Divorce UNIT 23. Preview Definition History Grounds for divorce Stages in obtaining a divorce Court orders Cases

DivorceUNIT 23

Preview

Definition

History

Grounds for divorce

Stages in obtaining a divorce

Court orders

Cases

Divorce

The legal termination of marriage

Under English law, the basis for divorce is the irretrievable breakdown of marriage

The official request to a court to end a marriage is called divorce petition

Petitioner - respondent

History of divorce law in UK

Prior to 1857 church courts determined the law on divorce: although nullity decrees could be made, divorce was not available through courts

The only form of divorce – by an Act of Parliament – a hugely expensive procedure open only to the wealthy and to husbands

Marriages of the poor – ended in the husbands (less often wives) deserting, and even in wife-sales, a practice believed by the rural poor to terminate marriage (T. Hardy, The Mayor of Casterbridge)

History

Matrimonial causes Act 1857 – created an alternative to divorce by an Act of Parliament: a procedure through the courts

Discrimination: Difference between the grounds available to husband and wife, e.g. a husband could rely on his wife’s adultery, but a wife could rely on a husband’s adultery only if there were aggravating circumstances (incest, ‘unnatural offences’: bigamy, rape, sodomy)

History

Matrimonial Causes Act 1923 put husband and wife in the same position (adultery grounds)

Matrimonial Causes Act 1937 extended the grounds to include cruelty, desertion or incurable insanity

History

Before 1973 (fault divorce) Matrimonial Causes Act the petitioner was required to present in open court evidence to support the grounds set out in the petition, by introducing witnesses if necessary – expensive, embarassing, stressful

1969 Divorce Reform Act introduced irretrievable breakdown of a marriage as the only ground for divorce (no-fault divorce)

History

1973 Matrimonial causes Act

A special procedure introduced for undefended divorces: the petitioner had to lodge the petition outlining the grounds for divorce, a statement concerning arrangements for the children and an affidavit confirming the truth of these documents

Ground for divorce

Irretrievable breakdown of a marriage

It can be established by proving one or more of five facts

Proof of irretrievable breakdown without one of the five facts is insufficient

Proof of one of the five facts raises an almost irrebuttable presumption that marriage has irretrievably broken down

Five facts

1. Adultery

2. Unreasonable bahaviour

3. Two years separation

4. Five years separation

5. Desertion

Adultery

Sexual intercourse by consent between a married person and someone of the opposite sex who is not that person’s spouse

Adultery

Before the Divorce Reform Act adultery was a ground for divorce; now adultery in itself is insufficient

The PETITIONER must satisfy (= convince) the court that the RESPONDENT has committed adultery and that it is intolerable to live with them

Adultery

The test is subjective: Does this petitioner find it intolerable to live with this respondent?

Cohabitation of over 6 months after becoming aware of adultery ‘destroys’ the fact

UNREASONABLE BEHAVIOUR

The petitioner must satisfy the court that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent

Replaces the old ground of cruelty

Whether the respondent’s behaviour is such that the petitioner can no longer reasonably be expected to live with him is a question of fact, and one for the court, not the petitioner, to answer

Unreasonable behaviour

A subjective view should be taken of the petitioner’s character and personality and an objective view of whether it is reasonable to expect her to live with the respondent (Livingstone-Stallard v Livingstone-Stallard 1974)


Divorces are granted for a wide range of behaviour:

Violence

Subjecting a spouse to a constant criticism and disapproval

Dogmatic and chauvinistic behaviour towards a sensitive wife

Financial irresponsibility

An affair in which there was no adultery


More than a mere state of affairs or state of mind

It is „action or conduct by one which affects the other”

Incidents, which may be trivial, when looked at cumulatively, can amount to behaviour that comes within this provision


A difficult problem arises when the respondent, because of mental or physical ill-health, cannot help his/her behaviour

Katz v Katz (1972)

