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