Divorce UNIT 23

1. Divorce UNIT 23

2. Preview  Definition  History  Grounds for divorce  Stages in obtaining a divorce  Court orders  Cases

3. Divorce  The legal termination of marriage  Under English law, the basis for divorce is the irretrievable breakdown of marriage  The official request to a court to end a marriage is called divorce petition  Petitioner - respondent

4. History of divorce law in UK  Prior to 1857 church courts determined the law on divorce: although nullity decrees could be made, divorce was not available through courts  The only form of divorce – by an Act of Parliament – a hugely expensive procedure open only to the wealthy and to husbands  Marriages of the poor – ended in the husbands (less often wives) deserting, and even in wife- sales, a practice believed by the rural poor to terminate marriage (T. Hardy, The Mayor of Casterbridge)

5. History  Matrimonial causes Act 1857 – created an alternative to divorce by an Act of Parliament: a procedure through the courts  Discrimination: Difference between the grounds available to husband and wife, e.g. a husband could rely on his wife’s adultery, but a wife could rely on a husband’s adultery only if there were aggravating circumstances (incest, ‘unnatural offences’: bigamy, rape, sodomy)

6. History  Matrimonial Causes Act 1923 put husband and wife in the same position (adultery grounds)  Matrimonial Causes Act 1937 extended the grounds to include cruelty, desertion or incurable insanity

7. History  Before 1973 (fault divorce) Matrimonial Causes Act the petitioner was required to present in open court evidence to support the grounds set out in the petition, by introducing witnesses if necessary – expensive, embarassing, stressful  1969 Divorce Reform Act introduced irretrievable breakdown of a marriage as the only ground for divorce (no-fault divorce)

8. History  1973 Matrimonial causes Act A special procedure introduced for undefended divorces: the petitioner had to lodge the petition outlining the grounds for divorce, a statement concerning arrangements for the children and an affidavit confirming the truth of these documents

9. Ground for divorce  Irretrievable breakdown of a marriage  It can be established by proving one or more of five facts  Proof of irretrievable breakdown without one of the five facts is insufficient  Proof of one of the five facts raises an almost irrebuttable presumption that marriage has irretrievably broken down

10. Five facts  1. Adultery  2. Unreasonable bahaviour  3. Two years separation  4. Five years separation  5. Desertion

11. Adultery  Sexual intercourse by consent between a married person and someone of the opposite sex who is not that person’s spouse

12. Adultery  Before the Divorce Reform Act adultery was a ground for divorce; now adultery in itself is insufficient  The PETITIONER must satisfy (= convince) the court that the RESPONDENT has committed adultery and that it is intolerable to live with them

13. Adultery  The test is subjective: Does this petitioner find it intolerable to live with this respondent?  Cohabitation of over 6 months after becoming aware of adultery ‘destroys’ the fact

14. UNREASONABLE BEHAVIOUR  The petitioner must satisfy the court that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent  Replaces the old ground of cruelty  Whether the respondent’s behaviour is such that the petitioner can no longer reasonably be expected to live with him is a question of fact, and one for the court, not the petitioner, to answer

15. Unreasonable behaviour  A subjective view should be taken of the petitioner’s character and personality and an objective view of whether it is reasonable to expect her to live with the respondent (Livingstone-Stallard v Livingstone-Stallard 1974)

16. Unreasonable behaviour  Divorces are granted for a wide range of behaviour:  Violence  Subjecting a spouse to a constant criticism and disapproval  Dogmatic and chauvinistic behaviour towards a sensitive wife  Financial irresponsibility  An affair in which there was no adultery

17. Unreasonable behaviour  More than a mere state of affairs or state of mind  It is „action or conduct by one which affects the other”  Incidents, which may be trivial, when looked at cumulatively, can amount to behaviour that comes within this provision

18. Unreasonable behaviour  A difficult problem arises when the respondent, because of mental or physical ill-health, cannot help his/her behaviour

19. Katz v Katz (1972)  The husband suffered from manic-depressive illness accompanied by paranoid or schizophrenic features  He was rigid and obsessive  Accused his wife unreasonably of sexual misconduct  She was driven to attempted suicide

20. Katz v Katz (1972)  The wife was granted a decree  To determine whether such behaviour on the part of a respondent who is mentally ill and lacks the capacity to form any intention reaches the quality and standard envisaged by the behaviour fact, the test to be applied is whether after making allowances for his disabilities and the temperaments of both parties, the character and gravity of his behaviour is such that, in the opinion of the court, the petitioner cannot be reasonably expected to live with him

21. Thurlow v Thurlow (1976)  The wife was an epileptic who, in addition, suffered increasingly from a severe neurological disorder  She was bedridden, incontinent, and displayed bad temper, aggression and became destructive  She was hospitalized, the prognosis being that she would require indefinite institutional care

22. Thurlow v Thurlow (1976)  The husband was given a decree  It was said that „behaviour” included negative conduct, e.g. prolonged silences or total inactivity, as well as positive conduct  It included conduct which was involuntary and resulted from mental or physical illness or injury  The court took account of the obligations of marriage („in sickness and in health”) but it had to take into accountthe effect on the health of the petitioner and his capacity to bear the stresses imposed

23. Desertion  The petitioner must satisfy the court that the respondent has deserted them for a continuous period of at least two years.

