MARRIAGE AND CIVIL PARTNERSHIP

FAMILY LAW

(England and Wales)

LECTURE 1

MARRIAGE AND CIVIL PARTNERSHIP

1. Introduction

2. Marriage. The right to marry

3. Civil Partnership

4. Entry into Marriage

5. Entry into a Civil Partnership

6. Void and Voidable Marriages (the Law of Nullity)

7. The Legal Consequences of Marriage and Civil Partnership

 

Introduction

FUNCTIONS:defin­ing and altering status; providing physical protection and economic support; and providing mechanisms for adjusting and dividing property.

One of the distinguishing characteristics of family law is its discretionary nature.

KEY DEFINITION Discretion –being able to decide correctly what should be done

 

Marriage. The right to marry

(a) they are not within the prohibited degrees of relationship; (b) they are both over the age of 16; (c) neither of them is already married or in a civil partnership;

Gender Recognition Act 2004, section 2(1)

(a) has or has had gender dysphoria, (b) has lived in the acquired gender throughout the period of two years ending… (c) intends to continue to live in the acquired gender until death, and

Civil Partnership

DIFFERENCES BETWEEN MARRIAGE AND CIVIL PARTNERSHIP

CPA: Civil Partnership Act 2004   Adultery is a fact which can be used to establish the ground…  

Answer guidelines

2. The differences are symbolically important because they related to sex. They indicate that the law cannot accommodate, or feels uncomfortable… The question also asks you about whether two people of the same sex should be… - The religious significance of marriage and the fact many religions would not accept same-sex marriage. Should…

Entry into marriage

PRELIMINARIES:

(1) Marriages according to the rites of the Church of England:

- banns or on the authority of a common licence,

- a special licence,

- a superintendent registrar's certificate.

(2) Preliminaries for All Marriages, Other than Church of England Marriages:

- a superintendent registrar's certificate,

- the Registrar General's licence.

Entry into a Civil Partnership

The Civil Partnership Act provides for four different registration procedures - the standard procedure, the procedure for house-bound persons, for detained persons, the special procedure for cases where a person is seriously ill and not expected to recover.

 

Void and Voidable Marriages (the Law of Nullity)

  Reading: For the purpose of deciding whether a marriage is void under s.11,…  

Grounds on which a Marriage may be Voidable

KEY DEFINITION

Consummation.Vaginal intercourse. The fact contraception is used does not prevent there being consummation, but there must be penile penetration.

PROBLEM AREA

VOID MARRIAGE

- The marriage is automatically void, there is no need to obtain a court order to say so

 

- Any person can apply to have a marriage declared void

 

 

- A child born to a couple in a void marriage is 'illegitimate' unless the couple believed their marriage to be valid. However, illegitimacy has very little significance in law today

VOIDABLE MARRIAGE

  - Only the parties to the marriage can apply to have a voidable marriage annulled

The Legal Consequences of Marriage and Civil Partnership

In Balfour v. Balfour [1919] 2 KB 571, which is still the leading case, the Court of Appeal held that an agreement between a husband and wife in… (b)Property Rights (c)Parental Responsibility

SEMINAR 1

What you need to know: 1. The grounds on which a marriage or civil partnership can be void 2. The grounds on which a marriage or civil partnership can be voidable

Questions

Question 1

Jane, an Englishwoman, went to Ruritania to work, and there she met and married Fred, a Ruritanian man with whom she had fallen in love. He told her that although the law of his country allowed him to take more than one wife, he felt that she was so special he would never do so. After a few months Jane tired of his adoring, but boring company and decided to return home. She soon forgot about Fred and began to form a relationship with Tarzan, who had been briefly married to Jane's mother. Jane's mother had died two years previously and shortly alter meeting, Jane and Tarzan married. However, after the ceremony Jane could not bring herself to have sexual intercourse with Tarzan, as she is tormented by the thought of his relationship with her mother.

Advise Jane on the validity of her marriages.

Answer plan

Begin by examining the validity of the marriage to Fred:

• consider if both parties had capacity;

• this depends on where they were domiciled at the time of marriage;

• the effect of the polygamous, or potentially polygamous, nature of the marriage.

Then consider the validity of the marriage to Tarzan:

- consider capacity;

- problem of prohibited degrees;

- problem if Jane is already validly married to Fred.

Consider also the possibility that the marriage is voidable:

- non-consummation (incapacity or wilful refusal?)

Answer

In advising Jane on the validity of her marriages, it will be necessary to examine the first marriage to Fred, which took place in Ruritania. For this marriage to be valid, both parties must have had capacity to marry and the relevant formalities must have been complied with.

