Matrimonial Causes Act 1973

4 Divorce not precluded by previous judicial separation. E+W

(1) A person shall not be prevented from presenting a petition for divorce, or the court from granting a decree of divorce, by reason only that the petitioner or respondent has at any time, on the same facts or substantially the same facts as those proved in support of the petition, been granted a decree of judicial separation or an order under, or having effect as if made under, the M1 Matrimonial Proceedings (Magistrates’ Courts) Act 1960 [F1 or Part I of the M2 Domestic Proceedings and Magistrates’ Courts Act 1978] or any corresponding enactments in force in Northern Ireland, the Isle of Man or any of the Channel Islands.

(2) On a petition for divorce in such a case as is mentioned in subsection (1) above, the court may treat the decree or order as sufficient proof of any adultery, desertion or other fact by reference to which it was granted, but shall not grant a decree of divorce without receiving evidence from the petitioner.

(3) Where a petition for divorce in such a case follows a decree of judicial separation or [F2 (subject to sub-section (5) below)] an order containing a provision exempting one party to the marriage from the obligation to cohabit with the other, for the purposes of that petition a period of desertion immediately preceding the institution of the proceedings for the decree or order shall, if the parties have not resumed cohabitation and the decree or order has been continuously in force since it was granted, be deemed immediately to precede the presentation of the petition.

[F3 (4) For the purposes of section 1(2)(c) above the court may treat as a period during which the respondent has deserted the petitioner any of the following periods, that is to say—

(a) any period during which there is in force an injunction granted by the High Court or a county court which excludes the respondent from the matrimonial home;

(b) any period during which there is in force an order made by the High Court or a county court under [F4 section 1 or 9 of the Matrimonial Homes Act 1983]

(c) any period during which there is in force an order made by a magistrates’ court under section 16(3) of the M3 Domestic Proceedings and Magistrates’ Courts Act 1978 which requires the respondent to leave the matrimonial home or prohibits the respondent from entering the matrimonial home.

(5) Where—

(a) a petition for divorce is presented after the date on which Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978 comes into force, and

(b) an order made under the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 containing a provision exempting the petitioner from the obligation to cohabit with the respondent is in force on that date,

then, for the purposes of section 1(2)(c) above, the court may treat a period during which such a provision was included in that order (whether before or after that date) as a period during which the respondent has deserted the petitioner.]

Textual Amendments

F1 Words inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), s. 89(2), Sch. 2 para. 38

F2 Words inserted by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), ss. 62(a), 89(2)

F3 S. 4(4)(5) added by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), ss. 62(b), 89(2)

F4 Words substituted for s. 4(4)(b)(i) and (ii) by Matrimonial Homes Act 1983 (c. 19, SIF 49:5), ss. 12, 13, Sch. 2

Marginal Citations

M1 1960 c. 48.

M2 1978 c. 22

M3 1978 c. 22.