Married and divorce in England and Wales

Following several questions and queries asking the Point Newspaper to shed light on the current news regarding a 25th October subject of discussion on UK national television; including an article that was picked up from a mainstream British newspaper about a Gambian married to a UK national; this correspondent decided to investigate the matter and made public its findings for the benefit of its readers. 

The interesting but also intriguing news story was briefly read out on a Channel from the UK daily newspaper with a huge headline: Revenge of Shirley Valentine: Humiliated grandmother refuses to divorce Gambian... so he’ll never get a UK visa.

As an international correspondent reporting for the Point Newspaper as well as member of the National Union of Journalist in the UK, the story also slightly troubled me and thus I decided to contact the panel myself. Due to the volume of the calls, I could not get through.

However, I have been writing lots of articles in regards to immigration matters and found it necessary to put some relevant points across. Apart from the few rotten apples found in every civilised society, Gambians are overwhelmingly well known for their hardwork, dedication and respect for the law of their host country. Senior government officials both in the former Labour government and the current coalition confirmed this to me. Beside, no man is perfect and everyone once committed a mistake in life.

But according to the article, British national Mary Cotnoir, 59, who married a Gambian man called Demba Sanneh later realised that the ‘25-year-old Gambian waiter had ‘wooed her purely because he wanted a visa to live in the UK.’ The story detailed how the two met and splashed pictures of the wedding ceremony, family members of Sanneh etc.

It was alleged that they met during her two week’s holiday and so she returned home without him. The couple had ‘planned to marry in the UK but Mr Sanneh’s application for a tourist visa was refused’. Now ‘refusing to divorce him so he cannot seek another British bride’.

The lady reportedly complained amongst others …‘I plan to stay married to this man so he can’t do what he’s done to me to another woman…If he wants to come to the UK, he’d need my co-operation as his wife for his visa, and I won’t be helping him at all. He broke my heart and I’ll never forgive him’, the paper wrote.

However I do not want to enter into the issues that occurred, but my only worry is that Sanneh’s version of the story was only two lines when the paper wrote: ‘Yesterday Mr Sanneh was still insisting his intentions were honourable. On the phone from Gambia, he said: ‘We got married as I want to be her husband. I am still her husband. I know Mary is in the UK but I would like our marriage to work out.’

A statistic on the number of Gambians married to British nationals was recorded obviously creating a prejudicial undertone.

There is no doubt that UK judiciary is extremely independent and its level of fairness is of a very high degree. Currently there is no law in England and Wales stating that a British national can marry a person from another country and abandoned him or her to his or her country of origin forever. Therefore let us begin with the current Law of Divorce.

Law of Divorce

The statute which governs the law on divorce is known as the Causes Act 1973. The Family Law Act 1996 did not alter the law relating to granting a divorce. Only certain sections of the Family Law Act 1996 have been brought into force and those do not concern granting a divorce.

Firstly, in order to obtain a divorce: There must be a legal marriage. There must be jurisdiction to grant the divorce within England and Wales. This can be based upon domicile or habitual residence as defined in law of either party.

It is governed by S5 Domicile and Matrimonial Proceedings Act 1973 and Council Regulation (EC)(No 2201/2003) concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (Brussels 11 Revised).

Furthermore, there must be a one year bar to commencing proceedings. No petition for divorce can be made within one year of the marriage-MCA 1973 s3 (1)!

However, an applicant can use facts that occurred within that first year to support their petition for divorce – S3 (2) as in the case: Butler v Butler [1990] Fam Law 2. It worth noting that it will be difficult to get one in such circumstance.

Grounds for Divorce:

There is one and only one ground for divorce. This is found in the Matrimonial Causes Act (MCA) 1973 s1 (1) which states: ‘The sole ground on which a petition for divorce may be presented to the court...shall be that the marriage has broken down irretrievably’.

This is established by showing one (or more) of 5 facts in s 1(2) MCA. The facts are: Adultery s 1(2)(a); Behaviour s 1(2)(b); Desertion for two years s 1(2); Separation for two years with respondent’s consent to the decrees S1 (2)(d); Separation for five years without consent to the decree being required 1(2)(e).

It is impossible for me to go into detail of all the above, however it worth pointing out that ‘it is not enough that one of the five facts has been established. It must also be shown that there is ‘irretrievable breakdown of the marriage’. Already there are several decided cases both past and present as seen in the Court of Appeal, House of Lords and the European Court of Justice.

Adultery:

Another important element is Adultery, s 1(2)(a) MCA 1973 explains where the respondent has committed adultery and the petitioner finds it intolerable to live with the Respondent.

Here too, there is a need to proof of adultery because according to the law ‘mere suspicion is not enough’ as held in the case: Bastable v Bastable [1968]. However the court accepted that ‘confession will be sufficient’.

Birth of a Child:

Family Law Act 1969 s 26 as in the case: Preston v Preston[1951] or in Jackson v Jackson [1961] clarifying Blood Tests. It is important to note that the standard of proof is civil but a high civil standard as befits the gravity of the situation as in the case: Blyth v Blyth [1966].

