Divorce

Question 1

Act?

Answer 1

Divorce (S) Act 1976

Question 2

2 ground for divorce:

Answer 2

Irretrievable breakdown

• adultery
• behaviour
• non Cohab 1 year with consent
• 2 years without consent

Issuing of an interim gender recognition certificate

Question 3

M
V
McLennan

Answer 3

Clarified what is meant as intercourse

Artificial inseminination does constitute adultery even when husband does not consent.

Must be 2 parties physically present engaging in physical sexual activity

Oral/anal doesn’t count but would constitute unreasonable behaviour

Question 4

Dennis
V
Dennis

Answer 4

Petitioned for divorce on grounds of cruelty and desertion

Wife defended; man visited flat a few times tried to have sex but unable to take place

No penetration no adultery

Question 5

Bennet Clark
V
Bennet Clark

Answer 5

Proof of adultery - balance of probabilities

Defender and woman frequently met up
P claimed affair
Held: no proof of sex, only friendship

Question 6

Clark
V
Clark

Answer 6

Proof of adultery

P tried to argue that baby born 6 months after they married couldn’t be his
No evidence she had affair

Held: short gestation period did not rebut presumption that ‘the father is he to who the marriage points’

Question 7

Currie
V
Currie

Answer 7

Proof of adultery

P argued baby born 11m after he went over seas couldn’t be his
Pregnancy that long improbable

Held: whilst not medically impossible, long gestation period plus lies in court rebutted the presumption that the father is he to whom the marriage points

Question 8

2 main defences to adultery

Answer 8

Lenocinium (encouragement)

Condonation

Question 9

Gallagher
V
Gallagher

Answer 9

Lenocinim

Husband sent letter to wife encourage her to do something so he could divorce her
Few months later wife fell in love with someone else.
Divorce based on adultery; action failed

Held: adultery did not arise because of wife’s passion but because of letter. Defence applies.

Question 10

Thomson
V
Thomson

Answer 10

Lenocinim

P though D was having affair, would ask for money to meet friends. He would provide. Hired investigator and saw was correct

Held: lenocinim failed as since she believed she had kept secret, he could not have been actively encouraging her.

Question 11

Condonation

Answer 11

D’s adultery will not be a ground for divorce if it has been confined by P’s cohabitation with d in the knowledge or belief that D has committed adultery. 3 month period.

3 month period starts to run from time of knowledge of adultery, and continues to run as soon as cohab is continued or resumed

Question 12

Lang
V
Lang

Answer 12

Behaviour as ground for divorce

Must take place after date of marriage

Question 13

Grant
V
Grant

Answer 13

Behaviour vs condition

Married happy first 5 years then neglected personal hygiene, urinated over house, underlying mental condition

Held: even though difficult to live with, not sig enough to peril other spouse to the extent which makes them impossible to live with. High bar.

Question 14

Thurlow
V
Thurlow

Answer 14

Behaviour: passive behaviour

Wife’s epilepsy deteriorated making her aggressive, cause damage to house

Held: passive behaviour can be sufficient

Idle, useless, irresponsible also when spouse behaves in cold, indifferent way to other

Question 15

O’Neill
V
O’Neill

Answer 15

Behaviour: does not need to be directed at other spouse

DIY enthusiast, obsessive, removed toilet for 8 months
Hard for wife and child to live with

Held: even though not directed at spouse or badly intended, level of obsession was intolerable and impossible to live with

Question 16

Mason
V
Mason

Answer 16

Behaviour: sexual behaviour

Wife’s refusal to have sex more than once a week was not grounds for divorce

Question 17

Findlay
V
Findlay

Answer 17

Behaviour: causal link

Drunken and abusive behaviour.
Divorce granted even though by time of action P had entered into relationship with another man

Held: must be causal link between behaviour and action. If wasn’t for behaviour unlikely she would have entered another relationship.

Question 18

Bradley
V
Bradley

Answer 18

Behaviour

Generally harder to get divorce if cohab is continued or resumed

Women had 6 children and in fear of husband so couldn’t leave

Held: not barred from divorce

Highlight sympathetic approach taken by courts

Question 19

S2(4) of 1976 Act

Answer 19

Resumptions if less than 6 months do not break the non-cohab period, but do not count

Eg if resume for 3 months, must add on 3 months at the end

Question 20

Ross
V
Ross

Answer 20

Objected to her having friends
Controlling

Behaviour she produced did not satisfy standard under 2(b(