Behaviour

Question 1

Where is the behaviour fact found?

Answer 1

S 1(2)(b)

Question 2

Although this is the most common fact what does it cause

Answer 2

it causes the most bitterness and upset

Question 3

What test is used to establish behaviour

Answer 3

a partially objective and a partially subjective test in Livingstone-Stallard v Livingstone-Stallard confirmed in O’Niell

Question 4

What is the partially objective and a partially subjective test

Answer 4

would any right thinking person come to the conclusion that the R behaved in such a way that the P cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and personalities of the parties

Question 5

What happened in Stevens v Stevens

Answer 5

a campaign of attrition by the husband designed to secure the wife’s departure of the matrimonial home was held to be sufficient.

Question 6

What happened in Cater-Fea

Answer 6

Financial irresponsibility causing problems for the family was found to constitute behaviour

Question 7

what happened in O’Niell

Answer 7

Overambitious home improvements projects, inter alia, lifting all the floor broads and not replacing them for two years, depositing two tons of rubbles from beneath the floorboards in the garden, and leaving the toilet without a door for eight months, all of which prevented the P and children from conducting any sort of social life from the house.
Also questioning the paternity of children

Question 8

In which cases were complaints about the lack of sexual and intimate life constitute behaviour

Answer 8

Dowden v Dowden, Mason v Mason, Pheasant v Pheasant

Question 9

Will behaviour extraneous to the marriage such as the committal of a criminal offence by the R suffice?

Answer 9

It might do, although the dicta suggests that it must have some reference to the marriage- Katz v Katz

Question 10

What were the facts of Ash v Ash

Answer 10

the wife alleged that the husband was violent towards her when he was drunk. Could she reasonably be expected to live with her husband?

Question 11

What was decided in Ash v Ash and what were its implications?

Answer 11

The judge suggested that a violent P can reasonably be expected to live with a violent R. A P who is addicted to drink can be reasonably be expected to live with a R similarly addicted. This suggests that if both parties are ‘guilty’ then divorce is not available to them. One party should be guilty and the other innocent. These comments were made obiter so it is unlikely that they would actually be followed today.

Question 12

What happened in Dowden v Dowden

Answer 12

husband had a low sex drive, and she petitioned for a divorce. Her undefended petition, was refused. The court held that the husbands low sex drive did not constitute behaviour that she could not be expected to live with. The court reached this conclusion as held the behaviour was natural disinclination on the part of the husband, it was not a simple refusal to fulfil marital obligations, so no element of guilt or blame. This raises a problematic distinction when the notion of blame arises.

Question 13

What happened in Pheasant v Pheasant

Answer 13

husband petitioned for divorce on basis wife could not give him the spontaneous affection that he demanded. Wife denied the marriage had broken down and wanted him back. The court refused the husbands petition holding he had failed to prove that the wife’s behaviour satisfied. The court said her behaviour had not breached any of the obligations of marriage. So, the court introduces guilt in S 1(2)(b) which is not necessary.

Question 14

What were the facts of Thurlow v Thurlow

Answer 14

The wife for many years suffered from epilepsy and a sever, worsening, neurological disorder which ultimately requiring full-time institutional care. The husband, who knew about the wife’s condition before the marriage and that it might deteriorate, had done his best to care for her at home; their relationship had become more like patient and nurse.Alongside the negative behaviour, positive behaviour was also alleged and proved, in that she displayed bad temper and threw objects at her mother in law, and caused damage by burning various household objects

Question 15

What was decided in Thurlow v Thurlow (Rees J)

Answer 15

negative behaviour can be taken into consideration (although in practice positive behaviour is more likely to satisfy the test), so too could involuntary behaviour.
It must be shown that the behaviour of the R which justifies a conclusion by the court that the P cannot reasonably be expected to endure cohabitation.
The behaviour need not be blameworthy or culpable, especially in the cases of illness.

Question 16

Therefore in cases of illness what will the judges have to considered (Thurlow)

Answer 16

Where behaviour stems from illness, the normal duties and burdens on family are taken into account, alongside the capacity of the P to withstand the behaviour, looking at the impact it has had on him.

Question 17

Which case shows that the behaviour and the evaluation of the impacts of the behaviour on P are linked?

Answer 17

Thurlow v Thurlow

Question 18

What test was preferred in Birch v Birch and O’Niell

Answer 18

in judging the behaviour by reference to P’s capacity to tolerate it, ‘the court would consider to what extent the R knew or ought reasonably to have known of the capacity’

Question 19

Since adultery is unavailable to CPs what does this mean

Answer 19

CPs wishing to complain of sexual infidelity must rely on the behaviour fact, however, this involves a more stringent reasonableness test rather than the subjective intolerability test.

Question 20

Where is the time bar to cohabitation and behaviour found

Answer 20

S 2(3) continued cohabitation of under 6 moths since the last event of behaviour complained of is disregarded

Question 21

In which case was it held that cohabitation of over 6 months will not form a bar where it was unreasonable for the R to continue living with he p

Answer 21

Bradley v Bradley, ‘there are may reasons why a woman will go on lving with a beast of a husband’..’ It seems to me… that there is no logical difficulty in the way of the wife; and the Act plainly envisages that she should have the opportunity of placing her case before the court’