WEEK 8 Divorce and the family home

Historical context of divorce

Pre-1857 Divorce Law

• Before mid-19th century, a full divorce (allowing remarriage) was only obtainable by Private Act of Parliament.

• Between 1700–1857, only 314 such Acts were passed — mostly initiated by husbands.

• Grounds for divorce:

  • Husbands = adultery alone.

  • Wives = adultery plus life-threatening cruelty.

• Cost: Extremely high (estimated £200–£5000), meaning only the wealthy could afford divorce.

Ecclesiastical Courts (pre-1857)

• Had sole jurisdiction over marriage disputes before the Matrimonial Causes Act 1857.

• Could grant:

  • Annulment – marriage voided; parties could remarry.

  • Separation (a mensa et thoro) – couple lived apart but could not remarry.

• A determined and wealthy spouse could combine:

  1. Separation from ecclesiastical court,

  2. Petition to Parliament for full divorce.

R v Hall (1845)

• Case demonstrated the inequality and impracticality of the existing divorce system.

• Mr Justice Maule highlighted that even though the legal route to divorce was “open to all,” in reality the poor could not afford it (costs around £500–£600).

• Hall’s inability to afford divorce led to his conviction for bigamy — illustrating the class disparity in access to marital dissolution.

• The case became symbolic of the need for divorce law reform.

• R v Hall and similar cases drew attention to the cost, complexity, and inequity of divorce procedures.

• The public outcry contributed to the Matrimonial Causes Act 1857, which transferred jurisdiction from ecclesiastical courts to a civil court system — making divorce more accessible and affordable.

Initial implementation of the Matrimonial Causes Act 1857

The Matrimonial Causes Act 1857 established a civil court empowered to dissolve marriages under specific conditions.This marked the transfer of jurisdiction from ecclesiastical courts to a secular legal system.

Grounds for Divorce

• Adultery was the only recognised ground for divorce.

  • Husbands – needed to prove simple adultery.

  • Wives – had to prove adultery plus an additional marital offence (e.g. cruelty or desertion).

• The court also retained the power to grant annulments and judicial separations (as ecclesiastical courts had done).

Access and Geography

• The court sat only in London, disadvantaging those living outside the capital and surrounding counties.

• This limited accessibility meant divorce remained urban- and wealth-biased despite the reform.

Costs and Accessibility

• Legal costs were £40–£60 — far cheaper than a private Act of Parliament but still prohibitively expensive for much of the working class.

• Thus, divorce remained largely middle-class in practice.

Collusion and Regulation

• During the waiting period before a divorce became final, the court investigated potential collusion between spouses.

• If collusion was suspected or proven, provisional decrees could be rescinded.

• This reflected ongoing moral and procedural control over access to divorce.

Matrimonial Causes Act 1857

• Created a court to dissolve marriages

• Husbands on the grounds of adultery

• Wives on the grounds of adultery +another marital offence ( e.g. cruelty or desertion).

• Only in London, costing £40-60

Divorce, Dissolution and Separation Act 2020 (in force 6 April 2022) 

• Amended s1 Matrimonial Causes Act 1973.

• Section 1(1): Either or both parties may apply for a “divorce order” dissolving the marriage on the ground of irretrievable breakdown.

• Section 1(2): This breakdown is evidenced solely by a statement from the applicant(s).

• Introduces “no-fault divorce” — no need to prove adultery, behaviour, or separation.

• Allows joint applications, encouraging cooperation.

• Aims to make divorce simpler, less adversarial, and more accessible.

Impact on the Family Home:

• Reduced conflict allows earlier and more constructive settlement of property and housing arrangements.

• Supports a modern understanding of the family home as part of shared marital assets, rather than a possession tied to marital fault or gender.

Matrimonial Causes Act 1973 (property adjustment and orders for sale) 

Section 24 = Property Adjustment Orders

Purpose = empowers the court to redistribute property between spouses (or for the benefit of children) upon divorce, nullity, or judicial separation.

Key Powers of the Court = when granting or after granting a divorce, the court may order:

1. Transfer of Property

   • One spouse may be ordered to transfer property to the other, to a child of the family, or to a third partyfor a child’s benefit.

   • Property can be held in possession or reversion (i.e. current or future interest).

2. Settlement of Property –

   • The court can require that property be settled (e.g. placed in trust) for the benefit of the other spouse and/or children.

3. Variation of Settlements –

   • The court can vary ante-nuptial or post-nuptial settlements (including those created by will) to benefit either spouse or children.

