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Excerpts from Statutes

The Matrimonial Causes Act 1973, ss 1, 23, 24, 24A and 25 is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO.

Matrimonial Causes Act 1973

Divorce

1. Divorce on breakdown of marriage

1. Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
2. The court hearing a petition for divorce shall not hold the marriage to have broken down irretreviably unless the petitioner satisfies the court of one or more of the following facts, that is to say –
   
   1. that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
   2. that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
   3. that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
   4. that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;
   5. that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).
       
3. On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.
4. If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 below, grant a decree of divorce.
5. Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.

[NB the period for applying has now been shortened by the Matrimonial Causes (Decree Absolute) Order 1972, as amended, to six weeks from grant of decree nisi for the petitioner, and three months after the date on which the petitioner may apply for the respondent.]

23 Financial provision orders in connection with divorce proceedings, etc

1. On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say –
   
   1. an order that either party to the marriage shall make to the other such periodical payments, for such terms, as may be specified in the order;
   2. an order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical payments, for such term, as may be so specified;
   3. an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified;
   4. an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified;
   5. an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified;
   6. an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified;

   subject, however, in the case of an order under paragraph (d), (e) or (f) above, to the restrictions imposed by section 29(1) and (3) below on the making of financial provision orders in favour of children who have attained the age of eighteen.

2. The court may also, subject to those restrictions, make any one or more of the orders mentioned in subsection (1)(d), (e) and (f) above –
   
   1. in any proceedings for divorce, nullity of marriage or judicial separation, before granting a decree; and
   2. where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal.
       
3. Without prejudice to the generality of subsection (1)(c) or (f) above –
   
   1. an order under this section that a party to a marriage shall pay a lump sum to the other party may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section in his or her favour;
   2. an order under this section for the payment of a lump sum to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met; and
   3. an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.
       

4. The power of the court under subsection (1) or (2)(a) above to make an order in favour of a child of the family shall be exercisable from time to time; and where the court makes an order in favour of a child under subsection (2)(b) above, it may from time to time, subject to the restrictions mentioned in subsection (1) above, make a further order in his favour of any of the kinds mentioned in subsection (1)(d), (e) or (f) above.

5. Without prejudice to the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel, where an order is made under subsection (1)(a), (b) or (c) above on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute.
    
6. Where the court –
   
   1. makes an order under this section for the payment of a lump sum; and
   2. directs –
      1. that the payment of that sum or any part of it shall be deferred; or
      2. that the sum or any part of it shall be paid by instalments,

   the court may order that the amount deferred or the instalments shall carry interest at such rate as may be specified by the order from such date, not earlier than the date of the order, as may be so specified, until the date when payment of it is due.

24 Property adjustment orders in connection with divorce proceedings etc

1. On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the divorce is made absolute), the court may make any one or more of the following orders, that is to say –
   
   1. an order that a party to the marriage shall transfer to the other party, to any child of the family or to such persons as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion;
   2. an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the court for the benefit of the other party to the marriage and of the children of the family or either or any of them;
   3. an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage;
   4. an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement;

   subject, however, in the case of an order under paragraph (a) above, to the restrictions imposed by section 29(1) and (3) below on the making of orders for a transfer of property in favour of children who have attained the age of eighteen.

2. The court may make an order under subsection (1)(c) above notwithstanding that there are no children of the family.
    
3. Without prejudice to the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel, where an order is made under this section on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute.

24A Orders for sale of property

1. Where the court makes under section 23 or 24 of this Act a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.
    
2. Any order made under subsection (1) above may contain such consequential or supplementary provisions as the court thinks fit and, without prejdudice to the generality of the foregoing provision, may include –
   
   1. provision requiring the making of a payment out of the proceeds of sale of the property to which the order relates, and
   2. provision requiring any such order to be offered for sale to a person, or class of persons, specified in the order.
       
3. Where an order is made under subsection (1) above on or after the grant of a decree of divorce or nullity of marriage, the order shall not take effect unless the decree has been made absolute.
    
4. Where an order is made under subsection (1) above, the court may direct that the order, or such provision thereof as the court may specify, shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified.
    
5. Where an order under subsection (1) above contains a provision requiring the proceeds of sale of the property to which the order relates to be used to secure periodical payments to a party to the marriage, the order shall cease to have effect on the death or re-marriage of that person.
    
6. Where a party to a marriage has a beneficial interest in any property, or in the proceeds of sale therof, and some other person who is not a party to the marriage also has a beneficial interest in that property or in the proceeds of sale thereof, then, before deciding whether to make an order under this section in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any respresentations made by that other person shall be included among the circumstances to which the court is required to have regard under section 25(1) below.

25 Matters to which court is to have regard in deciding how to exercise its powers under ss 23, 24 and 24A

1. It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 or 24A above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
    
2. As regards the exercise of the powers of the court under section 23(1)(a)(b) or (c), 24 or 24A above in relation to a party to the marriage, the court shall in particular have regard to the following matters –
   
   1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would, in the opinion of the court be reasoanble to expect a party to the marriage to take steps to acquire;
   2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
   3. the standard of living enjoyed by the family before the breakdown of the marriage;
   4. the age of each party to the marriage and the duration of the marriage;
   5. any physical or mental disability of either of the parties to the marriage;
   6. the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
   7. the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
   8. in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party wil lose the chance of acquiring.
       
3. As regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above, in relation to a child of the family, the court shall in particular have regard to the following matters –
   
   1. the financial needs of the child;
   2. the income, earning capacity (if any), property and other financial resources of the child;
   3. any physical or mental disability of the child;
   4. the manner in which he was being and in which the parties to the marriage expected him to be educated or trained.
   5. the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above.
       
4. As regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard –
   
   1. to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;
   2. to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
   3. to the liability of any other person to maintain the child.
       
5. In relation to any power of the court to make an interim periodical payments order or an interim order for the payment of a lump sum, the preceding provisions of this section, in imposing any obligation on the court with respect to the matters to which it is to have regard, shall not require the court to do anything which would cause such a delay as would, in the opinion of the court, be inappropriate having regard –
   
   1. to any immediate need for an interim order;
   2. to the matters in relation to which it is practicable for the court to inquire before making an interim order; and
   3. to the ability of the court to have regard to any matter and to make appropriate adjustments when subsequently making a financial provision order which is not interim.

Children Act 1989, s 1 is reproduced under the terms of Crown Copyright Policy Guidance issued by HMSO.

Children Act 1989

Welfare of the child

1. When a court determines any question with respect to
   
   1. the upbringing of a child; or
   2. the administration of a child’s property or the application of any income arising from it

   the child’s welfare shall be the court’s paramount consideration.

2. In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
    
3. In the circumstances mentioned in subsection (4), a court shall have regard in particular to
   
   1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
   2. his physical, emotional and educational needs;
   3. the likely effect on him of any change in his circumstances;
   4. his age, sex, background and any characteristics of his which the court considers relevant;
   5. any harm which he has suffered or is at risk of suffering;
   6. how capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
   7. the range of powers available to the court under this Act in the proceedings in question.
       
4. The circumstances are that
   
   1. the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or
   2. the court is considering whether to make, vary or discharge an order under Part IV
       
5. Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.