Divorce

Question 1

Buffery v Buffery

CA

CA approved Dunn test

Answer 1

One fact much be proved.

H and W had been married for 20 years; their children had grown up and left home. H and W had gradually “drifted apart”; W complained that H did not take her out, that they had lost the ability to talk to each other, and that they had “nothing in common”. Her petition for divorce was denied: although the marriage had apparently broken down, W had not shown any unreasonable behaviour on H’s part and so had failed to satisfy the requirements of s.1(2)(b).

the parties had grown apart and could no longer communicate, but would have to wait to obtain their divorce on a separation fact. However, there is no need to prove that the ‘fact’ caused the breakdown. Once the ‘fact’ is proved, the court must grant aa decree of divorce, unless it is satisfied on all evidence that the relationship had not irretrievably broken down. This effectively requires the petitioner to prove their ‘fact’, and leaves respondents with the uphill task of trying to persuade the court that the relationship remains viable (s1(4) MCA.

wife alleged that her husband was insensitive, never took her out, nothing in common to talk about. Her petition was dismissed as her husbands behaviour was found to be too insufficient.
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Question 2

Le Marchant v Le Marchant [1977]

Answer 2

petition for divorce on bases that they had not be living together for 5 years. Wife said that marriage had not irretrievably broken down. Held: divorce decree, because what respondent felt was irrelevant.

Question 3

Grenfell v Grenfell

Answer 3

No duty of court to enquiry beyond one of the facts. Wife petitioned for divorce on bases of husband’s behaviour, husband replied and agreed marriage had broken down but he denied that was due to his behaviour, he sought a decree on basis that they lived apart for 5 years, wife then agreed but argued that because she was a Christian, she said her conscious would be broken if the marriage broke down based on separation. Court held: because wife had admitted they lived apart there was no need for further enquiries.

Question 4

Biggs v Biggs

Answer 4

A decree absolute was refused where the parties had cohabited for 6 months following adultery. Since the 6 months of cohabitation exceeded 6 months after the knowledge of adultery.
Held: no discretion

Question 5

Kim v Morris

Answer 5

Same as Biggs v Biggs

Question 6

Dennis v Dennis

CA

Answer 6

Adultery - It must be heterosexual sex

– adultery cannot occur unless there is some penetration. It is not necessary that there is a complete sexual intercourse, if there is a penetration by a man of the woman, adultery may be found.
Therefore, attempts at intercourse, and the actual commission of lesser sexual acts, were held to be insufficient. The effect of intoxicants on the respondent my not be so serious as to render intercourse involuntary. If voluntarily consumed alcohol disinhibits the respondent, causing his to have sex when he would not have done so sober, and even if he has to memory of the event, the intercourse may still be adultery.
Contrast case where the intoxication deprives the respondent of the power to give any valid consent to intercourse.

s1(6) MCA 1973

Question 7

Redpath v Redpath

Answer 7

Wife was raped; husband cannot then claim wife has adulterer.

Held: once the act of intercourse is established, the burden is on the respondent to show that the act was one which was forced upon her will.

Question 8

Goodrich v Goodrick

Answer 8

Adultery is subjective

it intolerable to live with the respondent is a subjective test. In relation to intolerability it is whether THIS petitioner find it impossible to live with THIS adulterer.

Question 9

Cleary v Cleary

Answer 9

Adultery and intolerability does not have to be causally linked.

Question 10

Which is easier adultery or behaviour?

Answer 10

Adultery because it is a subjective test (Goodrich v Goodrich)

Behaviour is objective (Livingstone-stallard)

Question 11

Carr v Carr

Answer 11

underlines fact no connection between adultery and intolerability is necessary. The 6 months’ clock starts running since last known incident.

Question 12

Bannister v Bannister

CA

Answer 12

W petitioned for divorce on the grounds of H’s unreasonable behaviour. He had not taken her out for two years, he himself stayed out at night without telling her where he was going, he did not speak to her at all unless it was unavoidable, and he generally led an independent life so far as possible. Allowing W’s appeal against the judge’s refusal of her petition, Ormrod LJ said the phrase “unreasonable behaviour” was a convenient but misleading shorthand. The test was not whether H’s behaviour was unreasonable in itself, but whether it was such that W could not reasonably be expected to continue living with him.

