Chapter 4 Divorce, Dissolution and Judicial Separation

Question 1

The wife petitioned for divorce from her husband after nearly 40 years of marriage. She cited his behaviour as the reason for the breakdown of the marriage and the husband defended the divorce. The wife previously had an affair and at the time of the petition the couple had been living apart for some time, nevertheless the judge found “no behaviour such that the wife cannot reasonably be expected to live with the husband. The fact that she does not live with the husband has other causes”. Mrs Owens had to remain married to Mr Owens until the 5 year period of separation has ended in 2020.

Answer 1

Owens v Owens (2018)

Question 2

Adultery - There must be sexual intercourse. This does not have to be a complete act of intercourse but there must be some penetration of the vagina.

Answer 2

Dennis v Dennis (1955)

Question 3

Adultery – the sexual intercourse must be voluntary. A victim of rape does not commit adultery.

Answer 3

Clarkson v Clarkson (1930)

Question 4

There may often be a link between adultery and intolerability but this is not essential. The applicant may be unable to tolerate the respondent for a completely different reason.

Answer 4

Cleary v Cleary (1974)

Question 5

Behaviour – constant criticism from a self-opinionated spouse.
“Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and personalities of the parties?”

Answer 5

Livingstone-Stallard v Livingstone-Stallard (1974)

Question 6

The respondents behaviour may be entirely involuntary and understandable in the circumstances but it may still be unreasonable to expect a spouse to live with them – e.g. a respondent suffering from a mental illness.

Answer 6

Thurlow v Thurlow (1976)

Question 7

The applicant failed to satisfy the court that there had been separate households. Although the parties had slept in separate rooms, they ate their meals together and the wife did most of the housework for them both.

Answer 7

Mouncer v Mouncer (1972)

Question 8

There are circumstances where it will be insufficient to show that the parties are living apart in a physical sense, as there may be good reason for this. A spouse may be working abroad, the parties may have jobs in different cities or one of them may have to look after a sick relative. In these circumstances, they will not be living apart, in a legal sense, unless and until one of them decides that the marriage is over.

Answer 8

Santos v Santos (1972)

Question 9

The wife’s s5 defence succeeded on the basis that she would lose a substantial widow’s pension on divorce. The husband’s petition was adjourned to allow him to make financial proposals which would ensure that the wife would not suffer grave financial hardship.

Answer 9

K v K (Financial Provision) (1997)

Question 10

The wife had lived in Sicily away from her husband for 25 years. She alleged that she would not be accepted in the community if divorced. The defence failed. She had not shown that the divorce would make any difference to her social status as she had been living as a separated wife for so long.

Answer 10

Rukat v Rukat (1975)

Question 11

Both parties were Hindu. The wife claimed that divorce would make her a social outcast and also deny her the spiritual benefit of dying as a married woman. The defence did not succeed, as the wife failed to establish that she would suffer in the manner alleged.

Answer 11

Banik v Banik (1973)