Divorce

Wife applied for unreasonable behavior divorce petition – wanted to return to the matrimonial home in which she had previously left. Sought “ouster order”.

Court originally granted even though saying it was “thoroughly unjust” – for the sake of the children.

Husband appealed to House of Lords – they overturned order stating that “children are not paramount consideration when considering ouster orders”.

H and W had been married for 20 years, children had grown up and left home. H and W gradually drifted apart – W complained that H “did not take her out, that they had lost the ability to talk to each other and they had nothing in common”.

Petition was denied – although the marriage had broken down, W had not shown any unreasonable behavior on H's part. Did not satisfy S1(2)(b).

This case held that the test as to whether the applicant found it intolerable to live with the respondent was a subjective one. It doesn't matter what most people would or wouldn't feel; it only matters whether the petitioner personally finds it intolerable to live with the respondent.

The wife committed adultery. The husband forgave her and they were reconciled. However, this was short-lived and the wife left the husband again. The husband then petitioned for divorce.

HELD - the COA accepted that there was adultery and following the wife's conduct during the unsuccessful attempt at reconciliation the husband found it intolerable to live with her. A divorce was available, therefore, on the adultery fact. It was the behaviour after the adultery that the husband found intolerable to live with.

This case established that there doesn't necessarily have to be a link between the adultery and the intolerability.

Confirms the fact that there doesnt have to be a causal link - in the case, the adultery was established and the part that she found intolerable was that he blew his nose too loud. 

Bagnall J adopted a question “can this petitioner, with his or her character and personality, with his or her faults and other attributes, good and bad, and having regard to his or her behaviour during the marriage, reasonably be expected to live with the respondent

HELD - the court said that the wife personally was the sort of petitioner who couldn't be expected to live with a violent respondent.

Bagnall J suggested that violent/alcoholic/adulterous respondents can reasonably be expected to live with their violent/alcoholic/adulterous counterparts. The implication is that if both parties are guilty, divorce is not possible under the behaviour section. (Remember this is just for the behaviour fact and not the adultery fact; adulterous petitioners can still petition for divorce under the adultery fact if the respondent has been adulterous)..

 Husband petitioned for divorce on the basis that his wife couldn't give him the spontaneous affection that his nature demanded. The wife denied the marriage had broken down and that she'd be happy to have him back.

The court refused the husband's application because he had failed to prove that the wife's behaviour had met the behaviour test, as the wife's behaviour hd not breached any of the obligations of marriage.

There is a limit as to what the count will accept under the behaviour factor.

A wife petitioned for divorce on the basis of her husband's behaviour. Alelgations were that he had abused her and would criticise her and would control her behaviour and attitude. She said that she couldn't reasonably be expected to live like that.

HELD - the court granted the divorce petition and said "when deciding if behaviour is such that the petitioner can't be reasonably expected to live with the respondent, the court must look at all of the circumstances and the character of the parties". This suggests that the test is partially subjective and partially objective. 

"Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him?"

Husband was suffering from a mental illness and was going to kill himself by jumping off a balcony. Just before, he claimed he got a message from god saying to kill his wife and not himself. He told her he was going to "blow her head off with a shotgun".

The court held that even though he was ill, the petitioner couldnt be reasonably expected to live with him. 

Husband was diagnosed with manic depressive illness coupled with features of paranoia and scizophrenia. 
In determining if the petitioner could reasonably be expected to live with the behaviour of the respondent, the court held that the wife was enduring beyond the ups and downs of married life, having considered her personal capacity, and the efforts made in coping with the behaviour of the husband. 

Here, the wife was granted a decree of divorce. 

The husband petitioned for a divorce from his wife. The wife had been epileptic during childhood, and later had developed a severe neurologic disorder. She was very bad-tempered towards her mother-in-law, including throwing objects at her, and also set fire to cushions and towels in the house. She also became a bed-ridden invalid and was unable to 'perform the role of a wife' (highlights that passive behaviour can still = behaviour).

HELD - the courts decided that behaviour which stems from mental illness which is likely to be involuntary can still count as behaviour that the respondent can't reasonably be expected to live with, depending on the impact that it has on the petitioner. The court tried to get away from the idea of needing to assign blame in the behaviour fact in order to obtain a divorce. It was held that the wife's involuntary behaviour was as such that it would not be reasonable to expect the husband to live with her.

If the parties cohabit for less than 6 months after the last instance of the alleged behaviour, the court must disregard this in determining whether it is unreasonable for the petitioner to remain. 

Periods longer than six months can be taken into account by the courts.

The fact consists of two parts - desertion and continuous for two years.

a) Desertion - unilateral decision by one party, made without justification, to withdraw from cohabitation. This in itself contains a number of elements. 

• 1. Seperation: There can be seperation even if the parties live under the same roof. The parties must however, lead totally seperate lifes. 
• 2. Intention to desert: the deserter must have formed the necessary intention to withdraw permanently from cohabitation. If the seperation was agreed or involuntary, there is no desertion. 
• 3. Unilateral decision: if the seperation is agreed, then no desertion. 
• 4. No justification: no desertion if the departed spouse was justified in leaving perhaps cause of violence. 
• 5. Termination of Desertion: desertion will end if the parties officially seperate, eg decree of judicial seperation
• 6. Constructive Desertion: where the behaviour of one spouse forces the other to leave, the spouse who remains is in desertion. For example, moving a mistress into the matrimonial home. 

