Divorce/Dissolution 2- lecture 2

Question 1

Fact B - Behaviour?

Answer 1

even though adultery could be obvious in exam as fact a, should talk about behaviour as another fact b

Question 2

what does s.1(2)(b) MCA 1973 say about behaviour?

Answer 2

most common fact

Question 3

what does s.1(2)(b) MCA 1973 involve?

Answer 3

• 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

Question 4

what should you base your claim on?

Answer 4

Base your claim on either one of these e.g

1. violent incident 1 aspect - 1 major b e.g if end up in hosp could be enough
2. or u could write petition a variety- lots of minor incident normally 4 or 5 things in petition of behaviour traits

Question 5

what can you not rely on?

Answer 5

you cannot rely on your own behaviour

Has to be r’s behaviour

Question 6

what does the subj test have?

Answer 6

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

Question 7

what case do you need to know for exam?

Answer 7

Livingstone-Stallard v Livingstone-Stallard [1974]-subjective test intolerability

Question 8

what does livingstone make you think about?

Answer 8

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

Question 9

How is the conduct of behaviour looked at?

Answer 9

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,

Question 10

case for looking at it obje?

Answer 10

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

Question 11

difficulty in this?

Answer 11

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

Question 12

what are you looking for in exam for behaviour?

Answer 12

what ur looking for is some sort of breach OF MARITAL OBLIGATION- and that’s essentially what ur looking for when talking about b

Question 13

what is a marital obligaiton?

Answer 13

not very affectionate, take partner out, = no

not abusive, support partner financially =yes

Question 14

what is fact b all about?

Answer 14

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

Question 15

what is another example of behaviour?

Answer 15

Controlling behaviour-Often fav for behaviour-

Question 16

case for controlling behaviour?

Answer 16

Livingstone-Stallard (as before)

-divorce granted for critical, rude, domineering and abusive actions of the husband

Question 17

what does the respondent not always have to do?

Answer 17

The respondent does not have to be at fault (contrast Pheasant earlier on omission to act) – cases of illness

Question 18

what can you have if ill?

Answer 18

can have an omission to act

Question 19

cases of illness?

Answer 19

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

Question 20

what does the law tell us on this part?

Answer 20

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,

Question 21

what does it mean by certain sit respondent does not always have to be at fault ?

Answer 21

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

Question 22

case for the court will take into account all the circumstances?

Answer 22

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

Question 23

what about behaviour?

Answer 23

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

Question 24

• s.2(3) MCA 1973?

Answer 24

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

Question 25

need to note from final inci?

Answer 25

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

Question 26

what is fact c?

Answer 26

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,

Question 27

how can you be deserted under same roof?

Answer 27

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

Question 28

what act is desertion under?

Answer 28

s.1(2)(c) MCA 1973
2 year continuous period
Rarely used

Question 29

1st element?

Answer 29

• 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

Question 30

2nd element?

Answer 30

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

Question 31

Another e.g of intention to desert?

Answer 31

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,

Question 32

Desertion in exams to raise marks?

Answer 32

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*

Question 33

what does s.2 5 encourage?

Answer 33

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

Question 34

Fact D - Two Years Separation with Consent?

Answer 34

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

Question 35

what qualifies as living apart?

Answer 35

Contrast those living in separate houses with those living in the same house- physical element, u need to be physical sep from other p

Question 36

*Questions to be asked when the couple are still sharing a house?

Answer 36

• Do the couple eat together?
  
  • Is their any community of life?
  • Do they share living spaces?

Question 37

cases for living apart?

Answer 37

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

Question 38

what does S.2(5) and (6) MCA 1973 give?

Answer 38

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

Question 39

what is s 2 6 says?

Answer 39

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

Question 40

case for Consent (mental element)?

Answer 40

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

Question 41

Fact E ?

Answer 41

Five Years Separation

• S.1(2)(e) MCA 1973
• No consent needed

Question 42

how does fact e differ from fact d?

Answer 42

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.