Divorce Flashcards
Act?
Divorce (S) Act 1976
2 ground for divorce:
Irretrievable breakdown
- adultery
- behaviour
- non Cohab 1 year with consent
- 2 years without consent
Issuing of an interim gender recognition certificate
M
V
McLennan
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
Dennis
V
Dennis
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
Bennet Clark
V
Bennet Clark
Proof of adultery - balance of probabilities
Defender and woman frequently met up
P claimed affair
Held: no proof of sex, only friendship
Clark
V
Clark
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’
Currie
V
Currie
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
2 main defences to adultery
Lenocinium (encouragement)
Condonation
Gallagher
V
Gallagher
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.
Thomson
V
Thomson
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.
Condonation
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
Lang
V
Lang
Behaviour as ground for divorce
Must take place after date of marriage
Grant
V
Grant
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.
Thurlow
V
Thurlow
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
O’Neill
V
O’Neill
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
Mason
V
Mason
Behaviour: sexual behaviour
Wife’s refusal to have sex more than once a week was not grounds for divorce
Findlay
V
Findlay
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.
Bradley
V
Bradley
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
S2(4) of 1976 Act
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
Ross
V
Ross
Objected to her having friends
Controlling
Behaviour she produced did not satisfy standard under 2(b(
