Family Law

Divorce:

The difference between nullity and divorce is that

• A divorce is a termination of what had been a valid marriage
• Nullity is concerned with the validity of a purported marriage from its inception

The current law on divorce is found within the Matrimonial Causes Act 1973. The couple cannot petition within the 1st year of marriage

s 1(2) of the MCA 1973

Fact ONE:

a) The respondent has comitted adultery and 

b) The petitioner finds it intolerable to live with the respondent.

Adultery involves voluntary or consensual sexual inercourse between a married person and a person.

Cleary v Cleary and Hutton (1979)

Facts: The husband reconciled with the wife after she committed adultery. He later found out that she continued to see the other man. This behavior was seen as 'intolerable'.

FACT TWO:

i. The respondent has behaved a certain way AND

ii. The petitioner cannot reasonably be expected to live with him or her

BEHAVIOUR:

Katz v Katz (1972)

Facts: The husband began showing signs of mental illness, and was admitted to psychiatric hospital. He would sit in front of the TV, had no communication with the wife and constantly criticised her. The wife petitioned for divorce. Affected the wife, decree was successful.

Thurlow v Thurlow (1976)

Facts: The wife suffered from epilepsy and her physical and mental condition deteriorated. It was held that her behavior was negative, there was a possibly of declaring a decree has the husband could not cope anymore.

HOWEVER:

Pheasant v Pheasant (1972)

FACTS: The husband stated that his wife was not giving him enough affection. It was held that there was nothing in the wife's behaviour that was unsusual and unbearable to live with

FACT 3:

i. Separation ii. Intention to Desert

Desertion must be a continuous period of 2 YEARS. Even in the same roof, there may be desertion:

Le Brocq v Le Brocq (1964)

The wife and husband put a bolt on the matrimonial home but the wife continued to cook meals for husband and they ate as family. FACTUAL SEPARATION had not been established.

Fact 4: The parties have lived apart for a continuous period of at least 5 years preceding the presentation of the petition. 

Hopes v Hopes (1949). Husband and wife had two daughters, the marriage broke down. The wife occupied another bedroom, initially did not want to be disturbed. They did not have sexual relations but spent time together with the children. It was held that she did not desert her husband as they spent time together. 

A marriage creates legal rights. On the breakdown of marriage, the courts have extensive powers to make financial relief orders 

Financial Relief Orders:

All orders can be made in favour of either party to a marriage. There may be circumstances in which a third party wishes to seek a financial order. 

Three types of ORDERS:

i. Income Orders

s23 of the MCA 1973; sets out the different types of income orders.

ii. Capital Orders

• A lump sum, usually made in cash
• Property Adjustment Orders
• Mesher Order (Order for sale and division postponed during dependence of children).

s25 (2) of the MCA 1973

i. The court must regard all the circumstances of the case

ii. The welfare of the parties minor children; FIRST CONSIDERATION

iii. CLEAN BREAK?

iv. s25 Factors:

i) Children's welfare; children who have not attained the age of 18.

s25 (1) (a)

The income, earning capacity, property and other financial resources (K v K)

Cordle v Cordle:

The courts first concern will be to provide a home for the primary carer and the children. 

The financial needs and responsibilities each of the parties is likely to have in future: Cordle v Cordle (2001)

s25 (2) (c): The standard of living enjoyed by the family before the breakdown.

s25 (2) (d) : The age of each party to the marriage and the duration of the marriage

s25 (2) (e): Any physical or mental disability of either of the parties to the marriage

s25 (2) (f): The contribution made by each parties to the welfare of the family; White v White; 50/50 equal shares of the money

s25 ) (2) (g): The conduct of the parties' inequitable to disregard it.

Wachtet v Wachtet (1973): Conduct must be 'obvious and gross'

M v M (2006): H was an excessive gambler. He did not disclose this information to solicitors. In this case, the conduct was held to be sufficient. 

s25 (2) (h): The value of each parties to the marriage of any benefit which by reason... (clean break)