Divorce/dissolution 2 (3) Flashcards
Dissolution of Civil Partnerships?
Dissolution of Civil Partnerships
- s 44(1)
- matches the ground for marriage breakdown-needs to be irrite broken down- matches ground of divorce, there is only 1 ground
- s 44(5)
- 4 Facts (not five)-gives u facts but marriage u have 5 civil part 4 – there is no adultery ground – behaviour, desertion, separation, consent but not adultery
- s 41
- time bar-timeU cannot get divorced unless uve been married for a year, cannot obtain a civil part diss unles you’ve been in civil partnership for a year = 1 year bar
- s 45
- attempts at reconciliation permitted –s45 deal with attemtps read as written, follows mca so s1 family act promots recon without being penalised, same as civil part, essentially its that 6 month rule
- s 47 & s 48
- equivalent to s.5 and s.10 MCA 1973 (see later)-S47 48- equiv – s5 and 10 end of powerpoint at and its all about bars of divorce
- s 56
- separation order
- S56 if you don’t want to dissolve civil p u can get separation order- so for those opposing dissolution u can get civil part
-1st need to find them in statute- 2nd remember they are identical to divorce apart from theres only 4 facts instead of 5
how is the civil similar to divorce ending?
It is a 2 stage process as it is in divorce – 1 – conditional order equiv to degree insight 2 – final order equiv to degree absolute- just same as divorce until u get final order u are still in a civil partnership – in civil partnership act not matrimonial causes
Judicial Separation?
- s 17 MCA 1973-This is to do with married people
- judicial sep are for those who do not wish to be divorced, but want some recognition that there relationship has broken down, quite often ull see in
EXAM Q – one party wants to get divorced other doesn’t want to for religious reasons – person usually roman catholic= judicial sep= asking u to talk about judic sp
Judicial sep key points?
- For those with a religious objection to divorce
- Acknowledgement that the parties have separated
- Does not bring the marriage to an end
- Allows for the making of financial orders
- Parties must prove one of the 5 Facts
what do you have to prove in jud sep?
U have to prove 1 of the 5 facts but don’t need to prove marriage broke down- This comes up in exams quite a lot BREAK DOWN IN RELATIONSHPS QUITE FREQUENT IN FAMILY LAW!!
Bars to Divorce?- whether or not u can prevent a divorce?
Decree Nisi and then 6 wks later Decree Absolute- when divorced - u would make these s.5 and 10 (make after decree nisi)
what about s 3(1) MCA 1973?
s 3(1) MCA 1973 - one year bar for marriages
extra 1 year bar?
cannot get divorced unles married for a year but u can use evidence gained in the 1 st year
So u been married 6 months husband and wife has affair, have to wait 6 months before draw up petition, but u can use base divorce on adultery that happened 6 months into marriage
So if u get married adultery 6 months pertiion based on adultery – obviously weve just said civil part u have to wait a year, annulemtn u don’t have to wait a year , there is no time bar on annulment –
reasoning behind 1 yr bar this marriage forces u to stay for ayear and sort things out –
s 5 MCA 1973 – Fact (e)?
2 things that need to be satisfied-
1 grave financial or other hardship to the respondent
2 wrong in all the circumstances to dissolve the marriage
- hardship must stem from granting of divorce
there are 2 things that need to be satisfied-
1st 1 repsonsent don’t want degree absolute based on grave/financial or other harship etc and 2nd wrong in all thas that reason- this is reallt difficult to prove and not used very much.
where it is used as a tactic to put pressure on petitioner, so petitioner obvs want divorce, respondent replies on them grounds to not dissolve m on basis suffer grave financial harship and it would be wrong ..
so if ur on a petitioner and responsdent have petiotner who wasn’t furnishing their financial docs u could use this
what is used as a tactic for financial orders?
When u get divorced if u have business assets have to had value, if ur employed-people know where income from u have to give whole yearof financial statements, and its to sotp people scrimming away money,
so although not use by courts it is used by respondent as a tactic to force petitioner to settle financial orders, the reason not used very much is bc court can order financial orders which means there isn’t grave financial hardship, so its very rare to have grave financial hardship due to the courts extensive powers of property distribution and our topic of financial orders …
what should the harship stem from?
Other difficulty os tjay the hardship must stem from granting of sivorce not consequences of divorce –other hardship includes things like if ur ostricting ur community bc ur divorced includes social and cultural exclusion, so if ur gonna suffer grave finaical hardship courts solve it but if other harhsip excluded from ur community might be bit bold
cases for this?
- K v K (financial provision) [1996]
adjourning petition until husband made necessary financial arrangements-in this case very difficult, for that finaical hardship so used it as tactic
-Archer v Archer [1999]
Not grave hardship to lose out on pension rights when the wife had her own financial assets.-he was a surgeon not much money but had very large pension , divorce she would lose out on pension but not hardship aespeicall as she had her own money , fact e not used very much often be consented y finaical orders but may be used in other finanacial matters??
- s 10(2)-(4) MCA 1973 – Fact (c) and (e) ?
in essence the petitioner applies for
– consideration of financial position after divorce-court considers and only grant divorced if reasonable down below
- ‘reasonable and fair’ financial arrangements-
In essence this delays degree absolute until financial orders sorteed
what do you have to appreciate?
Have to appreaciate once u have degree absolute it is then diff for people to do anything.
if someome wants to get divorce that what u can hold over them, so what trying to do ud never ever get divorced unless finaical settlement sorted otherwise u d have nothing to bargain with so if ur being divorced, u need to leave urself with something so this is how u can delay
A few points about ‘procedure’?
Procedure- u don’t need to know a lot but enough exam q on authority
If a divorce is undefended there is no hearing
- Undefended divorces are dealt with by a ‘special procedure’
- If a divorce is undefended, the parties do not have to submit proof of Facts
