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Family Law > Divorce > Flashcards

Divorce Flashcards

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1
Q

Why were there few divorces prior to the Matrimonial Causes Act 1857?

A

Had to have a private act of Parliament.

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2
Q

Briefly describe the 1857 Matrimonial Causes Act.

A

It was fault based, husbands could divorce on wives adultery. The wife had to prove a lot more.

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3
Q

Briefly describe the Matrimonial Causes Act 1923.

A

Made adultery the same for husbands and wives. She could still petition for rape or unnatural offence.

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4
Q

Briefly describe the Matrimonial Causes Act 1937.

A

Extended the grounds so that both could petition on cruelty, desertion for 3 years and incurable insanity.

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5
Q

What is the current law on divorce?

A

Matrimonial Causes Act 1973

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6
Q

What are the two stages of divorce?

A
  1. Decree Nisi

2. Decree Absolute

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7
Q

What was stated in Kim v Morris [2012]?

A

If there is a long delay between decree nisi and decree absolute, the decree nisi can be rescinded.

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8
Q

What are the facts in the case of Kim v Morris?

A

The wife petitioned and obtained decree nisi in 2006. Couple reconciled and lived together for 4 years. They split up again and the wife applied for a decree absolute. Was not granted and decree nisi was rescinded.

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9
Q

Where are the grounds for divorce found?

A

s1(1) Matrimonial Causes Act 1973

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10
Q

What are the grounds for divorce?

A

Irretrievable Breakdown as evidenced by one of five facts:

  1. Adultery
  2. Behaviour
  3. Desertion
  4. 2 years separation with consent
  5. 5 years separation without consent
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11
Q

When can you not petition for divorce?

A

During the first year of marriage

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12
Q

If there is no fact but there is irretrievable breakdown, can the couple still petition for divorce?

A

No, there has to be both elements in order to petition for divorce

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13
Q

What happened in the case of Stringfellow v Stringfellow [1976]?

A

Husband left his wife and family. Three months later the wife petitioned for divorce but she could not show fact so she had to wait until it had been two years with consent

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14
Q

What happened in the case of Biggs v Biggs?

A

Wife granted decree nisi based on husband’s adultery. H was in prison when decree granted and when he came out they lived together. This showed that there was no irretrievable breakdown so she was refused her decree absolute.

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15
Q

What fact is contained within s1(2)(a) of MCA?

A

Adultery

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16
Q

What are the requirements for the fact of adultery?

A

Cannot petition your own adultery.
Petitioner must find it intolerable to live with the respondent however the intolerability does not have to be linked to the adultery.

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17
Q

What is the case of Cleary v Cleary [1974]?

A

Wife had an affair but was reconciled with husband. She then started to see another man and he found this intolerable. It was not linked to the adultery however was enough.

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18
Q

What was established in Goodrich v Goodrich [1971]?

A

Intolerability is subjective

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19
Q

What counts as adultery?

A

Penetrative sex, anal and non-penetrative sex does not count.

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20
Q

What happened in the case of Maclennan v Maclennan [1958]?

A

Couple separated, he went to live in the US. She had a baby girl and her husband tried to divorce her on basis of adultery. She said it had been through IVF. There was no evidence of IVF so he was granted a divorce.

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21
Q

What was established in Clarkson v Clarkson?

A

The sex must be voluntary and not rape.

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22
Q

What happened in the case of Clarkson v Clarkson?

A

Husband worked at sea and came home to find his wife pregnant. She alleged she had been raped, there was evidence. He petitioned on basis of adultery and it was refused as it was not voluntary.

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23
Q

Who holds the burden of proof in adultery cases?

A

Respondent must prove that the sex was voluntary

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24
Q

What happened in the case of Redpath v Redpath [1950]?

A

Wife alleged rape. Man tied but not found guilty. Husband petitioned for divorce. At first instance refused however on appeal it was granted. It was up to the wife to prove it was not voluntary, not husband.

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25
Q

When will adultery be available to same sex couples?

A

When a person has slept with someone of the opposite sex

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26
Q

How can you prove adultery?

A

Usually the petitioner’s word is enough unless it is denied. Then it is up to the petitioner to prove it has taken place.

27
Q

What types of evidence can prove that adultery has taken place?

A

Pregnancy following a long period apart
Circumstantial evidence
Getting an STD

28
Q

What happened in the case of Gleen v Gleen [1900]?

A

Proof that the wife had an STD while she was married but not from her husband was sufficient enough to show adultery.

29
Q

What fact is contained within s1(2)(b) MCA?

A

Behaviour

30
Q

What are the requirements for the fact of behaviour?

A

Must be unreasonable behaviour.

It is considered whether the petitioner can be reasonably expected to live with the respondent after their behaviour.

31
Q

What happened in Bannister v Bannister?

