2 and 5 years separation Flashcards
Where is the two years separation fact found
S 1(2)(d)
What must the R have for the P to be able to rely on this fact
consent
What does S 2(6) state
defines with a negative statement ‘a husband and wife shall be treated as living apart unless they are living with each other in the same household
What happened in Hollens v Hollens
- husband and wide remained in the same property, but did not speak of eat together, or sleep together. Court held they were living apart, but question if they lived apart is a question of fact which depends on the circumstances.
What happened in Mouncer v Mouncer
the parties stayed under the same roof and tried to carry on a semblance of normal domestic life for the benefit of their children. They slept in separate bedrooms, but usually ate together (the wife having cooked) and, bedrooms aside, shared the use of the other rooms; they both worked part-time, each doing chores while the other was at work; the wife no longer did the husbands laundry. Could they still be said to be linving apart
What decision was reached in Mouncer
They were still living as the same household
Why has Mouncer been criticised
- The courts approach can be criticised as been unrealistic. Can we say the parties punished for being concerned about their children? Are they living together as parents rather than husband and wife.
The facts of Fuller v Fuller
The husband came back to live in the house, but not as the husband, he was for all intents and purposes a lodger in the house. ‘I think the words with each other mean, living with each other as husband and wife’.
Why is Fuller different from Mouncer
This case was held to be different from Mouncer, where the husband and wife were living with the children in the same household, as husband and wife normally do, but were not having sexual intercourse together. That is not sufficient to constitute living apart. Although Lord Denning attempts to distinguish Mouncer, the contrary argument can be made. If the Fullers were not living with each by virtue of their new status as landlady and lodger, could the Mouncers not similarly be regarded as not living with each other as co-parents?
What does Santos v Santos require
living apart requires physical separation but this is not enough, one party must also must cease to recognise the marriage as existing. So, one party must recognise the marriage as being over, this does not necessarily have to be the P. It can be mutual or unilateral. Where it is unilateral it does not need to be communicated to the other spouse.
What did Sachs LJ hold in Santos v Santos
at what point do one party or both regard the marriage as no longer subsiding but as a mere shell- concerned about rubber stamping exercise.
What must consent be
R must have consent. It must be positive, a mere failure to object is not sufficient, it must be full and fully informed, and R must have had the necessary information to be able to understand the consequence of consenting to the decree.
which case held that consent must exist at the time of the decree
Beales v Beales
Where is the five year bar to separation found
S 1(2)(e)
Why is S 1(2)(e) different from S 1(2)(d)
no consent is required from the R, therefore allows to be divorced against will even if there is not matrimonial offence committed- this creates concern for older women.