Turning to the issue of capacity, English case law has determined this by reference to two different tests. Cases such as In the Will of Swan (1871) have judged the validity of the marriage by examining whether the parties had capacity to marry by reference to the law of the intended matrimonial home. This has the advantage of requiring only one jurisdiction to be examined, and treats marriage on a par with other contracts by examining its validity according to the jurisdiction the marriage has the closest connection to. It is the test most likely to render a marriage valid. However, the intended matrimonial home test is vague and uncertain, and problems may be encountered if the parties do not go on to set up a matrimonial home in the jurisdiction.

The second test requires the parties to have capacity by reference to the law of their respective domiciles before they married. This is the test favoured by the Law Commission as being more certain, and it viewed testing the validity of marriage by reference to something existing at the time of the marriage preferable to testing the validity by reference to something that can only really be established after the marriage takes place. Applying this test in the present case it must be established that each party to the marriage had capacity to marry according to the law of their ante-nuptial domicile, Sottomayer v de Barros (No 1) (1877).

Fred was domiciled in Ruritania. Ruritania was clearly his permanent home: Whicker v Hume (1838). Thus Fred would seem to have capacity to marry Jane, although it is arguable whether Jane had capacity to marry Fred. She begins with an English domicile. However, when she goes to Ruritania to work, she may have obtained a Ruritanian domicile of choice. To establish this it would be necessary for her to have made Ruritania her permanent home, that is, established a physical presence of a lasting nature, with an intention to make it her permanent home. This intention must be positive and demonstrate a fixed and settled intention to remain; mere indifference on Jane's part would not suffice (Winans v AG (1910)). In going to Ruritania to work, Jane's intentions are not clear. If she intended this as a temporary or transient measure then there is insufficient determination to acquire a domicile of choice. However, if on meeting Fred, Jane decides that she should settle in Ruritania then she may have acquired a Ruritanian domicile of choice.

If Jane is domiciled in Ruritania at the time of her marriage to Fred then she will also have capacity to marry, notwithstanding the potentially polygamous nature of the marriage, as Ruritanian law allows polygamy. It is assumed that the requisite formalities of Ruritanian law, which is the lex loci, have been complied with, and so the marriage will be valid: Herbert v Herbert (1819).

There is, however, a strong possibility that Jane was still domiciled in England at the time of her marriage to Fred, in which case her capacity must be judged according to English law. Lord Penzance in Hyde v Hyde (1866) defined marriage as 'the voluntary union of a man and a woman for life to the exclusion of all others' and this definition has formed the basis of the English law rules on capacity. To be able to contract a valid marriage, an English domiciliary must be over 16 (which it is assumed Jane and Fred are); not within the prohibited degrees of relationship, (which again appears to cause no difficulty here); not already married; and the marriage must not be polygamous. This is the aspect of the marriage that requires greater examination.

Section 11(d) of the Matrimonial Causes Act 1973 provides that a marriage that is polygamous is void. This means that the marriage is treated as a complete nullity, and there is no need to obtain a nullity decree unless financial provision is to be sought under s 23 or 24 of the Act. In the instant case the marriage is not actually polygamous, but it has the potential, given Fred's domicile, to become polygamous. In Hussain v Hussain (1982) a marriage between a man and a woman in Pakistan which permitted polygamy was nevertheless held to be valid, as the woman had the Pakistani domicile and could not take a second husband, and the man had an English domicile and could not take a second wife, thereby rendering the marriage monogamous. This would not apply to the marriage between Jane and Fred, as the roles are reversed and Fred could still, in theory, take another spouse. Thus the marriage between Jane and Fred, whilst not actually polygamous, is potentially so. Until the provisions of the Private International Law (Miscellaneous Provisions) Act 1995 (PIL (MP) A) came into force in 1996, s 11(d) MCA 1973 had the effect of making a potentially polygamous marriage by an English domiciliary void. This somewhat discriminatory rule was the subject of criticism by the Law Commission in i heir report on polygamous marriages, which thought that the rule as relating to potentially polygamous marriages was harsh. Accordingly s 5 of the PIL (MP) A 1995 amended s 11(d) to make marriages that were only potentially polygamous valid. The Act has retrospective effect, s 6(1), but it does not retrospectively validate a potentially polygamous marriage if a party to that marriage has gone on to celebrate a later valid marriage, s 6(2).

In Jane and Fred's case, we are not told when their marriage took place. If it took place after the provisions of the PIL (MP) A 1995 were in force, then it is valid. If n took place before this date, then it may still be valid, provided neither party has gone on to celebrate a subsequent valid marriage.