A

H had not taken W out in 2 years, he stayed out all the time and did not speak to her unless he had to. It was now established that the test is whether someone can be reasonably expected to live with this behaviour.

32
Q

What was held in the case of Ash v Ash [1972]?

A

The court must look at the behaviour of both parties to see if it reasonable for them to live together.

33
Q

What behaviour is included?

A 
Physical violence
Collection of trivial acts 
Association falling short of adultery
Negative behaviour 
Other behaviour
34
Q

What are the facts in the case of Bergin v Bergin?

A

Three attacks of violence accepted by the wife as part of married life. But when pregnant he started to throw furniture around. At first instance her petition was denied as her first acceptance of the behaviour however she could not be reasonably be expected to live with this man

35
Q

What happened in the case of O’Neill v O’Niell?

A

Hisband’s DIY (removing bathroom door to cause embarrassment) He also wrote to the solicitors doubting the parentage of his children. Decree was granted.

36
Q

What happened in the case of Wachtel v Wachtel?

A

W had close association with another man but not adultery. Decree was granted.

37
Q

What happened in the case of Thurlow v Thurlow?

A

Wife had severe physical and neurological illness, behaviour caused distressed to H and petition was granted.

38
Q

What behaviour was accepted in Livingstone-Stallard v Livingstone-Stallard?

A

Constant criticisms and rudeness by H to W was enough

39
Q

What behaviour was not accepted in Pheasant v Pheasant?

A

Mere lack of affection

40
Q

What behaviour was not accepted in Buffery v Buffery [1988]

A

Having nothing in common when the children left home

41
Q

What fact is contained within s1(2)(c) MCA?

A

Desertion

42
Q

What must a petitioner prove to prove desertion?

A

Not lived in the same household for 2 years
No good cause for them living apart
R intended to remain apart for that period

43
Q

Are there exceptions where they could live in the same household?

A

Yes, as test was established in Le Brocq v Le Brocq

44
Q

What is the test established in Le Brocq v Le Brocq?

A

Are they living in 2 households or as one

45
Q

What were the case facts in Le Brocq v Le Brocq?

A

H and W no longer shared a bedroom, she cooked for both and he paid her money. He didn’t eat with W and daughter - no other communication between the two. There was no desertion as they were still seen as one household.

46
Q

What were the case facts in Quoraishi v Quoraishi?

A

Couple were muslim, he went to Bangladesh and took a second wife. First wife left however it was not desertion as she had a good reason for leaving. She had a case under behaviour.

47
Q

What is requisite intent?

A

The couple must separate and intend to stay separated.

48
Q

What fact is contained within s1(2)(d) of MCA 1973?

A

Living apart for 2 years with consent

49
Q

What is defined as living apart?

A

In both mental and physical state. Can live in the same house as long as they are living as two households.

50
Q

What is the case of Fuller v Fuller?

A

Couple separated and she lived with another man. He became ill and moved in with his W and her new partner. She cooked, cleaned and washed for him. He paid rent and had his own bedroom. CA held they are not living as H and W so decree was granted

51
Q

What happened in the case of Hollens v Hollens?

A

H and W continued to live together following violent argument but did not eat, sleep or talk to each other

52
Q

What happened in the case of Mouncer v Mouncer?

A

H and W shared meals and living accommodation but not bedroom or bed. Petition dismissed.

53
Q

What case introduced not mentally living together?

A

Santos v Santos [1972]

54
Q

What happened in the case of Santos v Santos?

A

H lived in Spain and W in England. They occasionally visited each other. They were not completely over it must be obvious to both parties without them having to say anything.

55
Q

How must consent me given?

A

Freely and can be withdrawn up to decree nisi.

56
Q

How is consent usually proven?

A

Usually by signing acknowledgement of service of divorce petition.

57
Q

What is contained within s5 MCA?

A

Defence to divorce

58
Q

When is s5 MCA relevant?

A

When there has been 5 years and no consent used
Can only be used where divorce would result in grave financial or other hardship to the respondent and it would be wrong under all circumstances to dissolve the marriage.

59
Q

What is the case of Parker v Parker?

A

W would lose pension until H could make financial provision for W

60
Q

What happened in the case of K v K (Financial Provision)?

A

Petition delayed until H could make a financial provision for W

61
Q

What happened in the case of Rukat v Rukat?

A

Wife’s claim that she would be unable to live in her native Sicily after divorce due to stigma was dismissed.

62
Q

What is contained in s10 MCA?

A

Decree may be postponed

63
Q

When will a decree be postponed?

A

In exceptional circumstances, usually including children

64
Q

What is judicial separation?

A

Alternative to divorce, however does not end marriage. H and W no longer have to live together or support each other financially. There is no need to show irretrievable breakdown just one of five facts.

Family Law (5 decks)

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