions for marriage between same-sex
couples in England and Wales and after divorce
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of same-sex marriages the legal requirements
are broadly the same with that exception of
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adultery that I mentioned earlier in the same
sex parties that were married outside of England
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and Wales the procedures and the rules are
exactly the same as though they were married
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in England and Wales and similarly for a civil
partnership and dissolution of the civil partnership
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again the rules are broadly the same as I
just outlined when it comes to jurisdiction
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for the court to hear divorce proceedings
one of the following things must apply under
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section 5 of the domicile and matrimonial
proceedings act 1973 one or more of the following
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things must apply either that the spouses
are habitually resident in England and Wales
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are comeback to habitually resident in a moment
secondly that they were both last habitually
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resident in England and Wales and one of them
continues to live there thirdly that the respondent
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his habitually resident in England and Wales
it might be that the applicant is habitually
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resident in England and Wales and resided
there for at least one year before the application
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it might be that the applicant is domiciled
and habitually resident in England and Wales
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and resided there for at least six months
immediately before the application both spouses
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might be domiciled in England and Wales for
either spouse is domiciled in England and
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Wales to let's look at those terms and break
those down so habitually resident this is
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a complex term and it can take different forms
depending on the situation and how you looking
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at it for example it is possible to be habitually
resident in one country but resident in another
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country for example where parties have more
than one property and they spend a lot of
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time in each property it will need to be deciding
which of them is the habitual residence in
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other words where they are spending the majority
of their time for their core every day activities
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daily lives even if they are spending lots
of time in another location it will need to
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be decided which is the primary habitual residents
before the court is able to determine jurisdiction
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to hear the divorce proceedings with regard
to domicile again this is not particularly
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straightforward and there are three types
of domicile the easiest way to think about
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domicile a little bit like habitual residence
is the country that the party considers to
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be their primary and main home they can also
be domicile of origin that's where the person
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was born and if the parents were married where
the father was born there can be domicile
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of dependence that's where an unmarried child
is dependent on father's domicile if the parents
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are married the mother's domicile if the parents
are not married and finally there's domicile
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of choice which is a decision people can make
from the age of 16 and all of these issues
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are important when deciding where to issue
divorce proceedings because as I said the
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course will need to decide that it has jurisdiction
to hear the case before you file petition
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said that a brief overview of divorce law
in England and Wales at least until the new
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law kicks in in the autumn but please do drop
your questions and comments below but please
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do not take this video or anything else that
you read online as for legal advice you do
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need to go and see a lawyer and sit down properly
and seek formal advice in the meantime thanks
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for watching Sia
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