24. Desertion: four elements  1) de facto separation between the spouses  2) animus deserendi – an intention to remain separated from the other  3) there is no desertion if separation is by consent  4) if one has a reasonable cause or reasonable excuse for leaving the other, s/he is not in desertion (e.g. when a Muslim man took a second wife against the will of the first one, it was held she had a reasonable cause for leaving him, and was not in desertion)

25. Two years separation and consent  If the parties have lived apart for a continuous period of at least two years and the respondent consents to a divorce, the petitioner is entitled to a divorce.  The parties are to be treated as living apart unless they are living with each other in the same household – this is not the same as living together in the same house (Fuller v Fuller)

26. Consent  Consent – a positive requirement  The mental capacity – the same as that required for marriage: does the respondent understand the nature of his consent, and appreciate the effect and nature of giving it?  Respondents must be given such information as to enable them to understand the effect of the decree

27. Five years separation and no consent  If the parties have lived apart for a continuous period of at least five years, the petitioner is entitled to a divorce, whether or not the respondent agrees.  This means that a spouse can be divorced against his/her will, even where she is blameless and even where she does not believe in divorce

28. Stages in obtaining a divorce  1. The DECREE NISI: the court is satisfied that the petitioner is entitled to a divorce. Once this is granted, the petitioner must wait for a minimum period of six weeks before applying for  2. the DECREE ABSOLUTE, which is the final stage in the divorce.  The reason for the gap: to give an unsuccessful respondent an opportunity to appeal against the granting of the decree absolute

29. The Family Law Act 1996 General principles  Institution of marriage should be supported  The parties should take all steps to save the marriage

30. The Family Law Act 1996 General principles  A marriage which has irretrievably broken down should be brought to an end  With minimum distress to the parties and to the children affected  Promoting as good a continuing relationship between the parties and any children affected as is possible in the circumstances  Without costs being unreasonably incurred  Any risk of violence should be removed or diminished

31. A timetable for divorce procedures under the Family Law Act 1996 0 months 3 months ‘information meeting’ Statement of marital breakdown (cannot be made until the parties have been married at least 1 year) The period of reflection and consideration starts; marriage counselling; arrangements for children and financial arrangements If there are no children, the parties can apply for the divorce order 9 months 9-15 months

32. The Children Act 1989  Under this Act, the court can make a variety of orders regarding children:  Contact order  Residence order  Prohibited steps order  Specific issues order

33. Contact order  Requires the party with whom a child is living to allow the child to visit or stay with another party or parties on a regular basis  Concern about domestic violence

34. Residence order  Settles arrangements about where the child is to live  Shared or joint residence order can be made

35. Prohibited steps order  Designed to prevent a party from taking certain steps in relation to the children which might be to their detriment (e.g. taking them abroad to live permanently, preventing a child’s school, religion or surname being changed)

36. Specific issues order  Determines specific issues that have arisen regarding care of the child (e.g. a child’s medical treatment, education)

37. STATEMENT OF ARRANGEMENTS  When applying for a divorce in a marriage in which there is a child or children, the petitioner must also send a statement of arrangements for the children to the court which sets out the arrangements proposed for the children after the divorce

38. Factors taken into account  The wishes of the child  Their physical, emotional, and educational needs  The likely effect of any change  The child’s age, background and characteristics  Any harm the child has suffered or might suffer in the future  How capable the parents are of meeting the child’s needs

39. Property: (a joke)  A wealthy businessman asks his wife what she would like for her birthday: ‘a car, jewellery, perhaps?” She replies: „Honey, I want a divorce” „Hell, I can’t afford that”, comes the shocked reply

40. Financial consequences of divorce  Most husbands – in a much more powerful position than their wives  The division of labour in the family adversely affects the economic viability of women, esp. when they have children  There is evidence that on divorce, women suffer most, men come out of marriage better-off  The law is attempting to redress this imbalance

41. The origins of financial provisions  The ecclesiastical courts offered wives some financial protection: they could order the husband to pay alimony pending suit and permanent alimony after granting a separation a mensa et thoro  With the introduction of divorce in 1857, this power was vested in the Divorce Court  In 1963 a lump sum order was accepted  1973 the Matrimonial Causes Act

42. The settlement culture  Most couples do not go to court but settle their financial arrangements by agreement  Disadvantages: 1) the terms of the settlement may reflect an imbalance of power between the parties; 2) it is lawyers who decide, not the parties

43. Property rights  Property adjustment order  Periodical payments order  Pension sharing order  Lump sum order  Order for sale of property  Consent order

44. Property adjustment order  An order affecting the rights of ownership of property of either spouse, or both, e.g. the transfer of the matrimonial home to one party or the other.

45. Periodical payments order  An order that one party must pay a regular sum of money to the other party  If they are not paid, enforcement proceedings can be brought; not easy to enforce unsecured payments  Secured periodical payments – protected even if the payer becomes bankrupt  Periodical payments cease to have effect on payer’s death (unless secured), and on the remarriage of the payee

46. Pension sharing order  An order providing for one party to claim a share of the other party’s pension entitlement.

47. Lump sum order  An order for the payment of a specified sum of money  The most important use of lump sums – to adjust the parties’ capital assets  Routine in cases where the husband is wealthy  May be ordered if the wife needs a capital sum e.g. in order to purchase a house or set up a business

48. Consent order  Arrangements between the parties  Usually in the case of an ‘amicable’ divorce  Drawn up by a solicitor, but it has to be formally approved by the court

49. Factors taken into account  The income and earning capacity of the parties  The financial needs and obligations of each party  The standard of living enjoyed by the family during the marriage  The age of each party and the length of the marriage  Any disabilities from which either party may suffer  The contribution made by each party during the marriage  The conduct of the parties does not usually have a bearing on the nature of the financial settlement

50. Divorce statistics (UK)  1961-1991: fivefold rise in the divorce rate  Divorce rate has risen from 4.7 in 1970 to 13.7 in 1999  In 2003 the median duration of a marriage: 11.3 years  1 in 4 children will be affected by divorce by the time they are aged 16  69% divorces – granted to wives