Divorce in UK Law

The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. I do not think it is possible to say, at any rate since the decision of this House in Mordaunt v. Moncreiffe, L.R. 2 Sc. & Div. 374, that the two jurisdictions are other than distinct.

It must suroly be that what entitles an English Court to assume jurisdiction must be equally effective in the case of a foreign Court.

Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement.

The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made.

It gives a case where, if there had been no divorce, the wife might have received a pension after her husband's death. If there is a divorce, this subsection says that the Court can take it into account. If this marriage had continued, it is plain that the wife had a good, chance of receiving a financial benefit on the sale of the business. The husband might well have felt it proper to settle on his wife a substantial sum out of the very large sum which he was receiving.

There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down.

However this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the Court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own covenant preclude herself from invoking the jurisdiction of the Court or preclude the Court from the exercise of that jurisdiction.