It therefore seems that if Jane was domiciled in England the first marriages status will depend upon when it took place and the status of any second marriage, whereas if she were domiciled in Ruritania it would be valid. English law will not refuse to recognise valid polygamous marriages for public policy reasons: Mohammed v Knott (1969). The second marriage will be valid if both parties have capacity by the law of their ante-nuptial domiciles and have complied with the requisite formalities. Both Tarzan and Jane are domiciled in England at the time of the marriage and are male and female and above the age of 16. There is, however, a potential problem given that for a short while Tarzan was married to Jane's mother. There would be an absolute prohibition on Jane marrying Tarzan if he were her natural or adoptive father; likewise if she had at any stage been a child of the family whilst Tarzan was married to her mother: Marriage Act 1949 Sched 1. However, if Jane had never been treated by Tarzan as a child of the family and Tarzan's relationship with Jane's mother had occurred when Jane was no longer living at home, then provided that Tarzan and Jane are both over 21 they will be able to marry: Marriage (Prohibited Degrees) Act 1986. However, an additional problem may be encountered if the first marriage to Fred was valid. English law requires both parties to be single, and if one or more of them is already married then the subsequent marriage is a nullity: MCA 1973 S 11(b). If the marriage to Fred was valid then the marriage to Tarzan will be void. However, if the marriages to Fred and Tarzan took place before the provisions of the PIL (MP) A 1995 came into force then the marriage to Fred is void as potentially polygamous, and the marriage to Tarzan will be valid. This is because the retrospective nature of the provisions does not operate if there has been a second valid marriage according to the law at the time it was celebrated.

There are possible grounds for arguing that the marriage between Jane and Tarzan is voidable for one of the reasons in MCA s 12. It does not seem that the marriage has been consummated. Jane's attitude has ensured that there has been no complete and regular intercourse (D p A (1845)) once the marriage has taken place. Premarital intercourse does not suffice for consummation. It is then necessary to consider whether this is due to incapacity to consummate or wilful refusal.

Either party can petition on the basis that there is some physical or psychological reason preventing consummation (D v D (1982)). Here it would seem that Jane has psychological problems that are preventing intercourse.

In order for the decree to be granted these reasons must exist at the date of the petition and the date of the hearing (Napier v Napier (1915)), but there must also be no practical possibility of intercourse (S v S (1962)). In the instant case it is not clear what, if anything at all, can be done to help Jane; neither is it apparent that she wishes to be helped to overcome the problem. If it is felt that there is a possibility of intercourse should Jane accept help which would not expose her to too great a risk, then Jane's refusal to seek such assistance may amount to a wilful refusal to consummate. This would be a settled and definite decision without just cause (Horton v Horton (1947)), and would give Tarzan the opportunity to petition for nullity.

A voidable marriage is valid unless and until it is dissolved by way of nullity decree (De Renpille v De Renpille (1948)), unlike the void marriage. Therefore, Jane should seek a nullity decree in respect of her marriage to Tarzan.

 

LECTURE 2

PROPERTY CONSEQUENCES OF RELATIONSHIPS

1. Property Rights of Engaged Couples

2. Property Rights of Married Couples

3. Property Rights of Cohabiting Couples

4. Resulting trust

5. Constructive Trust

6. Proprietary Estoppel

 

Property Rights of Engaged Couples

Engaged Couples can apply under s.37 of the Matrimonial Proceedings and Property Act 1970 and s.17 of the Married Women's Property Act 1882 for a property dispute to be settled. A s.17 application must be brought, however, within three years of the termination of the engagement (s.2(2)).

 

Property Rights of Married Couples

Reading: For example, a person who makes a payment of money into a bank account held in…  

Property Rights of Cohabiting Couples

Many cohabiting couples believe that they have the same rights as married couples, but they are badly mistaken.

Property of Cohabiting Couples. The case of Burns v. Burnsprovides a good illustration of the disadvantages of being a cohabitant compared with a… Compare Marriage and Cohabitation:

Marriage or civil partnership

To enter or end a marriage or CP formality requirements must be met

 

At the end of a marriage or CP the court has extensive powers to redistribute the couple's property and make maintenance orders

 

During marriage one spouse can seek financial support from the other (see e.g. Domestic Proceedings and Matrimonial Causes Act 1978)

 

A father who is married to the mother of his child will automatically obtain parental responsibility

 

When someone dies without a will, his/her spouse will automatically inherit all or most of the deceased's estate

 

There are tax benefits for spouses, particularly in relation to capital gains tax or inheritance tax

Cohabitants

There are no formal requirements to start or end cohabitation!