   • Pension arrangements are excluded (dealt with under s.25D).

4. Extinguishment or Reduction of Interests –

   • The court can remove or reduce one party’s interest under a marital settlement (except pension schemes).

Effect = Enables fair redistribution of property and financial resources following divorce.Central to resolving ownership and occupation of the family home.

Section 24A = Orders for Sale of Property

Purpose= allows the court to order the sale of property (e.g. the matrimonial home) to give effect to financial or property orders made under ss. 22ZA, 23, or 24.

Key Points:

1. The court can order the sale of specified property in which either or both spouses have a beneficial interest.

2. The order may be made at the same time as, or after, other financial or property orders.

3. The court may include supplementary provisions, such as:

   • (a) How the proceeds of sale are to be distributed or used (e.g. payments to one spouse or for children).

   • (b) Requiring that the property be offered for sale to a specified person or group (e.g. allowing one spouse first refusal).

Effect = ensures practical enforcement of property adjustment orders. Allows the court to liquidate property assets to achieve financial fairness.Commonly used where the family home must be sold to divide proceeds or meet maintenance/lump sum obligations.

Judicial powers of financial re-distribution

• Under the Matrimonial Causes Act 1973 (and Civil Partnership Act), the court has very broad powers to redistribute property and finances on divorce — regardless of who originally owned what.

• Judges aim to achieve fairness and future provision, not strict adherence to legal ownership.

• Lord Denning (Hanlon v Law Society [1980]):

  • The court gathers all rights and obligations (home, maintenance, etc.) and redistributes them between spouses to ensure fair provision.

  • Legal or equitable ownership is secondary to fairness.

• Lord Scarman (Minton v Minton [1979]):

  • The goal of modern divorce law is to let both parties move on and start new lives without being bound by the past relationship.

Fairness and financial provision on divorce

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24

• Financial awards are not acts of generosity or “taking from one and giving to the other.”

• Each spouse is entitled to a fair share of the assets — marriage is a partnership of equals.

• The court’s role is to determine what fairness requires in each case.

Charman v Charman (No 4) [2007] EWCA Civ 503

• Established the three key principles guiding financial settlements:

  1. Needs – Where one spouse’s needs (e.g. housing, childcare) justify a larger share.

  2. Compensation – To redress economic disadvantage caused by roles within the marriage (e.g. career sacrifice).

  3. Equal Sharing – Marriage is a partnership; matrimonial property should be divided equally unless there is a good reason otherwise.

     • Non-matrimonial property (assets acquired before or outside the marriage) may justify a departure from equality.

Shift from family court trials for financial orders

Problem:

• Contested financial (ancillary relief) trials are extremely costly, often disproportionate to the assets being divided.

• They also cause high emotional and psychological stress for parties.

Xydhias v Xydhias [1999] 1 FLR 683 (CA, Thorpe LJ):

• Recognised the need to avoid unnecessary trials and promote early settlement.

• Courts should encourage agreement and compromise, supported by judicial case management.

• Judges have broad discretion to determine whether parties have reached a binding settlement, even if all details are not finalised.

• Policy aim: Reduce adversarialism and litigation waste; promote efficiency and fairness.

• Heads of agreement or solicitors’ correspondence can establish binding consensus.

Cummings v Fawn [2023] EWHC 830 (Fam) [14]:

• Reaffirmed modern judicial preference for settlement and proportionality over trial.

• Reflects ongoing cultural shift toward negotiation, mediation, and judicial control rather than full hearings.

Family mediation and out of court dispute resolution

Policy Development:

• Since the mid-1990s, governments have promoted family mediation as the preferred method for resolving family disputes.

• Seen as quicker, cheaper, and less acrimonious than court proceedings.

Research and Evaluation:

• Concerns about the lack of evidence behind this policy led to the ESRC-funded Mapping Paths to Family Justice Study (2011–2014).

• The study compared the effectiveness of different out-of-court dispute resolution (DR) methods.

Current Legal Framework (Post-2014):

• In most family cases (including financial orders and child arrangements), parties must attend a Mediation Information and Assessment Meeting (MIAM) before applying to the Family Court.

• The MIAM assesses:

  1. Suitability of mediation for the case;

  2. Information on mediation and other DR options;

  3. Whether court proceedings can be avoided.

Government Support:

• The Family Mediation Voucher Scheme (UK Government) offers financial help for mediation sessions to encourage settlement without litigation.

