Divorce/Dissolution 2- lecture 1 Flashcards
Terminology for divorce/dissolution?
Terminology
- 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
- Respondent- Other party
- Petition/Application-Doc u need to get divorced
- Divorce Proceedings/Matrimonial Proceedings
respondent -Process getting divorced known as divorced proeeings etc - 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
Setting the landscape?
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
historical figures?
-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
Divorces in England and Wales: 2013 stats- main points?
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
Cohab on rise?
Cohab on rise which creates other probs
comparison btw men and women on divorce?
wife more men get divorced when older and women divorced younger most people divorce 40-44
for a divorce what do you need to provide?
reason= fact
What is the most popular fact?
divorcing someone by behaviour, more women divorces than men, so 2013 65% divorces brought by women
what is the next fact close to popular?
2 years sep with consent 2nd reason-
what about civil partnerships?
no divorce u get dissolved- Number of CP dissolutions increased by 20% to 974 dissolutions in 2013
Why is the divorce rate so high?
Expectations
Financial independence of women
Mortality
Work pressures
what is meant by expectations?
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,
what is meant by financial independence of women?
don’t need to stay in marriage if they don’t want to
what is meant by mortality?
longer you with more likely to get divorce longer u live more likely
what is meant by work pressures?
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
The Family Law Act 1996 (A quick note)?
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
what bit is in force?
bit that is in force is on page 371 on text books
Key things s1?
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
what does the law say about s1?
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
The Ground for Divorce/Dissolution?
there is only 1 ground for divorce and that ground is in s1 mca 1973 -that the marriage has irretrievably broken down
what should you separate from s1 ground for divorce?
s 44(1) CPA 2004 - that the civil partnership has irretrievably broken down - for civil not marriage
what is the 1 thing you should prove overall?
irretrievably- How you prove – prove by 1 of five facts
Proving s 1 and s 44 by these 5 facts?
- 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
what do the 5 rules have?
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
what are the 1st three compared to last 2?
-1st 3 are thought based other 2 non though
s 1(4) – failure to prove a ground?
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
s 1(2)(a) ?
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.”
who has to claim adultery?
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,
what does adultery not apply to?
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
Points to note about claiming adultery?
An applicant/petitioner cannot rely on their own adultery
what 2 grounds must u prove for adultery?
1) that the respondent committed adultery
2) that the applicant finds it intolerable to live with the respondent
what does s 2(1) MCA 1973 allow?
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
what is s 2(1) MCA 1973 same as?
s1 - family law act- reconcil
s 2(5) MCA 1973?
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
Does there have to be a link between the adultery and the intolerability?- s.22
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-
what happened Clearly v Clearly and Hutton [1974]?
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
what do you have to do when talking about adultery?
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
what are the two words you have to provide to prove adultery ?
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
Intolerability: subjective or objective test?
When talking about intolerability get subjective or objective test- even though written subjective it is actually both
case for subj or obj test?
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
