23c3301h

 

 

CHAPTER 33

DISSOLUTION OF MARITAL STATUS

 

Subchapter

A.  General Provisions

B.  Procedure

C.  Attacks Upon Decrees

 

Enactment.  Chapter 33 was added December 19, 1990, P.L.1240, No.206, effective in 90 days.

 

 

SUBCHAPTER A

GENERAL PROVISIONS

 

Sec.

3301.  Grounds for divorce.

3302.  Counseling.

3303.  Annulment of void and voidable marriages.

3304.  Grounds for annulment of void marriages.

3305.  Grounds for annulment of voidable marriages.

3306.  Proceedings to determine marital status.

3307.  Defenses.

3308.  Action where defendant suffering from mental disorder.

3309.  General appearance and collusion.

23c3301s

§ 3301.  Grounds for divorce.

(a)  Fault.--The court may grant a divorce to the innocent and injured spouse whenever it is judged that the other spouse has:

(1)  Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.

(2)  Committed adultery.

(3)  By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.

(4)  Knowingly entered into a bigamous marriage while a former marriage is still subsisting.

(5)  Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.

(6)  Offered such indignities to the innocent and injured spouse as to render that spouse's condition intolerable and life burdensome.

(b)  Institutionalization.--The court may grant a divorce from a spouse upon the ground that insanity or serious mental disorder has resulted in confinement in a mental institution for at least 18 months immediately before the commencement of an action under this part and where there is no reasonable prospect that the spouse will be discharged from inpatient care during the 18 months subsequent to the commencement of the action. A presumption that no prospect of discharge exists shall be established by a certificate of the superintendent of the institution to that effect and which includes a supporting statement of a treating physician.

(c)  Mutual consent.--

(1)  The court may grant a divorce where it is alleged that the marriage is irretrievably broken and 90 days have elapsed from the date of commencement of an action under this part and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

(2)  The consent of a party shall be presumed where that party has been convicted of committing a personal injury crime against the other party.

(d)  Irretrievable breakdown.--

(1)  The court may grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least one year and that the marriage is irretrievably broken and the defendant either:

(i)  Does not deny the allegations set forth in the affidavit.

(ii)  Denies one or more of the allegations set forth in the affidavit but, after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least one year and that the marriage is irretrievably broken.

(2)  If a hearing has been held pursuant to paragraph (1)(ii) and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more than 120 days unless the parties agree to a period in excess of 120 days. During this period, the court shall require counseling as provided in section 3302 (relating to counseling). If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.

(e)  No hearing required in certain cases.--If grounds for divorce alleged in the complaint or counterclaim are established under subsection (c) or (d), the court shall grant a divorce without requiring a hearing on any other grounds.

23c3301v

(Apr. 21, 2016, P.L.166, No.24, eff. 60 days; Oct. 4, 2016, P.L.865, No.102, eff. 60 days)

 

2016 Amendments.  Act 24 amended subsec. (c) and Act 102 amended subsec. (d). Section 2 of Act 102 provided that the amendment of subsec. (d) shall apply to periods of living separate and apart that commence after the effective date of section 2.

Cross References.  Section 3301 is referred to in sections 1702, 3103, 3302, 3307, 3323 of this title.

23c3302s

§ 3302.  Counseling.

(a)  Indignities.--Whenever indignities under section 3301(a)(6) (relating to grounds for divorce) is the ground for divorce, the court shall require up to a maximum of three counseling sessions where either of the parties requests it.

(b)  Mutual consent.--Whenever mutual consent under section 3301(c) is the ground for divorce, the court shall require up to a maximum of three counseling sessions within the 90 days following the commencement of the action where either of the parties requests it.

(c)  Irretrievable breakdown.--Whenever the court orders a continuation period as provided for irretrievable breakdown in section 3301(d)(2), the court shall require up to a maximum of three counseling sessions within the time period where either of the parties requests it or may require such counseling where the parties have at least one child under 16 years of age.

(d)  Notification of availability of counseling.--Whenever section 3301(a)(6), (c) or (d) is the ground for divorce, the court shall, upon the commencement of an action under this part, notify both parties of the availability of counseling and, upon request, provide both parties a list of qualified professionals who provide such services.

