S 5 Hardship bar Flashcards
When can S 5 be used
where there is grave hardship, financial or otherwise, and it would be wrong in all the circumstances to dissolve the marriage N.B. only in cases relying on S 1(2)(e) (5 years separation)
What must the hardship be a consequence of
a conséquence of the divorce as a result from a change of legal status rather than the result of relationship breakdown.
Which case indicates it will rarely be wrong in all the circumstances to dissolve a marriage
Julian v Julian
What was decedied in Reiterbund v Reiterbund
loss of the chance of state widows pension did not count. The wife would get state benefits of the same amount, so couldn’t establish grave financial hardship.
What did Reiterbund v Reiterbund decided in regards to age and dissolving marriages
As the parties were older, the court believed it was not hard to deprive him of the chance to re-marry. (unlikely to be followed). However in Mathias, since the parties were young it would have ben ridiculous to keep alive a shell of a marriage
What happened in Archer v Archer
rich wife would not suffer grave financial hardship if she were deprived of maintenance of her husband if her husband died before her. The court agreed but because she had her own substantial financial assets it would not be regarded as grave hardship.
Must the hardship concern financial hardship?
Most cases involve women of religious or ethnic communities where argument is that divorce will make them into social outcasts.
What happened in Banik v Banik
the wife argued she would have been ostracised/ made into a social outcast if she was divorced. On the facts, it was proved that this would not be the case, as she would continue living with her Brother’s family in an unchanged position
What happened in Lee v Lee
A husband and wife separated and the wife remained in the matrimonial home with her ill son who needed constant nursing care. The wife used S 5 to oppose the divorce as the the sons house was too small the accommodate the wife and half the proceeds would not be enough to rehouse herself in the area her son lived. The H petition was dismissed and she made out grave hardship. Divorce ultimately granted when the son died.
What happened in Rukat v Rukat
W applied for hardship and unable to return to Sicily because of community attitude. There was no evidence that anyone would know she had divorced. Hardship is not judged subjectively.
It was found that objectively no one would know, and since no one in the community would have such thoughts towards her. Hardship should be considered with an ordinary and sensible inspection.