The husband suffered from manic-depressive illness accompanied by paranoid or schizophrenic features

He was rigid and obsessive

Accused his wife unreasonably of sexual misconduct

She was driven to attempted suicide

Katz v Katz (1972)

The wife was granted a decree

To determine whether such behaviour on the part of a respondent who is mentally ill and lacks the capacity to form any intention reaches the quality and standard envisaged by the behaviour fact, the test to be applied is whether after making allowances for his disabilities and the temperaments of both parties, the character and gravity of his behaviour is such that, in the opinion of the court, the petitioner cannot be reasonably expected to live with him

Thurlow v Thurlow (1976)

The wife was an epileptic who, in addition, suffered increasingly from a severe neurological disorder

She was bedridden, incontinent, and displayed bad temper, aggression and became destructive

She was hospitalized, the prognosis being that she would require indefinite institutional care

Thurlow v Thurlow (1976)

The husband was given a decree

It was said that „behaviour” included negative conduct, e.g. prolonged silences or total inactivity, as well as positive conduct

It included conduct which was involuntary and resulted from mental or physical illness or injury

The court took account of the obligations of marriage („in sickness and in health”) but it had to take into accountthe effect on the health of the petitioner and his capacity to bear the stresses imposed

Desertion

The petitioner must satisfy the court that the respondent has deserted them for a continuous period of at least two years.

Desertion: four elements

1) de facto separation between the spouses

2) animus deserendi – an intention to remain separated from the other

3) there is no desertion if separation is by consent

4) if one has a reasonable cause or reasonable excuse for leaving the other, s/he is not in desertion (e.g. when a Muslim man took a second wife against the will of the first one, it was held she had a reasonable cause for leaving him, and was not in desertion)

Two years separation and consent

If the parties have lived apart for a continuous period of at least two years and the respondent consents to a divorce, the petitioner is entitled to a divorce.

The parties are to be treated as living apart unless they are living with each other in the same household – this is not the same as living together in the same house (Fuller v Fuller)

Consent

Consent – a positive requirement

The mental capacity – the same as that required for marriage: does the respondent understand the nature of his consent, and appreciate the effect and nature of giving it?

Respondents must be given such information as to enable them to understand the effect of the decree

Five years separation and no consent

If the parties have lived apart for a continuous period of at least five years, the petitioner is entitled to a divorce, whether or not the respondent agrees.

This means that a spouse can be divorced against his/her will, even where she is blameless and even where she does not believe in divorce

Stages in obtaining a divorce

1. The DECREE NISI: the court is satisfied that the petitioner is entitled to a divorce. Once this is granted, the petitioner must wait for a minimum period of six weeks before applying for

2. the DECREE ABSOLUTE, which is the final stage in the divorce.

The reason for the gap: to give an unsuccessful respondent an opportunity to appeal against the granting of the decree absolute

The Family Law Act 1996General principles

Institution of marriage should be supported

The parties should take all steps to save the marriage

The Family Law Act 1996General principles

A marriage which has irretrievably broken down should be brought to an end

With minimum distress to the parties and to the children affected

Promoting as good a continuing relationship between the parties and any children affected as is possible in the circumstances

Without costs being unreasonably incurred

Any risk of violence should be removed or diminished

A timetable for divorce procedures under the Family Law Act 1996

0 months ‘information meeting’

3 months Statement of marital breakdown (cannot be made until the parties have been married at least 1 year)

9 months The period of reflection and consideration starts; marriage counselling; arrangements for children and financial arrangements

9-15 months If there are no children, the parties can apply for the divorce order

The Children Act 1989

Under this Act, the court can make a variety of orders regarding children:

Contact order

Residence order

Prohibited steps order

Specific issues order

Contact order

Requires the party with whom a child is living to allow the child to visit or stay with another party or parties on a regular basis