It is a linguistic trap

Question 13

Livingstone-Stallard v Livingstone-Stallard [1974]

Answer 13

An accumulation of trivial incidents could constitute behaviour problems.

Wife petitioned for divorce on husbands behaviour, he abused and criticised her and put down her behaviour and attitudes, she said she could not be expected to live with her. Husband said marriage didn’t break down irretrievably. Held: granted petition, when deciding if behaviour was such that petitioner could not live with it, they have to take into account circumstances and characteristics and personalities of the parties.

‘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 characters and personalities of the parties?’ (Dunn, J. at p54)

Approved in Buffery v Buffery and O’Neill v O’neill - these are CA so important.

Question 14

O’Neill v O’Neill

CA

Answer 14

authority of this endorsing the Dunn test. Objective test wife cannot reasonably be expected to live with him. But has to consider parties involved.

Question 15

Birch v Birch

CA

Answer 15

wife thought husband belittled her, COA stressed subjective element of test, Court emphasised the wife’s sensitive nature. Divorce was granted even though no guilt or blame. If you look at cases you will find residual notions that divorce will only be allowed where respondent is to blame for his/her behaviour. Example in Ash v Ash

Question 16

Ash v Ash [1972]

Answer 16

Wife beledged that husband was violent when drunk husband admitted behaviour and claimed marriage had not irretrievably broken down. First question was whether petitioner meant petitioner in case or reasonable petitioner, court held that it meant the particular petitioner in case. In case the particular petition was not the sort of person who was reasonable expected to live with the husband. In judgement, a violent petitioner might be expected to live with a violent respondent.

‘…it seems to me that a violent petitioner can reasonably be expected to
live with a violent respondent. A petitioner who is addicted to drink can
reasonably be expected to live with a respondent similarly addicted…a
flirtatious husband can reasonably be expected to live with a wife who is
equally susceptible to attractions of the other sex…’ (Bagnall, J. at p140)

This seems to return to the guilty party, suggestion is that if both parties are guilty then divorce is not available using behavioural fact. Highly questionable if that would be enforced today, it does not make sense. Unlikely to be followed today.

Question 17

Pheasant v Pheasant

Answer 17

Low sex drive

husband petitioned for divorce for fact wife could not give him spontaneous nature that he required. Wife said marriage hadn’t broken down and that she would be happy to have him back. Husband was refused divorce because failed to prove that wifes behaviour satisfied the behaviour fact. Court held wifes behaviour had not breached any obligations of marriage. By saying that the court introduced the requirement of guilty in 1 subsection 3 which is not necessary on strict reading. Suggestion in case is arguably that behaviour has to be breach of a marital obligation, but not required in statute. But there are limits to what the court will count as behaviour

Question 18

Dowden v Dowden

CA

Answer 18

lose sex drive

husband had low sex drive, wife petitioned for divorce, she petitioned that sex was infrequent and that it was not good. However, petition was refused. Court held husband low sexual urges did not constitute reasonably be expected to live with. Court reached this conclusion because it was down to natural causes rather than a refusal. No element of guilt or blame here.

Question 19

Richards v Richards

1972

Answer 19

Held: it was not unreasonable for wife to live with husband’s
moodiness
occasional violence
silence anad staring
wondering round the night (this happened in thurlow)
and infidelity argument

His behaviour was not such that she could not be reasonably expected to live with him.

Question 20

Thurlow v Thurlow

After the divorce reform act 1969 additions

Answer 20

Authority of behaviour

Behaviour can be positive and negative. Behaviour need not be intentional and it may be unreasonable for petitioner to live with it in the case of illness and no blameworthiness on respondent part.

Negative behaviour: bedridden, could not perform wife job.
Positive behaviour: bad temper, threw objects at mother in law and caused damage by fire.