(e)  Choice of qualified professionals unrestricted.--The choice of a qualified professional shall be at the option of the parties, and the professional need not be selected from the list provided by the court.

(f)  Report.--Where the court requires counseling, a report shall be made by the qualified professional stating that the parties did or did not attend.

(g)  Exception.--Notwithstanding any other provision of law, in no case may the court require counseling over the objection of a party that has a protection from abuse order, enforceable under Chapter 61 (relating to protection from abuse) against the other party, or where that party was the victim of a personal injury crime for which the other party was convicted or has entered into an Accelerated Rehabilitative Disposition program as a result of conduct for which the other party was a victim.

23c3302v

(Apr. 21, 2016, P.L.166, No.24, eff. 60 days)

 

2016 Amendment.  Act 24 added subsec. (g).

Cross References.  Section 3302 is referred to in section 3301 of this title.

23c3303s

§ 3303.  Annulment of void and voidable marriages.

(a)  General rule.--In all cases where a supposed or alleged marriage has been contracted which is void or voidable under this title or under applicable law, either party to the supposed or alleged marriage may bring an action in annulment to have it declared void in accordance with the procedures provided by this part and prescribed by general rules.

(b)  Common-law marriage.--In the case of a purported common-law marriage where a party was under 18 years of age, a parent or guardian of the minor may bring a declaratory judgment proceeding during the party's minority to have the marriage declared void.

23c3303v

 

Cross References.  Section 3303 is referred to in section 3304 of this title.

23c3304s

§ 3304.  Grounds for annulment of void marriages.

(a)  General rule.--Where there has been no confirmation by cohabitation following the removal of an impediment, the supposed or alleged marriage of a person shall be deemed void in the following cases:

(1)  Where either party at the time of such marriage had an existing spouse and the former marriage had not been annulled nor had there been a divorce except where that party had obtained a decree of presumed death of the former spouse.

(2)  Where the parties to such marriage are related within the degrees of consanguinity prohibited by section 1304(e) (relating to restrictions on issuance of license).

(3)  Where either party to such marriage was incapable of consenting by reason of insanity or serious mental disorder or otherwise lacked capacity to consent or did not intend to consent to the marriage.

(4)  Where either party to a purported common-law marriage was under 18 years of age.

(b)  Procedures.--In all cases of marriages which are void, the marriage may be annulled as set forth in section 3303 (relating to annulment of void and voidable marriages) or its invalidity may be declared in any collateral proceeding.

23c3304v

 

Cross References.  Section 3304 is referred to in section 1702 of this title.

23c3305s

§ 3305.  Grounds for annulment of voidable marriages.

(a)  General rule.--The marriage of a person shall be deemed voidable and subject to annulment in the following cases:

(1)  Where either party to the marriage was under 16 years of age unless the marriage was expressly authorized by the court.

(2)  Where either party was 16 or 17 years of age and lacked the consent of parent or guardian or express authorization of the court and has not subsequently ratified the marriage upon reaching 18 years of age and an action for annulment is commenced within 60 days after the marriage ceremony.

(3)  Where either party to the marriage was under the influence of alcohol or drugs and an action for annulment is commenced within 60 days after the marriage ceremony.

(4)  Where either party to the marriage was at the time of the marriage and still is naturally and incurably impotent unless the condition was known to the other party prior to the marriage.

(5)  Where one party was induced to enter into the marriage due to fraud, duress, coercion or force attributable to the other party and there has been no subsequent voluntary cohabitation after knowledge of the fraud or release from the effects of fraud, duress, coercion or force.

(b)  Status of voidable marriage.--In all cases of marriages which are voidable, either party to the marriage may seek and obtain an annulment of the marriage but, until a decree of annulment is obtained from a court of competent jurisdiction, the marriage shall be valid. The validity of a voidable marriage shall not be subject to attack or question by any person if it is subsequently confirmed by the parties to the marriage or if either party has died.

23c3306s

§ 3306.  Proceedings to determine marital status.