Concern about domestic violence

Residence order

Settles arrangements about where the child is to live

Shared or joint residence order can be made


Designed to prevent a party from taking certain steps in relation to the children which might be to their detriment (e.g. taking them abroad to live permanently, preventing a child’s school, religion or surname being changed)

Specific issues order

Determines specific issues that have arisen regarding care of the child (e.g. a child’s medical treatment, education)

STATEMENT OF ARRANGEMENTS

When applying for a divorce in a marriage in which there is a child or children, the petitioner must also send a statement of arrangements for the children to the court which sets out the arrangements proposed for the children after the divorce

Factors taken into account

The wishes of the child Their physical, emotional, and

educational needs The likely effect of any change The child’s age, background and

characteristics Any harm the child has suffered or

might suffer in the future How capable the parents are of

meeting the child’s needs

Property: (a joke)

A wealthy businessman asks his wife what she would like for her birthday: ‘a car, jewellery, perhaps?” She replies: „Honey, I want a divorce” „Hell, I can’t afford that”, comes the shocked reply

Financial consequences of divorce

Most husbands – in a much more powerful position than their wives

The division of labour in the family adversely affects the economic viability of women, esp. when they have children

There is evidence that on divorce, women suffer most, men come out of marriage better-off

The law is attempting to redress this imbalance

The origins of financial provisions

The ecclesiastical courts offered wives some financial protection: they could order the husband to pay alimony pending suit and permanent alimony after granting a separation a mensa et thoro

With the introduction of divorce in 1857, this power was vested in the Divorce Court

In 1963 a lump sum order was accepted

1973 the Matrimonial Causes Act

The settlement culture

Most couples do not go to court but settle their financial arrangements by agreement

Disadvantages: 1) the terms of the settlement may reflect an imbalance of power between the parties; 2) it is lawyers who decide, not the parties

Property rights

Property adjustment order

Periodical payments order

Pension sharing order

Lump sum order

Order for sale of property

Consent order


An order affecting the rights of ownership of property of either spouse, or both, e.g. the transfer of the matrimonial home to one party or the other.

Periodical payments order

An order that one party must pay a regular sum of money to the other party

If they are not paid, enforcement proceedings can be brought; not easy to enforce unsecured payments

Secured periodical payments – protected even if the payer becomes bankrupt

Periodical payments cease to have effect on payer’s death (unless secured), and on the remarriage of the payee

Pension sharing order

An order providing for one party to claim a share of the other party’s pension entitlement.

Lump sum order

An order for the payment of a specified sum of money

The most important use of lump sums – to adjust the parties’ capital assets

Routine in cases where the husband is wealthy

May be ordered if the wife needs a capital sum e.g. in order to purchase a house or set up a business

Consent order

Arrangements between the parties

Usually in the case of an ‘amicable’ divorce

Drawn up by a solicitor, but it has to be formally approved by the court

Factors taken into account

The income and earning capacity of the parties The financial needs and obligations of each

party The standard of living enjoyed by the family

during the marriage The age of each party and the length of the

marriage Any disabilities from which either party may

suffer The contribution made by each party during the

marriage The conduct of the parties does not usually

have a bearing on the nature of the financial settlement

Divorce statistics (UK)

1961-1991: fivefold rise in the divorce rate

Divorce rate has risen from 4.7 in 1970 to 13.7 in 1999

In 2003 the median duration of a marriage: 11.3 years

1 in 4 children will be affected by divorce by the time they are aged 16

69% divorces – granted to wives

Social explanations for increasing divorce

Society’s attitudes towards marriage have changed; people stay in intimate relationships only as long as they meet their goals of personal fulfilment

Increased life expectancy

Increased work pressures

Financial independence of women

AdulteryCleary v Cleary 1974

The wife left the husband for another man, but then returned to him for a few weeks before leaving again, this time to stay with her mother. The husband petitioned for divorce.