Court reiterated that there was no need for blameworthiness on part of respondent.

In reaching the decision the judge will have regard to all the circumstances including the

1) disabilities and temperaments of both parties,
2) the causes of the behaviour and whether the causes were or were not known to the petitioner,
3) the presence or absence of intention,
4) the impact of it upon the petitioner and the family unit,
5) its duration,
6) and the prospects of cure or improvement in the future.

But it did suggest obiter that if wife was in coma there would be no behaviour. Was behaviour which was involuntary and stemmed from mental behaviour fall within the section? Yes it can, depending on impact on petitioner.

Spouses may often, but not always, be expected to tolerate more in the way of prolonged silences and total inactivity than of violent language or violent activity

If a spouce was reduced to a human vegetable then there would be no behaviour and it would not be intolerable to live with the person.

Question 21

White v White

Answer 21

husband intended to kill himself, however he then heard a message from god telling him not to kill himself but his wife instead. He told his wife that he was going to kill her. Court held that although husband was not to blame for behaviour, it is not reasonable to expect wife to put up with that.
Question as to whether he can be expected to live with spouse is not easy in cases of mental illness. In light of this case and Burch we have moved away from guilt. There is a division in case law.

Question 22

Bradley v Bradley

CA

Answer 22

husband was repeatedly violent towards wife she eventually applied for divorce but she was still living with him after 2 years. First instance, the judge dismissed petition on petition it could not be unreasonable to expect her to live with him when she was still living with him. COA allowed appeal, it held that a wife who lived with her husband because she had no alternative is not barred from petitioning for divorce and she should be allowed to prove that it is unreasonable to be expected to live with him. Court felt judge at first instant was wrong and good reasons for wife staying with husband. Good reasons for remaining with husband are:

1) Concerned for kids
2) Couldn’t receive alternative housing
3) In physical fear of leaving husband

Question 23

Hopes v Hopes

Answer 23

Desertion

“The husband who shuts himself up in one or two rooms of his house, and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat.” Denning

Question 24

Le Brocq v Le Brocq

Answer 24

Desertion

Wife locked husband out of bedroom and did not talk to him unless it was essential, but she did cook him dinner and he paid her a weekly sum for the housekeeping. In this case the husband failed to establish desertion because although there was a separation of bedrooms, hearts and speaking on the facts they still live as one household. Key is concept of a shared household.

Question 25

Lang v Lang

Answer 25

Constructive disertion

Lord Potter: circumstances for leaving for constructive desertion must be “grave and convincing”

He has deserted her by expelling her: by driving her out.’ (Lord Porter at p417)

Question 26

Nutley v Nutley

Answer 26

Desertion

Husband and wife agreed wife should leave matrimonial home to look after family, a year later, she decided not to return to husband but she did not communicate this to husband. Parents died a few years later and husband filed for divorce on basis of wife’s desertion. Held: not entitled to divorce because wife had not communicated her intention to him so prior to parents death there was no separation, he was still consenting to her absence, and because he consented there was no desertion. It is only necessary that the innocent spouse does not consent to desertion, does not need to have knowledge of this.

• Deserter must have no justification for leaving.

Question 27

Quoraishi v Quoraishi

Answer 27

Desertion

Court held it was justifiable for a wife to leave when her husband took in a second wife so there was no desertion.

Question 28

Hollens v Hollens

[1971]

Answer 28

s1(2)(d) living apart

husband and wife were under same roof but they did not speak nor did they eat or sleep together. Held: they lived apart but whether husband and wife are living apart is a question of fact

Question 29

Mouncer v Mouncer [1972]

Answer 29

s1(2)(d) living apart

husband and wife slept in separate bedrooms, she no longer did washing but cooked meals, they did the cleaning together. The husband stayed only for children. 6 months after he left home he filed to divorce. Held: dismissed petition until husband moved out of the house. Critisisms to make that they are not living together as husband and wife but as parents.