When the validity of a marriage is denied or doubted, either or both of the parties to the marriage may bring an action for a declaratory judgment seeking a declaration of the validity or invalidity of the marriage and, upon proof of the validity or invalidity of the marriage, the marriage shall be declared valid or invalid by decree of the court and, unless reversed upon appeal, the declaration shall be conclusive upon all persons concerned.

23c3306v

 

Cross References.  Section 3306 is referred to in section 7541 of Title 42 (Judiciary and Judicial Procedure).

23c3307s

§ 3307.  Defenses.

(a)  General rule.--Existing common-law defenses are retained as to the grounds enumerated in section 3301(a) and (b) (relating to grounds for divorce). The defenses of condonation, connivance, collusion, recrimination and provocation are abolished as to the grounds enumerated in section 3301(c) and (d).

(b)  Adultery.--In an action for divorce on the ground of adultery, it is a good defense and a perpetual bar against the action if the defendant alleges and proves, or if it appears in the evidence, that the plaintiff:

(1)  has been guilty of like conduct;

(2)  has admitted the defendant into conjugal society or embraces after the plaintiff knew of the fact;

(3)  allowed the defendant's prostitution or received hire from it; or

(4)  exposed the defendant to lewd company whereby the defendant became involved in the adultery.

23c3308s

§ 3308.  Action where defendant suffering from mental disorder.

If a spouse is insane or suffering from serious mental disorder, an action may be commenced under this part against that spouse upon any ground for divorce or annulment.

23c3309s

§ 3309.  General appearance and collusion.

The entry of a general appearance by, or in behalf of, a defendant does not constitute collusion. Collusion shall be found to exist only where the parties conspired to fabricate grounds for divorce or annulment, agreed to and did commit perjury or perpetrated fraud on the court. Negotiation and discussion of terms of property settlement and other matters arising by reason of contemplated divorce or annulment do not constitute collusion.

23c3321h

 

 

SUBCHAPTER B

PROCEDURE

 

Sec.

3321.  Hearing by master.

3322.  Jury trial.

3323.  Decree of court.

23c3321s

§ 3321.  Hearing by master.

The court may appoint a master to hear testimony on all or some issues, except issues of custody and paternity, and return the record and a transcript of the testimony together with a report and recommendation as prescribed by general rules, or a judge of the court in chambers may appoint a master to hold a nonrecord hearing and to make recommendations and return the same to the court, in which case either party may demand a hearing de novo before the court.

23c3321v

 

Suspension by Court Rule.  Section 3321 was suspended by Pennsylvania Rule of Civil Procedure No. 1920.91, as amended May 5, 1997, insofar as it prohibits the appointment of masters in partial custody or visitation matters.

23c3322s

§ 3322.  Jury trial.

(a)  Application for jury trial.--After service of the complaint in divorce or annulment on the defendant in the manner prescribed by general rules or entry of a general appearance for the defendant, if either of the parties desires any matter of fact that is affirmed by one and denied by the other to be tried by a jury, that party may take a rule upon the opposite party, to be allowed by a judge of the court, to show cause why the issues of fact set forth in the rule should not be tried by a jury, which rule shall be served upon the opposite party or counsel for the opposite party.

(b)  Disposition of application.--Upon the return of the rule, after hearing, the court may discharge it, make it absolute or frame issues itself. Only the issues ordered by the court shall be tried. The rule shall not be made absolute when, in the opinion of the court, a trial by jury cannot be had without prejudice to the public morals.

23c3323s

§ 3323.  Decree of court.

(a)  General rule.--In all matrimonial causes, the court may either dismiss the complaint or enter a decree of divorce or annulment of the marriage.

(b)  Contents of decree.--A decree granting a divorce or an annulment shall include, after a full hearing, where these matters are raised in any pleadings, an order determining and disposing of existing property rights and interests between the parties, custody, partial custody and visitation rights, child support, alimony, reasonable attorney fees, costs and expenses and any other related matters, including the enforcement of agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any of these matters, the court shall have all necessary powers, including, but not limited to, the power of contempt and the power to attach wages.

(c)  Bifurcation.--(Deleted by amendment).

