Divorce Flashcards
Babiarz v Poland [2017]
ECHR decision; divorce as a human right?
FACTS: The Husband and wife were married in 1997. In 2004 the wife underwent fertility treatment in order to conceive but during the same year the husband formed a relationship with a new partner. The husband moved out of the marital home in 2005 and later that year, their child was born.
In 2006 the husband applied for a no fault divorce but the wife refused to agree and asked the court to dismiss the petition. The court refused to grant a divorce and held that the husband had been responsible for the marriage breakdown and that pursuant to domestic law a divorce could not be granted if requested by the party whose fault it was that the marriage had broken down if the other party refused to consent and that refusal was not contrary to the reasonable principles of social coexistence. The appeal was dismissed.
The husband applied to the European Court of Human Rights alleging that his rights under Arts 8 and 12 had been breached by the refusal to grant a divorce and preventing him from marrying his partner.
JUDGEMENT: The court held by 5 votes to 2 that there had been no violation of Art 8 or Art 12.
PRINCIPLE: Member States were afforded a wide margin of appreciation in determining the steps to be taken to ensure compliance with the European Convention and the reconcile the competing personal interests at stake. Neither Art 8 nor Art 12 conferred a right to divorce. Polish law provided detailed substantive and procedural rules which could lead to a divorce being granted. During the divorce proceedings in this case comprehensive evidence was gathered and the husband had an opportunity to present his position to the court and to question witnesses. The decision contained a detailed explanation of the interests that were taken into account, how the evidence was assessed and what the grounds for dismissal were. That decision was also subject to review by the appellate court.
Judicial separation (irretrievable breakdown) grounds
- Adultery
- Unreasonable behaviour
- Desertion for 2 years
- Separation for 2 years
- Separation for five years
Cleary v Cleary [1974]
adultery
FACTS: W committed adultery, H forgave her and took her back. W then left H, subsequent behaviour which H found intolerable not the adultery.
JUDGEMENT: Supported the husband, two factors did not have to be linked
PRINCIPLE: Two part test - Adultery and it is intolerable to live with respondent; adultery can be the reason behind a divorce even if it did not play a significant part in the breakdown of the marriage.
Livingstone-Stallard v Livingstone-Stallard [1974]
unreasonable behaviour
FACTS: H locked W out of the home after 2 months of marriage, lived apart then reconciled. 2 years later split up again. W filed on the basis of H’s behaviour, alleging abuse/criticism through their marriage.
JUDGEMENT: Granted W’s petition.
PRINCIPLE: Whole circumstances had to be taken into account, as well as the characters/personalities involved. Test is partially objective, partially subjective.
Mason v Mason (1980)
unreasonable behaviour
FACTS: After five years’ marriage W refused to have sex with H because she was frightened of becoming pregnant; when H had a vasectomy W agreed to sex about once a week. Three months later H left to live with another woman, and obtained a decree nisi on the grounds that W had behaved unreasonably.
JUDGEMENT: Discharging the decree, Ormrod LJ said it seemed impossible to say that a limit of once a week was unreasonable.
Thurlow v Thurlow [1975]
unreasonable behaviour
FACTS: The husband petitioned for a divorce from his wife. The wife had been epileptic during childhood, and later had developed a severe neurologic disorder. She was very bad-tempered towards her mother-in-law, including throwing objects at her, and also set fire to cushions and towels in the house. She also became a bed-ridden invalid and was unable to ‘perform the role of a wife’ (highlights that passive behaviour can still = behaviour).
JUDGEMENT: The courts decided that behaviour which stems from mental illness which is likely to be involuntary can still count as behaviour that the respondent can’t reasonably be expected to live with, depending on the impact that it has on the petitioner.
Ash v Ash [1972]
unreasonable behaviour
FACTS: The wife alleged that the husband was violent towards her when he was drunk, and he admitted this. However, he claimed that the marriage hadn’t irretrievably broken down.
JUDGEMENT: The court said that the wife personally was the sort of petitioner who couldn’t be expected to live with a violent respondent.
Principle: Bagnall J suggested that violent/alcoholic/adulterous respondents can reasonably be expected to live with their violent/alcoholic/adulterous counterparts. The implication is that if both parties are guilty, divorce is not possible under the behaviour section.
Birch v Birch [1992]
unreasonable behaviour
FACTS: The husband was found by the court to be dogmatic, nationalistic and dictatorial. The trial judge had taken the view that the husband had not behaved so badly that a reasonably person could not live with him.
PRINCIPLE: The COA said that the correct question was “could this wife (who was particularly sensitive and passive) reasonably be expected to live with her husband?” It thought not and granted the divorce petition on the unreasonable behaviour fact.
Le Brocq v Le Brocq [1964]
desertion for 2 years
FACTS: A wife locked her husband out of the bedroom, and didn’t talk to him unless it was essential. However, she did still cook his dinner and he paid her a weekly sum for housekeeping. The husband petitioned for divorce on the basis of his wife’s desertion.
JUDGEMENT/PRINCIPLE: This was not enough. Whilst there was a separation of bedrooms, hearts and speaking, there were still, on the facts, living as one household.
Hopes v Hopes [1949]
desertion for 2 years
LJ Denning said that a husband who “shuts himself up in one or two rooms of his house, and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat”. To satisfy this test: the parties must be living separate lives under one roof and no longer operating as one household but two.
5 components of desertion for 2 years
Five components:
- Actual separation
- Must last for 2 years
- Intention to desert
- No consent from the petitioner to the separation
- No just cause for separation.
Fuller v Fuller [1973]
separation for 2 years
FACTS: A husband and wife were separated. The wife left the matrimonial home and moved in with another man. Four years later, the husband was admitted to hospital with a serious heart condition. When he was released, he wasn’t allowed to live in his own. Instead, he went to live as a lodger with his wife and her new man. The wife did he washing and cooked his meals, and the husband paid for board. The wife then petitioned for divorce on the basis that they had lived apart for 5 years. Initially, the courts said that they were living together as a household.
JUDGEMENT: Held that “living together” meant living together as man and wife. Here, the courts said that the couple were living together as landlady and lodger.
Mouncer v Mouncer [1972]
separation for 2 years
FACTS: Husband and wife slept separately in separate bedrooms and the wife no longer did his washing. However, she did still cook his meals, shared the cleaning, and ate together in the company of the kids. The husband only stayed in the house because of the kids. He wanted to carry on living with them and caring for them. However, eventually he had enough and left the house; after 6 months he applied for divorce.
JUDGEMENT: The court rejected his application, saying that they had only been living apart since the husband had moved out of the house. (Almost seems like a punishment for the couple who is willing to put their kids first.)
Santos v Santos [1972]
Here, the COA held that living apart requires:
- physical separation
- mental separation
Physical separation alone is not enough. It also has to be shown that one party has ceased to recognise the marriage as existing (only one party, and it doesn’t have to be the petitioner). It can be mutual, or it can be unilateral. The court also held that this doesn’t have to be communicated to the spouse i.e. if one party decides that the marriage is over, he or she doesn’t have to communicate this is another spouse.
Archer v Archer [1999]
(Divorce can be barred if it would ‘result in grave financial hardship…and… it would in all the circumstances be wrong to dissolve the marriage’ )
The court held that a rich wife would not suffer GRAVE financial hardship if she was deprived of fairly moderate maintenance from her husband.
