Divorce/Dissolution 2- lecture 2 Flashcards
Fact B - Behaviour?
even though adultery could be obvious in exam as fact a, should talk about behaviour as another fact b
what does s.1(2)(b) MCA 1973 say about behaviour?
most common fact
what does s.1(2)(b) MCA 1973 involve?
- violence, verbal abuse, unreasonable demands, sexual unfaithfulness falling short of adultery (Dennis v Dennis [1955]), domestic violence etc.
- Drukeness drunk addiction and if youre living with someone addiction to some sort e.g alchoholic and this to list
what should you base your claim on?
Base your claim on either one of these e.g
- violent incident 1 aspect - 1 major b e.g if end up in hosp could be enough
- or u could write petition a variety- lots of minor incident normally 4 or 5 things in petition of behaviour traits
what can you not rely on?
you cannot rely on your own behaviour
Has to be r’s behaviour
what does the subj test have?
The test is subjective test which has objective element,intolerability- looking for that the petioner or appl finds it intolerabl, cannot bear to live with that person
what case do you need to know for exam?
Livingstone-Stallard v Livingstone-Stallard [1974]-subjective test intolerability
what does livingstone make you think about?
The test is not – is the behaviour unreasonable … ur looking at the impact of the behaviour on the applicant and q is, is it reasonable given the parties personalities for the applicant to live with responsdent,- students tend to talk is behaviour unreasonable but don’t say that behaviour might be ok for someone else but what is the impact on the applicant
How is the conduct of behaviour looked at?
The conduct is looked at objectively, but the effect is subjective (i.e., how it affects this petitioner)
- ct has to obj decide subjective bit,
case for looking at it obje?
Birch v Birch [1992]
-the behaviour of the respondent affected the petitioner more due to her sensitive nature.
more sensitive able to prove that behaviour unreasonable because of her nature – able to get divorce on those grounds
difficulty in this?
most maririage break down cos couples drift apart not an incident, just small sequnces for drifiting apart but its not enough e.g
- difting apart-= not enough buffery v buffery- never took her out - e.g q dont go out enough- cant get d
-omission to act – generally (absence not generally behaviour) – so exam q that says wife /husband dotn speak to other parties= not enough –*
Pheasant v Pheasant [1972]
- a wife’s lack of affection could not constitute unreasonable behaviour
what are you looking for in exam for behaviour?
what ur looking for is some sort of breach OF MARITAL OBLIGATION- and that’s essentially what ur looking for when talking about b
what is a marital obligaiton?
not very affectionate, take partner out, = no
not abusive, support partner financially =yes
what is fact b all about?
All about the positive things u do that affect partner, this absence doesn’t stand for all grounds but it stands for behaviour , mental/- ommision would stand up but if not have mental physical prob need positive behaviour
what is another example of behaviour?
Controlling behaviour-Often fav for behaviour-
case for controlling behaviour?
Livingstone-Stallard (as before)
-divorce granted for critical, rude, domineering and abusive actions of the husband
what does the respondent not always have to do?
The respondent does not have to be at fault (contrast Pheasant earlier on omission to act) – cases of illness
what can you have if ill?
can have an omission to act
cases of illness?
Katz v Katz [1972]
- depression a sufficient reason - wifes depression, husband =divorce
- Richards v Richards [1972]
- moodiness/minor assaults not enough-husband just stated into space & minor ass- held not enough 4 divorce moody and absent no enough
Thurlow v Thurlow [1976]
- hospitalised bedridden wife– wife become bear ridden and husband was allowed to use fact b for behaviour -someone-thurlow case shifted law to think about behaviour as positive act
case of illness= no blame element
drunk at time, drugs or spending money ppl have= blaming but illness blame is away but look at impacy of illness on applicant
what does the law tell us on this part?
law tells us if u have recognised medical condition that’s enough, law less certain things like moodiness still good law but given how laws changed societys changed it prob wouldn’t stand up anymore,
what does it mean by certain sit respondent does not always have to be at fault ?
Tells us in certain sit respondent does not always have to be at fault , reason for this it looks at what parties can tolerate(law) remember not focused on b ur focused on b and affect on u , is it something you can cope with or cant cpe with, would u be better off being fivorce, impact and strength this is justification behind allowing mental illness being a reason to dviorce someone
case for the court will take into account all the circumstances?
O’Neill v O’Neill [1975]- husband undertook extensive repairs to the house, even removing the toilet door for 8 months-ct said given circumstances personalirtyies wife coudlnt liv with husband doing diy project
what about behaviour?
behaviour it just doesn’t fall under any category- exam q-alot of it would be about what u thinks reasonable especially in family orders
- s.2(3) MCA 1973?
essentially says gives chance of reconcill- s1 fam law act and no penalty if period of cohab is 6 months or less, so u can have block of 6 month or individ blocks
need to note from final inci?
probably wont be a final incident, so s.2 3 -time of cohab runs from final incident- in behaviour cos ongoing b won’t be a final incident
- in exam look for is there a final incid- i.e has someone moved out,
- if its an ongoing incident abusive b- or someone spending money= ongoing
-in partic fact b if more than 6 months, it is not an automatic bar as it is in other sections but court can take it into account
what is fact c?
