Divorce/Dissolution 2- lecture 1

Question 1

Terminology for divorce/dissolution?

Answer 1

Terminology

1. Petitioner/Applicant- need to know is person who starts divorvce known as 1-SO IF U WANT TO DIVORCE HUSBAND/WIFE U ARE PETITIONOR/APPLICANT
2. Respondent- Other party
3. Petition/Application-Doc u need to get divorced
4. Divorce Proceedings/Matrimonial Proceedings
   respondent -Process getting divorced known as divorced proeeings etc
5. A two-stage process -an degree nisi enightst-interim doc and after 6 week delay can apply for and adegree absolute in that order
   * Role of the Family Procedure Rules 2010

Question 2

Setting the landscape?

Answer 2

Generally the amlunt of divorces has remained steady and has been slight decline in recent years but decline has reflected in les people getting married , theres no doubt that more people get divorced

Question 3

historical figures?

Answer 3

-1961 and 1991, in 1970 4.7 and 1999 13.7 divorces
- Divorces per 1000 marriages in 1970 and 1999
-Average length of marriage is about 7yrs normally 1st marriage is the longest
Need to be 10 yrs marriage to be deemed of length if u want to get married and want to benefit financially need that, length marriage important for financial aspect

Question 4

Divorces in England and Wales: 2013 stats- main points?

Answer 4

Main points

-114,720 divorces in England and Wales in 2013, a decrease of 2.9% since 2012, when there were 118,140 divorces

In 2013, there were 9.8 men divorcing per thousand married males and 9.8 women divorcing per thousand married females. A decrease of 27% for men and 26% for women compared with 2003.

The number of divorces in 2013 was highest among men and women aged 40 to 44

For those married in 1968, 20% of marriages had ended in divorce by the 15th wedding anniversary whereas for those married in 1998, almost a third of marriages (32%) had ended by this time

Question 5

Cohab on rise?

Answer 5

Cohab on rise which creates other probs

Question 6

comparison btw men and women on divorce?

Answer 6

wife more men get divorced when older and women divorced younger most people divorce 40-44

Question 7

for a divorce what do you need to provide?

Answer 7

reason= fact

Question 8

What is the most popular fact?

Answer 8

divorcing someone by behaviour, more women divorces than men, so 2013 65% divorces brought by women

Question 9

what is the next fact close to popular?

Answer 9

2 years sep with consent 2nd reason-

Question 10

what about civil partnerships?

Answer 10

no divorce u get dissolved- Number of CP dissolutions increased by 20% to 974 dissolutions in 2013

Question 11

Why is the divorce rate so high?

Answer 11

Expectations

Financial independence of women

Mortality

Work pressures

Question 12

what is meant by expectations?

Answer 12

People expect a lot from marriage doesn’t often deliver, theory marriage – marriage to get something out of it when this fails they may not, if not for religious reasons most get married phase in life,

Question 13

what is meant by financial independence of women?

Answer 13

don’t need to stay in marriage if they don’t want to

Question 14

what is meant by mortality?

Answer 14

longer you with more likely to get divorce longer u live more likely

Question 15

what is meant by work pressures?

Answer 15

Too much pressures in society e.g work small children etc family unit etc
There a re lots o other trend, people married but don’t live together

Question 16

The Family Law Act 1996 (A quick note)?

Answer 16

Law of divorce not ideal-attempt at reforming the law, the family law act most of it isn’t in force in particular reference to s1- but was not implemented but gov said they support s1

Question 17

what bit is in force?

Answer 17

bit that is in force is on page 371 on text books

Question 18

Key things s1?

Answer 18

1st- crts support institution of marriage is to be supported, runs throughout divorce law ,
2nd – parties marriage encouraged to take pract steps to revive marriage-
3 -reconcilliation is priority - if broken down= should be with minimal distress,
4- any risk to parties- should be lack of violence towards parties and children

Question 19

what does the law say about s1?

Answer 19

we support issue of marriage if think divorce we will help u reconcile if u do make it easy as possible with lack of violence etc , gov supports this

Question 20

The Ground for Divorce/Dissolution?

Answer 20

there is only 1 ground for divorce and that ground is in s1 mca 1973 -that the marriage has irretrievably broken down

Question 21

what should you separate from s1 ground for divorce?