Consent orders for property

Purpose = Allows parties to agree on financial arrangements, including property, without a contested court hearing.

Process:

1. Parties reach a financial agreement between themselves.

2. Submit a written application to the court using Form D81.

3. Court reviews and, if satisfied, makes a Consent Order under Section 33A Matrimonial Causes Act 1973.

Effect:

• Legally binding court order enforcing the agreed financial/property arrangements.

• Covers property transfer, lump sums, or settlements.

• Avoids the need for full trial or contested proceedings.

Xydhias v Xydhias (1999) (consent orders)

Facts

• Shortly before trial 4^th draft of consent order agreed

• Husband then tried to vary timetable for payments

• Husband’s solicitor stated all offers withdrawn

• Husband then appealed court order ‘no evidence of agreement’

Held

• Even if a consent order has not yet been applied for, the court can recognise and give effect to a previously negotiated agreement between parties.

• Negotiations do not create a binding contract; the court retains independent discretion to fix ancillary relief using s.25 MCA 1973 criteria.

• Purpose of negotiation: reduce cost and length of proceedings, not determine liability.

• Court discretion: determines if an accord has been reached and ensures no abuse by litigants seeking to resile.

• Any settlement is subject to court approval, including review for non-disclosure or other vitiating factors.

Pierburg v Pierburg (No.2) [2022] EWHC 2701

‘Xydhias is authority for the proposition that, in relation to agreements reached in the family law context, ordinary contractual principles do not apply. As the final award was always fixed by the court, the purpose of negotiations was to reduce the length and expense of the legal process. The court has a discretion in determining whether an accord has been reached. Moreover, even where an overall settlement had been agreed, there might well be issues remaining…that the court would be able to determine without undermining the overall agreement.’ [43] (Moor J)

Cummings v Fawn (2024) (support for Freely Entered Agreements)

• Courts generally uphold agreements freely entered into by both parties with full understanding of their implications.

• Exception: It would be unfair to enforce the agreement if circumstances make it inequitable, e.g., leaving one party in real need.

• Aligns with Granitano v Radmacher (2010): agreements, including ante-nuptial, are respected unless enforcing them would fail to meet a party’s needs or be compensationally unfair.

• Key principle: Upholding freely made agreements promotes legal certainty and social order, but court retains discretion to prevent manifest unfairness.

• Freedom of contract is respected, but fairness can override an agreement in family finance cases.

Ipekçi v McConnell (2019) (Protection for Unequal Bargaining)

• If no duress, fraud, or mistake is alleged, mere “unfairness” is not enough to void an agreement.

• Courts do not need to calculate every asset and liability in detail; they can assess fairness broadly.

• Key test: The agreement must meet basic fairness; it should not leave a party in real need.

• Real needs principle: Reasonable needs unmet from one’s own resources constitute a predicament, even under a valid prenup.

• Courts protect parties from manifest unfairness but will not micromanage financial outcomes where agreements were freely entered into.

Fraud or financial deception

Fraud or deliberate non-disclosure can justify setting aside a consent order or negotiated agreement.

Sharland v Sharland (2015/2016):

• If a party deceives to gain an advantage, the court cannot properly exercise its duties because it too has been misled.

• Exception: fraud must not have influenced a reasonable person or the court’s decision; the burden to prove this lies on the perpetrator, not the victim.

Cummings v Fawn (2024) & Xydhias principle:

• The Sharland principles also apply to agreements not yet formalised as consent orders (e.g., Xydhias agreements or Edgar agreements).

Cathcart v Owens (2021):

• Traditional grounds for setting aside final orders include fraud and non-disclosure; deliberate non-disclosure is a type of fraud.

• Inadvertent non-disclosure is distinguished from fraud, reflecting different legal consequences.

Courts can void agreements or orders procured through deception, with the fraudster bearing the burdento show it was immaterial.

Removal of legal aid for financial decisions on divorce

LASPO 2012, s.9(1): Civil legal aid is available only if:

1. The services fall under Part 1 of Schedule 1, and

2. The Director determines the individual qualifies and has not had that determination withdrawn.

• Schedule 1 limitation: Legal aid is restricted to domestic violence cases and mediation.

• Implication: Legal aid is no longer available for general financial disputes or ancillary relief in divorce proceedings; parties must fund their own representation for most financial orders.

Most financial divorce disputes are now private, self-funded matters, except in domestic violence or mediation contexts.