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Family Law > Divorce > Flashcards

Divorce Flashcards

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1
Q

What is the background for divorce?

A

used to be scandalous but its now a part of life

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2
Q

what law helped establish divorce?

A

Matrimonial causes act 1973

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3
Q

Was there many divorces prior to the MCA 1973

A

No

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4
Q

Figures for divorce in the last decade?

A

120,000-160,000

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5
Q

is there pressure for fault based divorce?

A

Yes

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6
Q

What legislation did the MCA 1973 consolidate?

A

divorce reform act 1969 and matrimonial proceedings and property act 1970

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7
Q

What did the MCA 1973 allow?

A

Finance, divorce and annulment law

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8
Q

Can a divorce petition be defended?

A

Yes

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9
Q

What is the percentage of divorce contested?

A

3%

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10
Q

What happens if a divorce is contested?

A

full hearing, expensive process

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11
Q

What does the decree nisi allow?

A

finances to be sorted

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12
Q

what does the decree absolute allow?

A

finalisation of divorce

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13
Q

after how long can the petitioner apply for decree absolute?

A

6 weeks

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14
Q

Can the decree nisi be recinded?

A

Yes

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15
Q

Kim v morris 2012- decree nisi recinded?

A

degree nisi granted, got back together and lived together for 4 years. applied for absolute which was refused

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16
Q

What is the sole ground for divorce and section?

A

irretrievable breakdown s1(1) MCA

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17
Q

what does the sole ground have to be evidenced by\?

A

5 facts s1(2) MCA

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18
Q

string fellow v string fellow 1976

A

husband left wife and family, she petitioned after 3 months, couldn’t get decree, had to wait 2 years for desertion, could only show irretrievable breakdown

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19
Q

is one of the five facts enough on its own?

A

no

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20
Q

Biggs v Biggs

A

wife got nisi, husband committed adultery, when out of prison lived with her so no absolute due to the period of living together.

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21
Q

Fact 1- Adultery (information)

A

s1(2)(a), cannot rely on own adultery

22
Q

what must you have in addition to adultery

A

intolerability, but don’t have to be linked

23
Q

is intolerability subjective or objective?

A

subjective- goodrich v goodrich

24
Q

on who is the burden of proof to show?

A

petitioner to prove if its disputed

25
Q

what happens if they continue to cohabit after?- fact 1

A

period of less than 6 months won’t be counted

26
Q

Fact 2- unreasonable behaviour

A

s1(2)(b)

27
Q

what is the test for unreasonable behaviour?

A

objective test- what would any right thinking person

28
Q

what case does the test for unreasonable behaviour come from

A

livingstone-stallard v livingstone stallard

29
Q

what conduct are included in unreasonable behaviour?

A

physical violence, collection of trivial acts, association falling short of adultery, negative behaviour, constant criticism etc.

30
Q

effects of continued cohabitation for unreasonable behaviour?

A

periods less than 6 months will not count, after 6 months its the courts discretion

31
Q

Fact 3- desertion

A

s1(2)(c). for 2 years

32
Q

is the petitions for desertion high?

A

no there are few petitions

33
Q

can you live int he same household and apply for desertion?

A

as long as you live as 2 separate households

34
Q

le brocq- desertion

A

didn’t share bedroom but continued to cook. no communication, held no desertion

35
Q

effects of continued cohabitation for desertion

A

under 6 months will not prevent the petition, however the periods will not count towards the 2 year total of desertion

36
Q

Fact 4- 2 years separation plus consent

A

s1(2)(d), most common if they agree to divorce, no fault needed, living apart in both mental and physical element

37
Q

what falls under the physical separation (fact 4)

A

may stay in same premises if all common life has cased

38
Q

case for physical separation (fact 4)

A

fuller v fuller

39
Q

what falls under mental separation (fact 4)

A

one must consider the marriage to have ended, don’t have to communicate it to the other one

40
Q

the case that introduced mental separation

A

santos v santos

41
Q

effects of continued cohabitation- fact 4

A

up to 6 months will not break continuity, will not count towards the 2 years

42
Q

Fact 5- 5 years apart without consent

A

s1(2)(e), similar requirements to 2 years separation with consent

43
Q

Is there a defence for 5 years apart without consent

A

Yes under s5

44
Q

what is the defence under s5

A

if divorce would result in financial hardship and it would be wrong in all the circumstances to dissolve the marriage

45
Q

case for defence under s5

A

k v k- petition delayed to make financial arrangements for the wife

46
Q

for which facts can you postpone the decree absolute

A

seperation for 2 years with consent or 5 years without consent

47
Q

what section does postponement of decree absolute come under?

A

s10 MCA 1973

48
Q

where is the dissolution of civil partnership contained?

A

s44-48 CPA 2004

49
Q

can you petition on adultery for civil partnerships?

A

no - dennis v dennis

50
Q

where is separation orders for civil partnerships?

A

s56-57 CPA 2004

Family Law (7 decks)

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