Desertion continued:

b) continuous for two years: the desertion must last for 2 years immediately preceding the petition. 

S2(5):  any periods of cohabitation of less than 6 months are ignored  but will not contribute to the 2 years calculation. if the parties RE-COHABIT for a period exceeding 6 months, the two year period must start again. 

A wife locked her husband out of the bedroom, and didn't talk to him unless it was essential. However, she did still cook his dinner and he paid her a weekly sum for housekeeping. The husband petitioned for divorce on the basis of his wife's desertion.

HELD - this was not enough. Whilst there was a separation of bedrooms, hearts and speaking, there were still, on the facts, living as one household.

The parties have lived apart for a continuous period of two years before the petition and the respondent consents to the decree.

S2(7): the respondent must have the necessary capacity to consent and to understand the effect of the decree.

The parties must have lived apart for the required period. 

S2(5): the parties will not lose the right to petition if they re-cohabit for a period of less than 6 months. This period will not count in the calculation of the two years. - Cohabitation over the 6 month period means the two years will begin again.

S2(6): "husband and wife shall be treated as living apart unless they are living together in the same household"

The parties can be living apart even if they are under the same roof - Mouncer v Mouncer (see next flash card). 

Husband and wife slept separately in separate bedrooms and the wife no longer did his washing. However, she did still cook his meals, shared the cleaning, and ate together in the company of the kids. The husband only stayed in the house because of the kids. He wanted to carry on living with them and caring for them. However, eventually he had enough and left the house; after 6 months he applied for divorce.

HELD - the court rejected his application, saying that they had only been living apart since the husband had moved out of the house. Almost seems like a punishment for the couple who is willing to put their kids first.

A husband and wife were separated. The wife left the matrimonial home and moved in with another man. Four years later, the husband was admitted to hospital with a serious heart condition. When he was released, he wasn't allowed to live in his own. Instead, he went to live as a lodger with his wife and her new man. The wife did he washing and cooked his meals, and the husband paid for board. The wife then petitioned for divorce on the basis that they had lived apart for 5 years.

Initially, the courts said that they were living together as a household. On appeal, the COA HELD - that "living together" meant living together as man and wife. Here, the courts said that the couple were living together as landlady and lodger.

The same considerations apply as in S1(2)(d), the obvious difference being that the seperation is for five years and consent is not required. 

S2(5): the six month cohabitation rule applies.

If the two or five year seperation facts are pleaded the Act gives protection to the respondent in the following ways:

S10(2) - Where the petition is brought under either S1(2)(d) or S1(2)(e), the respondent can ask the court to consider his/her financial position AFTER the decree nisi. The court cannot make the decree absolute unless it is satisfied:

a) no financial provision should be made for the respondent 

b) that the financial provision made is reasonable in all the circumstances.

S10(3): the circumstances that the court must take into account include:

Age of the parties, health of the parties, earning capacity, financial needs and resources, financial provision on death/divorce.

S10(4): if the petitioner has given an undertaking that s(he) will make financiall provision then the court is likely to grant a decree. 

Only one ground for divorce: "irretrievable breakdown of marriage"

has to be evidenced by one of five facts:

• adultery S1(2)(a)
• Behaviour S1(2)(b)
• Desertion S1(2)(c)
• Two year seperation - with consent. S1(2)(d)
• Five year seperation - with no consent. S1(2)(e)

Most common fact alleged is behaviour and the second most common is adultery.

The respondent had committed adultery AND the petition finds in tolerable to live with the respondent. 

Split into two parts - adultery and intolerability. 

a) Adultery - "voluntary or consensual sexual intercourse between a married person and a person of the opposite sex not being the other's spouse"

• Voluntary or consensual = if a woman is *****/ incapablle of giving consent it cannot be adultery.
• Sexual intercourse = this is the same definition as in **** therefore there must be penetration 
• Person of the opposite sex - homosexual sex is not adultery although it may be within the behaviour fact.

S1(6): Marriage (Same-Sex Couples) Act 2013 has added this subsection: 

"only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section".

b) Intolerability: 

It was thought that one act of adultery may not lead to marriage breakdown, there should be further evidence, hence the introduction of intolerability. 

1. The test of intolerability is subjective: 

• Goodrich v Goodrich - doesnt matter what most people would say and think, it only matter how the particular petitioner feels. 

S2(1): If the parties cohabit for a period of less than six months after the discovery of the adultery, this is disregarded when looking at intolerability.

Periods exceeding six months are an absolute bar to using the fact.

No causal link needed between adultery and intolerability - Cleary v Clearly. 

Confirmed in Roper v Roper - blowing nose too loud. 

The respondent has behaved in such a way that the petitioner cannot reasonably be expected to remain with the respondent. 

- The petitioner may find the respondents behaviour such that the petitioner cannot remain. The fact therefore allows this petitioner to get out of a dead marriage. The fact is NOT unreasonable behaviour.

The test is subjective in that the court is looking for the effect on this petitioner and not a reasonable petitioner. The court also takes the characteristics of both parties into account.