Divorce Problem Question - Family Law PDF

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Family Law Problem Question - Divorce...

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1. Joe and Candace had married for 18 months subject to the marriage arrangement by their families due to their strong business connection. Although Candace was against marrying Joe but felt that she had no choice and carried on with the marriage. Joe had resisted marrying with Candace in the past. Prior marriage they have met several times and was not attracted to each other. After marriage, both of them slept in different bedrooms as Candace felt she could not have intercourse with someone she’s not fond of. She feels lonely and suspect Joe had someone. She felt depressed but was unable to voice as she’s afraid that her parents will put the blame on her. Candace then met Louise and had an affair with him, she’s pregnant with Louise’s baby. As per Lord Penzance, ‘Marriage’ carries a meaning of ‘voluntary union for life of one man and one woman to the exclusion of all others’ in Hyde v Hyde. However, it must be note that there’s no single definition for marriage and the enactment of Marriage (Same Sex Couples) Act 2014 had made the definition outdated. Marriage is then regarded as an arrangement which state has an interest and parties to marriage cannot terminate or create marriage at will. Where there’s marriage there will be and end of marriage. This will be regarded as divorce and nullity, where both hold distinctive meanings. Divorce is where the formation of marriage is lawful and a sequence of issues that brought the relationship to an end. While nullity exist when there’s defect upon the creation of marriage and making it ineffective. ‘Nullity’ is important as it defines who may and may not marry. A marriage can be deemed valid, void, voidable or as a non-marriage. If Joe and Candace were to end the relationship, they can establish divorce by proving grounds on s1(1) of Matrimonial Causes Act 1973(MCA) that their marriage is irretrievably broke down and facts of adultery and prove intolerability, Goodrich v Goodrich, with each other under s1(2)(a), as Candace had committed adultery and Joe had been suspected to be committing adultery as well, provided they did not touch the bar of living together for 6 months. But Candace is unable be able to rely on her own adultery, hence she may need to demonstrate Joe had committed adultery on balance of probabilities, Serio v Serio. It was said that Joe had always been away for business abroad, but it is unsure whether Joe had deserted Candace for 2 years for her to be applicable for the grounds of desertion, besides since Candace did know that Joe is traveling abroad, she might have consented to it and may not be able to prove ground under s1(2)(c), Nutley v Nutley. If Candace was unable to

establish both s1(2)(a) and (c), all she can do is either by proving ‘unreasonable behaviour’ by inserting that Joe had left her lonely during the marriage or separation for 2 years if Joe were to consent or 5 years if he does not consents. However, in the case it was shown that Louise thinks Candace might be able to end her marriage without the stigma of divorce. Since Joe and Candace is married for 18 months more than one year, hence divorce petition will be available under s3(1). We will then look into the facts of whether Candace did have the right to make her marriage void or voidable. As mentioned above, marriage can be deemed void, voidable and non-marriage. A marriage is void when the in law the marriage has never taken place and anyone can seek to declare it, while voidable marriage is an existing marriage which can be annulled by party to the marriage after facts proven to court, De Reneville v De Reneville. Non-marriage is nothing and has no legal power to it, it will be treated as it is unmarried couple without the benefit of applying financial orders or redistribution of property. A marriage is usually void when it falls under grounds which reflects public policy under s11, MCA. From the facts shown, it doesn’t seem like Joe and Candace marriage is void as they’re not blood-related, above 16, is not married to someone else nor was in a marriage with more than 2 persons. As for formalities, facts did not mention but we will take it as they fulfilled the formalities of marriage and hence, grounds on void marriage will not be applicable for Candace. The only choice left for Candace is to annul her marriage under voidable grounds if she wants to prevent stigma of divorce. A voidable marriage may not show that there’s public objection to it but rather there’s a significant flaw to the marriage that the party wished to annul. To establish voidable marriage, parties will need to satisfy the grounds under s12. On the facts, Candace have shown that her marriage is an arrangement by her parents and she was forced to marry Joe as she has no choice. Since Candace did not validly consent to the marriage, she might want to rely on s12(c) of mistake, unsoundness of mind and duress. As under Art16(2) of Universal Declaration of Human Rights 1948 had stated that marriages shall only be entered with full consent of the intending spouse. Following the jurisdiction of court of appeal on case of Hirani v Hirani, Candace may need to show that her consent was brought by pressure, threats or any other which overbears the will of hers. Following Hirani, Colderidge J in P v R had stated that sever emotional pressure may also constitute to no

valid consent to marry. Candace felt that ‘she had no choice’ and found that she’s depressed but afraid that her parents will blame her, this may constitute to Candace fear of the emotional pressure asserted by her parents. According to H v H and NS v MI the threat can arise from a 3rd party it need not to be asserted by the spouse, hence pressure asserted by Candace’s parents is applicable. While determining duress court will consider test under Buckland v Buckland the focus is on whether threat done on Candace is reasonable or unjustifiable. But Candace fear does not seem to be at a reasonable standard, where Szechter v Szetchter which states that fear must be reasonably held, since any reasonable person would discuss or argue with their parents before submitting themselves into the pressure, it is unlikely that Candace fear show reasonableness. But if court follows the test of Scott v Selbright Candace will satisfy the ground as long she the pressure and threat that she felt was honestly held, court will more likely allow this as it is unjust to punish an individual by her mistakes. However, if Candace consent is due to sense of duty to her parents, then her consent may be a valid one, Singh v Singh, as we can see from the fact that she did met Joe a few times which may constitutes to her sense of duty arising. Hence, ground on s12(c) may not be able to establish. Following the case, it was shown Candace and Joe slept and different bedrooms and she does not feel like having intercourse with Joe. This may fall under ground of incapacity or wilful refusal to consummate, s(12)(a) and (b). ‘Inability’ means it cannot be cured or requires a life-threatening surgery, S v S, and can be either physically or psychologically. Candace may want to rely on her incapability by proving ‘invincible repugnance’ and ‘paralysis of the will’, G v G. But since her inability is due to she’s not attracted to Joe court will regard this as merely lack of attraction towards partner, Singh. As for wilful refusal, although it does show that Candace is lacking a just excuse for wilful refusal of consummation, Horton v Horton, but only Joe can apply for this ground as Candace cannot rely on her own refusal. Hence, both grounds are not satisfied. But if Joe is willing to apply then court may grant the marriage voidable. Candace is pregnant with Louis’s child. This falls under ground of pregnancy by another, s12(f). It is obvious that Joe is not aware of the child since he’s always travel around, and he may be able to rely on the ground. However, the pregnancy must occur at the time of

marriage ceremony, so even if Joe wants to apply, court may not allow, as the pregnancy was after the marriage. In conclusion, following the facts above the marriage may not be able to be nullify by Candace on grounds of voidable marriage. It is either Candace choice to apply for divorce under s1(1) and (2) by proving irretrievable breakdown and one of the five facts, or Joe to apply under voidable grounds of wilful refusal of consummate by Candace to nullify the marriage, Joe may be willing to do so as Candace is pregnant with Louis’ child and he was forced to the marriage as well. However, if Joe does not want to apply, then Candace will need to apply divorce or else she would not be able to enter into marriage with Louis as it will be void under s11(b) and Candace will commit bigamy crime, Khan v UK. (1545 words)...