(c.1)  Bifurcation.--With the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided for in subsection (b) if the court determines that doing so provides sufficient economic protections for any minor children of the marriage. In the absence of the consent of both parties, the court may enter a decree of divorce or annulment prior to the final determination and disposition of the matters provided for in subsection (b) if:

(1)  grounds have been established as provided in subsection (g); and

(2)  the moving party has demonstrated that:

(i)  compelling circumstances exist for the entry of the decree of divorce or annulment; and

(ii)  sufficient economic protections have been provided for the other party and any minor children of the marriage during the pendency of the disposition of the matters provided for in subsection (b).

(d)  Substitution for deceased party.--If one of the parties dies after the decree of divorce has been entered, but prior to the final determination in such proceeding of the property rights and interests of the parties under this part, the personal representative of the deceased party shall be substituted as a party as provided by law and the action shall proceed.

(d.1)  Death of a party.--In the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), the parties' economic rights and obligations arising under the marriage shall be determined under this part rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).

(e)  Costs.--The court may award costs to the party in whose favor the order or decree shall be entered or may order that each party shall pay their own costs or may order that costs be divided equitably as it shall appear just and reasonable.

(f)  Equity power and jurisdiction of the court.--In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

(g)  Grounds established.--For purposes of subsections (c.1) and (d.1), grounds are established as follows:

(1)  In the case of an action for divorce under section 3301(a) or (b) (relating to grounds for divorce), the court adopts a report of the master or makes its own findings that grounds for divorce exist.

(2)  In the case of an action for divorce under section 3301(c), both parties have filed affidavits of consent or, if the presumption in section 3301(c)(2) is established, one party has filed an affidavit of consent.

(3)  In the case of an action for divorce under section 3301(d), an affidavit has been filed and no counter-affidavit has been filed or, if a counter-affidavit has been filed denying the affidavit's averments, the court determines that the marriage is irretrievably broken and the parties have lived separate and apart for at least one year at the time of the filing of the affidavit.

23c3323v

(Nov. 29, 2004, P.L.1357, No.175, eff. 60 days; Apr. 21, 2016, P.L.166, No.24, eff. 60 days; Oct. 4, 2016, P.L.865, No.102, eff. 60 days)

 

2016 Amendments.  Act 24 amended subsec. (g)(2) and Act 102 amended subsecs. (c.1) and (g)(3). Section 2 of Act 102 provided that the amendment of subsec. (g)(3) shall apply to periods of living separate and apart that commence after the effective date of section 2.

2004 Amendment.  Act 175 added subsecs. (c.1), (d.1) and (g) and deleted subsec. (c). See section 5(3), (4) and (5) of Act 175 in the appendix to this title for special provisions relating to applicability.

Cross References.  Section 3323 is referred to in sections  2106, 2203, 2507, 6111.1, 6111.2 of Title 20 (Decedents, Estates and Fiduciaries).

23c3331h

 

 

SUBCHAPTER C

ATTACKS UPON DECREES

 

Sec.

3331.  Limitations on attacks upon decrees.

3332.  Opening or vacating decrees.

3333.  Res judicata and estoppel.

23c3331s

§ 3331.  Limitations on attacks upon decrees.

The validity of a decree of divorce or annulment issued by a court shall not be questioned, except by appeal, in any court or place in this Commonwealth after the death of either party to the proceeding. If it is shown that a party who subsequently attempts to question the validity of the decree had full knowledge of the facts and circumstances later complained of at the time of issuance of the decree or failed to take any action despite this knowledge within two years after the date of the decree, the party shall be barred from questioning the decree, and it shall be valid in all courts and places within this Commonwealth.

23c3332s

§ 3332.  Opening or vacating decrees.

A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S. § 5505 (relating to modification of orders) and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.

23c3333s

§ 3333.  Res judicata and estoppel.

The validity of a divorce or annulment decree granted by a court having jurisdiction over the subject matter may not be questioned by a party who was subject to the personal jurisdiction of the court except by direct appeal provided or prescribed by law. A party who sought and obtained a decree, financed or agreed to its procurement, or accepted a property settlement, alimony pendente lite or alimony pursuant to the terms of the decree, or who remarries after the decree, or is guilty of laches, is barred from making a collateral attack upon the validity of the decree unless, by clear and convincing evidence, it is established that fraud by the other party prevented the making of a timely appeal from the divorce or annulment decree.