Fact C - Desertion-desertion means leaving home so uve been desertrted but it can also be where youre still in same household, you can desert if u live udner same roof too,
how can you be deserted under same roof?
u ave to completely withdraw frm shared life , so u cannot operate as 1 household and you must have completely separate lives, if theres any sharing e.g meals or pub together zanything together is not desertion
what act is desertion under?
s.1(2)(c) MCA 1973
2 year continuous period
Rarely used
1st element?
- fact of separation-
- Can occur when parties stay living in the same household
Le Brocq v Le Brocq [1964]
-husband and wife had separate bedrooms, they did not talk but the wife cooked for the husband and he paid her housekeeping money - not enough and not serperate lives
2nd element?
Intention to desert- mental element
so applicant must know theyre bein deserted ,
so if someone walks out door and no communication and don’t come back for 2 years = deserted
conduct by words bit more difficult but essentially must say to person deserting u if going to do that might aswell rely on fact b and don’t have to wait 2 years
Another e.g of intention to desert?
if its for separation -
so 1 [party lives abroad
or applicant has consented to it in some way,
or they’re in prison
or don’t have mental capacity to consent
= no desertion,
Desertion in exams to raise marks?
extremely unlikely question of desertion but need to undersand it to spot desertion need to say which fact applicable and why other facts aren’t*
what does s.2 5 encourage?
encouraging reconciliation,
so 6 months cohab or living togeth does not negate desertion but quirk is
-the period of living together must be added to the 2 years and that’s diff a to b
c- so if u cohab- break desertion have to add on so if cohab for 5 moths ur fact of sep will be 2 yrs 5 months sep
Fact D - Two Years Separation with Consent?
s.1(2)(d) MCA 1973
Very good because Not atognistic theres no thought, here
Sepeareted 2 years responded consent – closest we have to no fault divorce,
If ther eis consent have to rely on other ground
what qualifies as living apart?
Contrast those living in separate houses with those living in the same house- physical element, u need to be physical sep from other p
*Questions to be asked when the couple are still sharing a house?
- Do the couple eat together?
- Is their any community of life?
- Do they share living spaces?
cases for living apart?
Mouncer v Mouncer [1972]
-sharing of household tasks showed the couple were not separated-when children around acted as family unit ONLY they were on bad terms but ct held because essence of family unit they weren’t living apart , strange about this is goe against s1 trying to make it okay family penalised for truing best looks at what u do not motives for doint it - *law)-In exam if give q about couple who children at school unlikely fall into living apart
Hollens v Hollens (1971)
-husband and wife shared a house but they did not speak, eat or share a room- Hollens – everything sep= living apart
what does S.2(5) and (6) MCA 1973 give?
6 month rule
- in essence u can disregard cohab if no more than 6 months
- That 6 months can either be individual periods adding up to 6 months or 1 6 month period
Quirk s2 5 – look in books- any period that’s u lived together has to be added on so if cohab 3 months then your 2 yr period would be 2yrs 3 months
But has to know it doesn’t break the continuity but it is added on
what is s 2 6 says?
treated as living apart unless living together, eachother in same household.
and its these words that are important.
bc it creates problem with people the problem is couples cannot afford 2 houses
now couples that get divorce will be financial order which enables u to move out of hosue but inorder to get financial order need to get divorce. law helps u.
Living aprt unless living with eachother in same household. now if ur 1 inome family and husband and wife living in same house and no money to find another house law differentials living in same hosue and living in same housrhoeld not the same and that’s how law interprets this section, so unless youre apart unless living together in same household same household = some community of life e.g eat together etc share finances etc all to do
case for Consent (mental element)?
Santos v Santos [1972]
- ‘living apart’ can only start when one party recognises that the marriage is at an end
- Is it necessary to tell the other party? - says ur mentally lving apart when 1 recognises marriage at end- not necc to tell other party u just have to feel or think it , it is an outdated concept and exists from time where divorce from scrutiny dot hae scrutinty now althoughe xisits noones really gonna asku about it (mental el) usually its inferred though conduct another thing about consent is that is must be freely given
Fact E ?
Five Years Separation
- S.1(2)(e) MCA 1973
- No consent needed
how does fact e differ from fact d?
differs from fact d as don’t need consent just need to establish here lived apart for 5 years means u can be divorced against ur wishes ,
- so if u have a defended divorce 1 person don’t want to agree wait 5 yrs then can divorce some1 against wishes, good news is in facts d e it talks about parttis must b lving apart the definition is same for fact d and e and s 2 5 and 6 apply her easwell.