Held: A divorce would be granted to the husband as he had established both her adultery and the fact that he found it intolerable to live with her


Commentary: The significance of this case lies in the decision that the intolerability of living with the respondent need not be related to the respondent’s adultery. The petitioner can obtain a divorce if the respondent has committed adultery, regardless of whether the adultery was the cause of the marriage breaking down. There is no need to show that a reasonable person in the petitioner’s situation would have found it intolerable to live with the respondent: all that is needed is a statement that the petitioner finds it intolerable

Unreasonable behaviourLivingstone-Stallard v Livingstone-Stallard, 1974

The wife petitioned for divorce on the basis that she could not reasonably be expected to live with her husband, who had constantly criticised her, telling her that wives had to be subservient to their husbands in order to be happy


Held: The decree would be granted. The correct approach was to ask whether any right-thinking person would conclude that the respondent had behaved in such a way that the petitioner could not be reasonably expected to live with them, taking into account the circumstances and the personalities of the parties


Significant point: the emphasis on the objective element in the test applied by the courts: a decree will not automatically be granted simply because the petitioner believes that the respondent has behaved in a way that is unreasonable, but only if he or she can convince the court that it is objectively unreasonable to expect future cohabitation

DesertionSaunders v Saunders 1965 The wife left the husband after

almost 5 years of marriage, alleging desertion on the basis of his conduct towards her (expecting her to work long hours in their shop, even when she was heavily pregnant, failing to give her support when there was trouble between her and her parents-in-law, opening her mail against her wishes, and displaying a lack of consideration for her)

DesertionSaunders v Saunders 1965 Held: The conduct complained of was

capable of amounting to constructive desertion. The test to be applied was whether the other spouse “had been guilty of such grave misconduct that the only sensible inference is that he knew that the complainant would in all probability withdraw permanently from cohabitation with him, if she acted like any reasonable person in her position”

Constructive desertion

when one partner causes the other partner to leave the marital home through misconduct.

If one partner is forced to leave the home because the other’s misconduct, he or she has been constructively deserted.

In this regime, the conduct of one spouse makes it impossible for the other to stay in the marriage.

Constructive desertion

Physical or mental cruelty to the spouse can constitute constructive desertion. Moreover, refusing sexual intercourse can often be held to be constructive desertion. In some cases, requiring a spouse to live with intrusive or abusive in-laws was held to be constructive desertion, as was refusing to relocate to a new town or state.

DesertionSaunders v Saunders 1965 Commentary: it is not necessarily the spouse

who leaves the matrimonial home who is in desertion. The concept of “constructive desertion” dates back to 19th c., but the need for such concept is reduced since the grounds for divorce have been expanded. Today fewer than 1% of petitions allege desertion

SeparationFuller v Fuller, 1973

The husband and wife lived together until 1964, when the wife moved in with another man. In 1968 the husband suffered a coronary thrombosis and was told by his doctor that he should not live on his own. Upon his discharge from hospital he went to live as a lodger in the house where his wife was living, paying a weekly sum. He ate some meals with the family, and the wife did the washing for the whole household. In 1972 the wife petitioned for divorce on the basis of five years’ separation. The petition was dismissed on the grounds that they were not living apart.


Held: The appeal would be allowed. The parties were not living with each other in the same household within the meaning of the statute, as they were not living together as husband and wife


Commentary: The case illustrates that a husband and wife may be living apart for the purposes of the statute even if they are living under the same roof. While the wife was performing certain household tasks, she was not performing them for the husband as a husband, but as a lodger

Legal terms

Contracting party

Ugovorna stranka; ugovaratelj

Breach of contract

Kršenje ugovora, povreda ugovora

Compensation

Naknada, odšteta

Legal terms

Punitive

Kazneni

Marriage breakdown

Prekid bračne veze, poremećaj bračnih odnosa

Life sentence

Doživotni zatvor

Legal terms

Proceedings

Sudski postupak, parnica

Petitioner

Podnositelj zahtjeva (za razvod)