Intolerable to live with the Respondent:

There does not need to be any causal connection with the adultery as in Cleary v Cleary [1974].

Behaviour s 1(2)(b) MCA 1973:

This is essential here noting when ‘the respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the respondent.’

In the case: Ash v Ash [1972] the court asked ‘could this petitioner be reasonably be expected to live with the respondent and this is for the court not the petitioner to answer’.

The principle was further developed in the famous case: Livingstone Stallard v Livingstone Stallard [1974] when Dunn J stated: “ Would any right thinking person come to the conclusion the this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characteristics and personalities of the parties’.

It is vital to note that lack of physical affection or refusal of sexual relations will not be enough as in the case: Sheldon v Sheldon [1966] or Pheasant v Pheasant [1972].

Illness

This is always a difficult part as the petitioner is trying to use the respondent’s illness as a reason to divorce them as in Katz v Katz [1972] or Thurlow v Thurlow [1975]. There is also Provision for reconciliation which is found in S2(3) MCA 1973.

Desertion

A very important aspect of the case in hand is ‘Desertion’-S1(2) MCA 1973. Desertion means the separation of one spouse from the other with an intention on the part of the spouse who is deserting to bring their co habitation to a permanent end, without reasonable cause and without the consent of the other spouse.

It is important to note that the spouse who physically leaves may not be the one who is deserting and desertion is not simply the withdrawal (or leaving) from a place, but from a state of things. It can occur when spouses live in the same property but have ‘withdrawn’ from living as a couple.

In practice, desertion is not often used. The reason for this is that parties are able to rely instead on S1(2)(b) which does not require a period of separation or S1(2)(d).

Two Years Separation:

Two years separation with consent to the decree is found under S1(2)(d): ‘That the parties have lived apart for a continuous period of two years immediately preceding the presentation of the petition and that the respondent consents to a decree being granted.’

Living Apart:

MCA 73 s 2(6) defines ‘living apart’ as seen in the case: Mouncer v Mouncer [1972] or in Fuller v Fuller [19973]. However, it is vital that at least one party to the marriage recognised that the marriage was in fact over.

Respondent consents to the decree:

The consent to the decree does not require the respondent to have consented to the separation. The respondent must give a positive indication of their consent.

The Five years separation under s1(2)(e) MCA 1973:

It is when the parties have lived apart for a ‘continuous period of at least five years immediately preceding the presentation of the petition.’

S10 (2) also considers of the respondent’s financial position and the court may withhold the decree absolute until the finances are dealt with as in Parkes v Parkes [1971].

Judicial Separation s 17 MCA 1973

This does not end the marriage. The Grounds as set out in MCA 1973 s 1(2). There is no requirement to prove irretrievable breakdown of marriage. The one year bar does not apply. Protection under neither ss 5, 10 does not apply. It does end all duty to cohabit s18(1). Financial relief is available to either party as it is in divorce.

Clean Break – S25A(1)

Here the parties are allowed to go their separate ways provided fair and appropriate to do so as seen in the case: Miller v Miller; McFarlane v McFarlane [2006].

The court must ensure that all is based to objectivity and of fairness as seen in White v White.

Ancillary relief

It is important to note that notwithstanding a marriage being void, ancillary relief is still available under S23 (1) MCA 1973.

Voidable marriages under s 12 MCA 1973

Under S 12 (a) ‘A marriage is voidable if it has not been consummated owing to the incapacity of either party to consummate it.’

S 12 (b) states: A marriage is voidable if it has not been consummated due to the wilful refusal of the respondent to consummate.’ Therefore a partner cannot move on or been thrown out whiles the other lives in limbo.

Mistake

This will also invalidate a marriage if it is to the identity of the party. It is not enough that the mistake is to the character or wealth of a party, even if the mistake was procured by fraud.

In the case: Alfonso-Brown v Milwood [2006], a marriage based in Ghana, the ‘husband’ went through a ceremony in a language he did not understand and which he believed was an engagement ceremony. The marriage was not valid in Ghana and was not valid in England & Wales as there was no intent to marry on the part of the husband.

 It is not enough that the party was mistaken about the consequences of marriage as held in the case: Kassim v Kassim[1962].

Unsoundness of mind or otherwise

The test is whether the party understood the nature of the marriage ceremony, and the duties and responsibilities of marriage.  If the unsoundness of mind was due to drugs or alcohol, then the marriage can be set aside by either party as seen in the case: Durham v Durham  (1885).

S12 (e) also states that is possible if at the time, the respondent was suffering from ‘venereal disease in a communicable form’. However, the term venereal disease is not defined in the Act.

Also S12 (f) states that marriage is voidable if at the time if the marriage the respondent was ‘pregnant by some other person than the petitioner.’

From the above facts, it will be difficult or rather impossible for any Gambia man or woman or anybody else from anywhere in the world to suffer such particular situations as the law will fully protect their rights. Even though some journalists are ignorant of such laws or refusing to notice them for certain unknown reasons, the law is very clear and the courts in England and Wales will apply them accordingly without fear or favour.

Any further advise on such matter please contact the Point Newspaper. We are here to help.