Family Law Exam - Divorce PDF

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Essay notes on Divorce...

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(A) Petition for divorce 1. Requirements Ground for divorce

There is only a single ground for divorce  “irretrievable breakdown of marriage” S.1(1) MCA 1973

5 facts

The petitioner must satisfy the ground by proving one of the 5 facts S1(2) MCA 1973  adultery  unreasonable behaviour  desertion for 2 years  separation for 2 years  separation for 5 years

2. 5 Facts under S.1(2) MCA 1973 Adultery

Respondent committed adultery – petitioner finds it intolerable to live with respondent S.1(2)(a) MCA 1973  no requirement that the “intolerable to live with” criterion to be due to the adultery o Cleary v Cleary  The Q on “intolerability” is SUBJECTIVE o Ie: does the petitioner find it intolerable to live with the Resp? o Goodrich v Goodrich NOTE: same sex couples CANNOT rely on the fact of adultery  they can only rely on unreasonable behaviour  S.1(6) MCA 1973 Unreasonable behaviour

Resp behaved in such a way that the petitioner could not reasonably be expected to live with the Resp  Objective test: o Ie: the behaviour must be a behaviour that a rightthinking person would think was such that the petitioner could not live with the Resp + take into account of circumstances + characters and personalities of parties o Livingstone-Stallard v Livingstone-Stallard  Requires the court to consider the character and personalities of both parties

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Desertion for 2 years

o Ash v Ash o Both parties were violent – hence App cannot prove this ground Court must disregard cumulative periods of less than 6 months if the parties have lived together after the final incident of unreasonable behaviour – when determining if the petitioner can reasonably be expected to live with the respondent

An unjustifiable withdrawal from cohabitation WITHOUT CONSENT OF SPOUSE

S.1(1)(c) MCA 1973 MUST show actual separation  Le Brocq v Le Brocq  Wife continued to cook husband’s meals  hence, no desertation Separation for 2 years

Parties lived apart for a CONTINUOUS PERIOD of 2 years Respondent MUST consent to the divorce

S.1(1)(d) MCA 1973 However, the parties can still live under the same roof, as long as they lives separate lives  Fuller v Fuller  Husband and Wife stayed under the same roof – but slept in separate rooms  Wife did his washing and cooked his meals  But they clearly treated the marriage at an end Separation for 5 years

Parties lived apart for a CONTINUOUS PERIOD of 5 years NO REQUIREMENT FOR RESP’S CONSENT

S.1(1)(e) MCA 1973 Limitation:  Decree may not be granted if it would cause hardship to the Resp + wrong in all circumstances to dissolve the marriage  Banik v Banik  Status of divorcee would cause hardship for Hindi wife

3. Procedure

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Only able to petition if married for at least ONE YEAR! 2 stages: o decree nisi; o decree absolute decree nisi CANNOT be made absolute until 6 months have passed o S.1(5) MCA 1973 o to allow any objections to the divorce to be made if decree nisi not made absolute  D may apply 3 months from the day the petitioner could have applied Eg case: Kim v Morris o After decree nisi – the couple reconciled and cohabitated for 4 years o When the relationship broke down again, court held she had to petition for a fresh divorce o Her decree nisi did not represent genuine breakdown of the relationship

Civil Partnerships Under the S.44(1) Civil Partnership Act  Application for dissolution order can be made on the ground that the CP has broken down irretrievably Similar to divorce, the applicant has to prove 4 facts to support that ground S.44(5)(a)

Unreasonable behaviour

S.44(5)(b)

Separation for 2 years

S.44(5)(c)

Separation for 5 years

S.44(5)(d)

Desertion for 2 years...