Given the current emphasis placed upon sharing childcare in the ‘post seperation family’ it is arguable that to refuse a divorce in these circumstances today would be less likely, but it was also harsh on Mouncer’s.

Question 30

Fuller v Fuller

CA

Answer 30

s(1)(2)(c) - living apart

husband and wife separated, wife left home and moved in with another man, four years later husband went into hospital with heart condition, he couldn’t live on his own so he went to live with wife. Wife did cooking and washing, he paid for rent. Wife petitioned for divorce because they had lived apart for years. Originally denied, but COA said living together as man and wife not simply as living in same house, here they were living together as lodger and landlady.

‘Section [2(6)] says that [the parties] are to be treated as living apart
‘unless they are living with each other in the same household’. I think
the words ‘with each other’ mean ‘living with each other as husband and
wife’. In this case the parties were not living with each other in that sense.
The wife was living with Mr Penfold as his wife. The husband was living in
the house as a lodger. It is impossible to say that husband and wife were
or are living with each other in the same household. It is very different
from Mouncer v Mouncer where the husband and wife were living with
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’’. (Lord Denning MR at p732)

Question 31

Santos v Santos

CA

Answer 31

s(1)(2)(d) - living apart + desertion

separation facts require mental and physical element.

1) mental element
2) physical element

Communication by word or conduct is not a necessary ingredient.
COA held that living apart required physical separation but this is coupled with a mental element. Physical fact of separation is not enough on its own. One party has ceased to recognise the marriage as ending, this does not need to be the petitioner, this mental element can be mutual or unilateral. Court held that if it is unilateral it does not have to be communicate to other spouse. If one party decides the marriage is over, it does not need to be communicated.

Question 32

Reiterbund v Reiterbund

1975

Answer 32

– the loss of chance of a state widows pension did not count become the wife would get state benefits, so would not be worse off because loss would be compensated for.

Question 33

Banik v Banik CA

Answer 33

– Hindu wife argued that she would be ostracised if divorced, this succeeded initially but then went to a full hearing but found that the likely hardship would not be “grave” in Banik v Banik (no 2). It did count as “other” but it did not count as grave.

Question 34

Archer v Archer

CA

Answer 34

– Rich wife would not suffer grave financial hardship if she were deprived of maintenances from husband if husband would die post-divorce because wife had substantial capital of her own, it could not be regarded as “Grave hardship”.

Question 35

Lee v Lee

Answer 35

husband and wife separated, wife stayed in home husband continued paying mortgage, eventually husband filled for divorce living 5 years apart, his proposal was that they sell the matrimonial home and wife gets half proceeds of sale, wife opposed divorce on hardship because of son, son was ill and needed constant nursing and care from mother. Wife couldn’t move in with son because it was too small and half the proceeds of sale could not move her to a proper house she said there was grave hardship. Held: it was grave other hardship.

Question 36

Julian v Julian

Answer 36

• husband not allowed to divorce wife because if he died before her, she would lose access to police pension. The decision that it would be wrong to grant divorce because it would have left her with a very small income and it was not particularly hard on husband to deprive him of a chance to remarry, even though he had a partner who he did want to marry. UNLIKELY to be followed today.

Question 37

O v O (Jurisdiction: Jewish Divorce)

Answer 37

– wife got a decree of nisi but husband refused to grant her a GET, so wife refused to apply for decree of absolute, husband applied for decree absolute himself under section 9(2), court refuse to make decree of absolute until he obtained a GET. In responcence we not have a section 10A.

Question 38

Old divorce haviour cases vs modern

Answer 38

The older cases indicate that the behaviour needs to be serious, but the recent evidence is that the court will not judge too strictly that which one partner claims is unreasonable for him or her.

Question 39

Why was section 5 introduced?

Answer 39

the five year seperation fact in s1(2)(e) could not was orgininally described as a ‘Casanova’s charter’, allowing an innocent spouse to be divorced against her will. Protection for innocent deserted spouses was put into place.

Question 40

Clarkson v Clarkson

Answer 40

Adultery is the voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom at least is a married person