Divorce Reform

Question 1

What did the case of Dennis v Dennis 1955 say?

Answer 1

No definition of adultery in statue, but said 2 people of opposite sex, having voluntary sexual intercourse.

• no rape
• no homosexual relationships

Question 2

What did the case of cleary and cleary 1974 say?

Answer 2

Must find it intolerable to live with respondent but not because of adultery, could be because they smell.

Question 3

What statue governs the old divorce law?

Answer 3

Matrimonial causes act 1973

Question 4

What were the five facts?

Answer 4

1. Adultery
2. Behaviour
3. Desertion
4. 2-year separation.
5. 5-year separation.

Question 5

What does s.1(1) of the matrimonial causes act 1973 say?

Answer 5

Only one ground for divorce, the irretrievable breakdown of the marriage.

Question 6

What does s.1(2) of MCA say?

Answer 6

One of the five facts has to be proven.

Question 7

What does s.1(3) of the MCA say?

Answer 7

One year time bar applies.

Question 8

What does s.3(2) of the MCA say?

Answer 8

If you hadn’t been married a year, could make a petition based on facts that occurred during the first year.

Question 9

How do you prove adultery?

Answer 9

Respondent has to admit it and sign acknowledgment of service and confession statement (tick the box)

Question 10

What are 5 issues with adultery?

Answer 10

1. No definition
2. Gave respondent all the power.
3. Power meant respondent used it as leverage to get better financial settlement.
4. If they refused to sign confession statement (tick box) petitioner had to find evidence which was hard.
5. If named third party (advised not to) documentation process doubled.

Question 11

What does behaviour come under?

Answer 11

S.1(2)(b) MCA 1973

Question 12

What does adultery come under?

Answer 12

S.1(2)(a)

Question 13

What will the court consider for behaviour (case)?

Answer 13

Ash v ash 1972, effect behaviour had on petitioner.

Question 14

Is there a definition of behaviour in statute?

Answer 14

NO - just had to be conduct which effected the petitioner.

Question 15

Does respondent need to be in control of their behaviour (case)?

Answer 15

NO - Thurlow v Thurlow 1976, husband got successful divorce where wife had neurological issues which meant she beat him.

Question 16

Can an omission suffice as behaviour (case)?

Answer 16

YES - Katz v katz 1972

Question 17

Does falling out of love suffice as behaviour (case)?

Answer 17

NO - Buffery v Buffery 1988.

Question 18

What was the issue with the ‘behaviour’ factor?

Answer 18

Easy for couples to make behaviour up. Easy for them to assemble events which could be taken out of context to be seen as unreasonable behaviour.

Question 19

What case sets out the test for behaviour?

Answer 19

Livingstone-stallard v Livingstone-stallard 1974.

Question 20

What did livingstone-stallard say?

Answer 20

Would any right thinking person come to the conclusion that this husband has behaved in such a way that the wife cannot reasonably be expected to live with him taking into account all of the circumstances, character and personality.

Question 21

Name a relevant important case for behaviour?

Answer 21

Owen’s v Owen’s 2018.

Question 22

Summarise Owen’s v Owen’s 2018.

Answer 22

• mrs Owen’s only names 5 instances of behaviour just to get the petition through.
• mr Owen’s said he hadn’t done any of it, judge said it was flimsy.
• Mrs Owen’s argued that while focus of behaviour should be petitioners reaction I.e. her not wanting to live with him anymore.
• court didn’t have time to hear all evidence.
• claim failed she had to wait 5 years before getting a divorce.
• had to divorce not been defended by mr Owen’s, she would have had a successful petition.

Question 23

What does desertion come under?

Answer 23

S.(1)(2)(c)

Question 24

What are the four elements to desertion?

Answer 24

1. Respondent has left petitioner.
2. Respondent regards marriage as being at an end.
3. Respondent left without cause.
4. Petitioner didn’t consent to respondent leaving.

Question 25

What does 2-year separation come under?

Answer 25

S.1(2)(d) MCA 1973, brought under divorce reform act 1969.

Question 26

What does the act say about 2-year separation?

Answer 26

The parties have loved appart for a continuous period of at least 2 years immediately proceeding the presentation of the petition AND THE RESPONDENT CONSENTS.

Question 27

How must consent be given for 2-year separation?

Answer 27

1. In writing.
2. Tick yes on consent form.

Question 28

Can consent be withdrawn for 2-year separation?

Answer 28

YES - at any time before the final order giving respondent lots of bargaining power.

Question 29

What did S.2 of the MCA 1973 do?

Answer 29

Permitted a couple to co-habit for a period of 6 months (on and off) without affecting their ability to get a divorce.

Question 30

What did S.2(1) of MCA say?

Answer 30

One party SHALL NOT, be able to rely on adultery if they continue to co-habit with the other party for more than 6 months since the date of knowledge of the adultery.

Question 31

What was the issue with S.2(1) of the MCA?

Answer 31

Wording SHALL NOT was a statutory ban, if you didn’t have legal advice you wouldn’t know this.

Question 32

What does S.2(3) of the MCA say?

Answer 32

Relates to behaviour, if you want to rely on behaviour, then you are allowed to live/co-havit with another up to 6 months from the last incident you relied upon without affecting your ability to get divorced.

Question 33

Issue with S.2(3) of the MCA?

Answer 33

If you exceed the 6 month limit you will need to justify to the court why you did so.

Question 34

What did Bradley v Bradley say about S.2(3)?

Answer 34

Divorced allowed even tho 6 month time limit was exceed due to wife having lots of children and struggling to find alternative accommodation.

Question 35

What does S.2(5) of the MCA say?

Answer 35

Allowed parties relying on 2/5 year rule to co-habit for a max of 6 months and still get a divorce in attempted reconciliation.