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Divorce

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kazzasingh's version from 2018-05-10 18:34

 

Question Answer
Babiarz v Poland [2017]The couple married in 1992 but then had fertility issues. Wife underwent treatment to improve her fertility. While this was happening, the husband started a new relationship with another woman and moved in with her. HELD: no right to divorce under the ECHR
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First Fact (Adultery --> s1(2)(a) MCA 1973)

Question Answer
s1(6) MCA 1973Only conduct between the respondent and a person of the opposite sex may constitute adultery (homosexual affair is not adultery - HOWEVER, in a same-sex marriage, if a spouse sleeps with someone of the opposite gender, this is adultery).
Two-part test for adulteryAdultery AND it is intolerable to live with the respondent --> these two things do not have to be related (you cannot rely on your own adultery). BARRED if the couple lived for six months after the adultery. ***NOT A BASIS FOR CIVIL PARTNERSHIP***
Cleary v Cleary [1974]The married couple had two children. Wife left husband and went to live with another man. After a month, she returned to her husband. She lived with him for six weeks and then went to live with her mother. A year later, she petitioned for divorce on the grounds that the marriage had broken down. Husband cross-petitioned on the basis of adultery. He claimed that he could no longer live with the wife because there was no future in the marriage. HELD: There was adultery AND it was intolerable for the husband to live with his wife --> these two things did not have to be related.
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Second Fact (Unreasonable behaviour --> s1(2)(b) MCA 1973)

Question Answer
Livingstone-Stallard v Livingstone-Stallard [1974]Unreasonable behaviour --> 'Would any right thinking person come to the conclusion that this husband has behaved in such a way that his wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties.'
Mason v Mason (1980)Unreasonable behaviour --> The wife refused to have sex with the husband more than once a week. HELD: this was not a basis for unreasonable behaviour. The focus is on the effect on the applicant rather than the fault of the respondent.
Thurlow v Thurlow [1975]Unreasonable behaviour --> The wife was bedridden and she became cranky. HELD: not the wife's fault but behaviour meant that it was unreasonable for husband to live with her. Question whether the person who has behaved unreasonably needs to be at fault for that behaviour.
Ash v Ash [1992]Unreasonable behaviour --> The husband had engaged in very violent and abusive behaviour (had alcohol problem). He suggested that his wife should continue living with him because she was also a violent person. HELD: whether the couple should stay together depends on the behaviour of each party.
Birch v Birch [1992]Unreasonable behaviour --> The wife claimed the husband was very dictatorial towards her. She was Irish and he was British. He used to taunt her about being Irish. She complained. Husband claimed that she was oversensitive. HELD: husband should have been aware of the effect his behaviour had on his wife.
Time BarringThe longer the period of cohabitation after the last incident the more likely it is that the court will draw the inference that the applicant can reasonably be expected to put up with the respondent's behaviour.
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Third Fact (Desertion for 2 years --> s1(2)(c) MCA 1973)

Question Answer
s1(2)(c) MCA 1973)'unjustifiable withdrawal from cohabitation, without the consent of the remaining spouse and with the intent of being separated permanently'
Five components of desertion for 2 years(a) Actual separation (b) Must last for 2 years (c) Intention to desert (d) No consent from the petitioner to the separation (e) No just cause for the separation.
Le Brocq v Le Brocq [1964]Desertion for 2 years --> Wife put a lock on the bedroom door. No communication. Continued to cook his meals. HELD: no desertion as no separation of households. Husband provided the money for food and the wife went and bought it. You can have desertion when two parties are living under the same roof BUT not when they are operating as one household unit.
Hopes v Hopes [1949]Desertion for 2 years --> The couple remained in the same house but the wife charged the husband money for cooking his food. HELD: this was enough to separate two households and satisfy the basis of desertion.
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Fourth Fact (Separation for 2 years --> s1(2)(d) MCA 1973) )

Question Answer
Fuller v Fuller [1973]Separation for 2 years --> The husband remained in the matrimonial home and became sick. The doctor told the wife that he must not remain on his own and that he only had about 1 year to live. Husband living in his wife's house, he paid a weekly sum and slept in a separate bedroom. Wife was with her new partner in the same house. She cooked his meals and did his washing. HELD: because there was payment (as if she was a lodger in the house) for 4 years, this satisfied the criteria for separation for 2 years.
Mouncer v Mouncer [1972]Separation for 2 years --> Couple live in the same house as they have small children. They sleep in separate bedrooms. The wife continues to cook meals for the husband and they all eat together. They share the cleaning of the house but the wife no longer did any washing for the husband. HELD: this was not sufficient to prove that they led separate lives. They were living as a family unit.
Kiss and make-up provisionSeparation for 2 years --> s3(5) MCA 1969 --> two or more periods of resuming living together not exceeding six months are disregarded.
Santos v Santos [1972]Separation for 2 years --> At least one party must recognise that the marriage is at an end.
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Fifth Fact (Separation for 5 years --> s1(2)(e) MCA 1973)

Question Answer
S5 MCA 1973 (defence)Can unilateral divorce be prevented? Divorce can be barred if it would 'result in grave financial hardship...and it would in all the circumstances be wrong to dissolve the marriage (VERY HARD TO PROVE!).
Rukat v Rukat [1975]Married couple but wife took child with her to Italy and did not return for over 5 years. Husband petitioned for divorce on the grounds of 5 years separation. Wife opposed the divorce on the grounds that divorce would result in her and her child being socially ostracised in Italy. HELD: wife's appeal dismissed as she had not established grave financial hardship.
Archer v Archer [1999]Wife owned family home. Husband had a large salary. He paid for her monthly maintenance. When he applied for a divorce, she was set to lose her widow's pension. She argued that the divorce should not be allowed to happen as if the husband predeceased her, she would lose her maintenance and then she would have to sell her house. This would result in lower living standards. HELD: no grave financial hardship as she could sell the house. Drop in a standard of living is not enough.
Banik v Banik [1973]A couple who got married in England after WW2. Husband came to England in the 1960s and petitioned for divorce 10 years later. Wife was living in India and opposed to the divorce as she would be ostracised from society. HELD: although she could argue she was going to suffer hardship, she couldn't show that it was GRAVE. But this case does show that the hardship does not have to be financial.
Divorce (Religious Marriages) Act 2002 s10AAccomodation of religious practices --> Allows the court to refuse decree absolute unless both parties make a declaration that they have taken the steps to dissolve the marriage under the religious law.
A v T (Ancillary Relief: Cultural Factors) [2004]Iranian couple. Under Sharia Law, the wife could only divorce in certain circumstances and the husband could divorce in others. HELD: court placed a conditional order of ancillary relief that the husband would have to pay the wife 35,000 if he got this religious divorce for her. If he did not, the payments would go upto 60,000.
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