Respondent

Tuženi supružnik (kod razvoda)

Legal terms

Validity

Pravomoćnost, pravovaljanost

Prayer

Tužbeni zahtjev (kod razvoda braka)

Custody

Skrbništvo nad djecom

Legal terms

Suit

Zahtjev za rastavu braka

Pending suit

Parnica u tijeku

Ancillary relief

Financijska pomoć (kod razvoda)

Legal terms

Order Nalog, sudsko rješenje Provision Zbrinjavanje Lump sum Paušalna svota

Legal terms


Sudski nalog o podjeli imovine


Nalog o postupcima koji su zabranjeni

Legal terms

Petition

Tužbeni zahtjev

Registry

Prijavni ured

Registrar

Voditelj registra; referent

Initial letter from petitioner’s solicitor to respondent’s solicitor TURNER 7 Old Hall Street

JONES Oxford SMITH OX1 7 PB & CO telephone: +44(0)1865 email: info@tjs&co.com

Your reference Our reference NLM/GRE.1-1 Date 17 April 20-

Messers Hatton, Moor & Lesley 35 Franklin Road Reading RG 9 DZ FAO Frank Barnstaple

Dear Sirs

Our client: Mary Greaves

Your client: Anthony Greaves

We have been instructed...

We have been instructed by Mrs Greaves in relation to matrimonial matters and understand that you are in receipt of instructions to act for Mr Greaves.

Kindly confirm that this is the case

Our client has come to the view that the marriage has irretrievably broken down. She wishes to petition for divorce on the grounds of your client’s adultery with Michelle Lampton. We understand that your client is prepared to admit to this for the purposes of the divorce petition. Kindly confirm.

We understand that it is agreed between our respective clients that the children will continue to live with our client at 35 Rignton Crescent after the divorce, and that your client will have regular contact with them, perhaps every Saturday. This should initially take place at 35 Rington Crescent, and our client does not wish the children to be introduced to Ms Lampton until they feel more settled with the new arrangements.

With regard to financial settlement, please provide full disclosure of your client’s income, outgoings, and assets. We have asked our client to collate her financial documentation and will revert to you with this shortly.

We look forward to hearing from you.

Yours faithfully

Turner, Jones, Smith & Co.

Reply from respondent’s solicitor

Hatton, Moor & Lesley 35 Franklin Road Reading RG 1 9 DZ telephone: +44(0)118

673770 fax: +44(0)118 673771 email:

enq@hm&les.co.uk

your ref. NLM/GRE.1-1 our ref. FWB/GRE. 2-1 Messers Turner, Jones, Smith & Co 7 Old Hall Street Oxford OX7PB

WITHOUT PREJUDICE

Dear Sirs,

Our client: Anthony Greaves

Your client: Mary Greaves

Thank you for your letter of 17 April 20-. We confirm we are in receipt of instructions to act for Mr Greaves.

With regard to the specific points you raise:

1 Our client is prepared to admit adultery provided that your client agrees to the divorce costs being split 50/50.

2 Contact proposals: these are agreed by our client.

3 Financial disclosure. Our client’s financial documentation is enclosed. Kindly acknowledge receipt. We look forward to receiving reciprocal disclosure in due course.

Yours faithfully,

Hatton, Moor & Lesley

Enc. Financial documents

In most cases, if the court accepts the allegations made by the petitioner in the divorce petition and accordingly grants a divorce, the respondent will be obliged to pay the legal costs incurred by the petitioner in applying for the divorce. These include the solicitor’s fees as well as the court fees

WITHOUT PREJUDICE

It ensures that, in the event that Mrs Greaves does not agree to the 50/50 division of the divorce costs, Mrs Greaves’s solicitors wil not be able to present this letter to the court as circumstantial evidence of his adultery

Documents

Divorce UNIT 23. Preview Definition History Grounds for divorce Stages in obtaining a divorce Court orders Cases