Answer 21

s 44(1) CPA 2004
	-	that the civil partnership has irretrievably broken 	down - for civil not marriage

Question 22

what is the 1 thing you should prove overall?

Answer 22

irretrievably- How you prove – prove by 1 of five facts

Question 23

Proving s 1 and s 44 by these 5 facts?

Answer 23

• adultery
• unreasonable behaviour
• desertion
• two years’ separation (with consent)
• five years’ separation

so u prove ground by establishing 1 of the 5 facts , so in exam q could give 2 or 3 of these two discuss

Question 24

what do the 5 rules have?

Answer 24

have certain rules attached to them- you can only divorce if court is satsifes that marriage irrteviably broken down and cirucmstances fall into 1 of these 5 things

Question 25

what are the 1st three compared to last 2?

Answer 25

-1st 3 are thought based other 2 non though

Question 26

s 1(4) – failure to prove a ground?

Answer 26

If failure cant get divorced very rare but did happen in case - Buffery v Buffery [1988]-Couple had nothing in common and they no longer communicated with each other.
=marriage has broken down but didn’t have 5 facts u need BOTH

Question 27

s 1(2)(a) ?

Answer 27

Dennis v Dennis [1995] - def of adultery“… adultery may be defined as consensual sexual intercourse between a married person and a person of the opposite sex during the subsistence of the marriage.”

Question 28

who has to claim adultery?

Answer 28

doesn’t matter where other person married or not 1 of u needs to be married
So if ur claiming adultery your claiming that respon has committed it,

Question 29

what does adultery not apply to?

Answer 29

s 44(5) CPA 2004
	-	does not apply to civil partnerships

s 1(2)(b) Marriage (same sex couples) Act 2013

- does not apply to same-sex relationships - cause no same sex

Question 30

Points to note about claiming adultery?

Answer 30

An applicant/petitioner cannot rely on their own adultery

Question 31

what 2 grounds must u prove for adultery?

Answer 31

1) that the respondent committed adultery

2) that the applicant finds it intolerable to live with the respondent

Question 32

what does s 2(1) MCA 1973 allow?

Answer 32

Forgiveness- allows u to reconcile so if u feel like forgiving adultery of other party etc and can live, as long as it doesn’t add up to more than 6 months-

supports attempts at reconcllation by allowing couples to live together for a period not exceeding 6 months

Question 33

what is s 2(1) MCA 1973 same as?

Answer 33

s1 - family law act- reconcil

Question 34

s 2(5) MCA 1973?

Answer 34

One or more periods totalling up to six months- talk about later,

other section is s22- parties live after known adult where s 2 1 dont apply for divorce- can still rely on adultey even if lived after time should be disregarded in determing whether intol to live with them. If more than 6 months cant rely on adult- so allows recon

so esentially if p committd adult but decide to live with them can still rely

Question 35

Does there have to be a link between the adultery and the intolerability?- s.22

Answer 35

not necessarily- doesn’t say it does and illustrated in this case -Clearly v Clearly and Hutton [1974]-– supports fact doesn’t have to be a link-

Question 36

what happened Clearly v Clearly and Hutton [1974]?

Answer 36

Husband claimed that the wife had committed adultery and he found it intolerable to live with her because there was ‘no future in the marriage’- supports fact = no link

Question 37

what do you have to do when talking about adultery?

Answer 37

have to prove adultery – if u are respondent accused of adult other party don’t have to be named – all that happens wife or husband say adult reason and u sent form agree or not if so you do agree can tick box , most time solicitor encourage not to name the other

Question 38

what are the two words you have to provide to prove adultery ?

Answer 38

have to prove inclination and opportunity e.g husband wife stayed in hotel and room shared with another person= opp to commit adul –

or person not having sex with you= inclination-

incline sex with someone else +opp

Question 39

Intolerability: subjective or objective test?

Answer 39

When talking about intolerability get subjective or objective test- even though written subjective it is actually both

Question 40

case for subj or obj test?

Answer 40

Goodrich v Goodrich [1971]

• subjective test
• Did this applicant find it intolerable to live with this respondent?

ct- obj decide whether or not this appl finds in intolerable to live with this respondent which is the subjective bit,

you can defend your divorce if you wish most people don’t