Divorce Flashcards
What is the background for divorce?
used to be scandalous but its now a part of life
what law helped establish divorce?
Matrimonial causes act 1973
Was there many divorces prior to the MCA 1973
No
Figures for divorce in the last decade?
120,000-160,000
is there pressure for fault based divorce?
Yes
What legislation did the MCA 1973 consolidate?
divorce reform act 1969 and matrimonial proceedings and property act 1970
What did the MCA 1973 allow?
Finance, divorce and annulment law
Can a divorce petition be defended?
Yes
What is the percentage of divorce contested?
3%
What happens if a divorce is contested?
full hearing, expensive process
What does the decree nisi allow?
finances to be sorted
what does the decree absolute allow?
finalisation of divorce
after how long can the petitioner apply for decree absolute?
6 weeks
Can the decree nisi be recinded?
Yes
Kim v morris 2012- decree nisi recinded?
degree nisi granted, got back together and lived together for 4 years. applied for absolute which was refused
What is the sole ground for divorce and section?
irretrievable breakdown s1(1) MCA
what does the sole ground have to be evidenced by\?
5 facts s1(2) MCA
string fellow v string fellow 1976
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
is one of the five facts enough on its own?
no
Biggs v Biggs
wife got nisi, husband committed adultery, when out of prison lived with her so no absolute due to the period of living together.
Fact 1- Adultery (information)
s1(2)(a), cannot rely on own adultery
what must you have in addition to adultery
intolerability, but don’t have to be linked
is intolerability subjective or objective?
subjective- goodrich v goodrich
on who is the burden of proof to show?
petitioner to prove if its disputed
what happens if they continue to cohabit after?- fact 1
period of less than 6 months won’t be counted
Fact 2- unreasonable behaviour
s1(2)(b)
what is the test for unreasonable behaviour?
objective test- what would any right thinking person
what case does the test for unreasonable behaviour come from
livingstone-stallard v livingstone stallard
what conduct are included in unreasonable behaviour?
physical violence, collection of trivial acts, association falling short of adultery, negative behaviour, constant criticism etc.
effects of continued cohabitation for unreasonable behaviour?
periods less than 6 months will not count, after 6 months its the courts discretion
Fact 3- desertion
s1(2)(c). for 2 years
is the petitions for desertion high?
no there are few petitions
can you live int he same household and apply for desertion?
as long as you live as 2 separate households
le brocq- desertion
didn’t share bedroom but continued to cook. no communication, held no desertion
effects of continued cohabitation for desertion
under 6 months will not prevent the petition, however the periods will not count towards the 2 year total of desertion
Fact 4- 2 years separation plus consent
s1(2)(d), most common if they agree to divorce, no fault needed, living apart in both mental and physical element
what falls under the physical separation (fact 4)
may stay in same premises if all common life has cased
case for physical separation (fact 4)
fuller v fuller
what falls under mental separation (fact 4)
one must consider the marriage to have ended, don’t have to communicate it to the other one
the case that introduced mental separation
santos v santos
effects of continued cohabitation- fact 4
up to 6 months will not break continuity, will not count towards the 2 years
Fact 5- 5 years apart without consent
s1(2)(e), similar requirements to 2 years separation with consent
Is there a defence for 5 years apart without consent
Yes under s5
what is the defence under s5
if divorce would result in financial hardship and it would be wrong in all the circumstances to dissolve the marriage
case for defence under s5
k v k- petition delayed to make financial arrangements for the wife
for which facts can you postpone the decree absolute
seperation for 2 years with consent or 5 years without consent
what section does postponement of decree absolute come under?
s10 MCA 1973
where is the dissolution of civil partnership contained?
s44-48 CPA 2004
can you petition on adultery for civil partnerships?
no - dennis v dennis
where is separation orders for civil partnerships?
s56-57 CPA 2004