 

The court has no power to order maintenance to cohabitants nor redistribute property (although orders can be made in respect of children)

 

There is no obligation for a cohabitant to financially support another

 

A man who is not married to the mother of his child will not automatically gain parental responsibility, but may acquire it by other means

 

When someone dies without a will, his/her cohabitant will not inherit anything automatically

 

There are no tax advantages for unmarried couples

Cohabitation contracts

Resulting Trust

Another case where a claim was made under a resulting trust was Springette v. Defoe [1992]. In this case the parties, two elderly cohabitants, had…  

Constructive Trust

Quantification of the Beneficial Interest Reading: 1) Oxley v. Hiscock [2005] Fam 211 Concerning: calculation of the share a party has under a…

Proprietary Estoppel

   

Seminar 2

What you need to know:

□The difference in legal treatment of cohabitees and married couples or civil partners

□ When the law treats unmarried couples and married couples in the same way

□ The law on resulting trusts, constructive trustsand proprietary estoppel

□Proposed reforms of the law on cohabitation.

 

FURTHER THINKING

A common essay questions asks you to consider whether the law on cohabitation needs reform? Do you think there is a case for saying that unmarried couples should be treated just like married couples for all matters in relation to children, but differently in relation to financial matters between themselves? Is it possible to make this distinction: does not a parent's financial position affect a child? Do children have a right not to be treated in any way differently based on the marital status of their parents? How would the law be different if we took this principle seriously?

 

Problem question

Alan owns a large detached house, which is registered in his name alone. He meets Stove at a night club and invites him to stay in his house. Over breakfast the next morning Alan says to Steve: 'I love you and everything I have is yours'. Steve moves in and they live as a couple. Alan tells Steve that if he does domestic chores about the house, he will make sure that he does not go unrewarded. Steve undertakes the housework and pays for several bills. Once he gives Alan some cash as a gift because Alan says he is so hard up that he is struggling to meet the mortgage payments. Steve does some decoration and puts up a shed in the garden. Three years later over supper Alan proposes to Steve and says 'I want you to share ownership of the house'. Steve says, 'But I thought the house was ours already'. This leads to a huge row and Alan throws Steve out of the house, saying their relationship is over. Does Steve have any property interest in the house?

Answer guidelines

Resulting trust: Steve cannot claim a resulting trust as there is no contribution to the purchase price. Constructive trust. Steve will need to show there is a common intention. He… Proprietary estoppel: Steve will need to show a promise or assurance. He could rely on Alan's breakfast statement or…

Question 1

Advise Michael and Sarah on their beneficial entitlement to the following: (a) On their engagement, Michael gave Sarah an antique diamond ring, worth… (b) £20,000 invested in a building society savings account, which is held in joint names,

Answer plan

It is clear that the couple do not want an MCA 1973 solution to their problems, and so normal property law rules apply.

• the engagement ring: look at Law Reform (Miscellaneous Provisions) Act 1970 s 3 - likely that she will keep it;

• the money invested in a joint account: arguably used as a common fund - presumption that jointly owned;

• the shares bought from the account: conflict between presumption that jointly owned and argument that each individual can buy for himself;

• the matrimonial home is registered in Sarah's name only -she has legal entitlements. Examine if beneficial entitlement by way of implied, resulting or constructive trust, and consider Matrimonial Proceedings and Property Act 1970s 37.

Answer

(a) The position of engagement rings is often determined by reference to s 3 of the Law Reform (Miscellaneous Provisions) Act 1970. This section provides that the gift of an engagement ring should be assumed to be an absolute gift but the presumption may be rebutted by proving that the ring was given on the implied condition that it should be returned if the marriage did not take place for any reason. In the instant case Michael and Sarah have gone on to marry. However, the presumption that a man has given a woman a gift in such a situation would be very strong. The diamond ring, however, is quite valuable and has been a family heirloom; so in order for it to belong to Michael rather than Sarah it would be necessary for Michael to show that the presumption of advancement has been rebutted by a contrary intention. This contrary intention needs to be that he only intended the ring to be a conditional gift upon the marriage subsisting. It is easier to show in the case of a valuable family heirloom but nonetheless, the presumption that this is a gift appears to be quite strong and on balance it would seem that Sarah is entitled to keep the ring.

(b) Money invested in a joint savings account may cause difficulty in that it will often depend on the intention of the parties and their respective contributions as to who is entitled and in what proportion. In the instant case, the parties have contributed to the savings account but little is known as to what arrangements they made for withdrawing from the savings account. Where money is invested in a joint account there is an argument that the money should be regarded as jointly owned. In Jones v Maynard (1951) both husband and wife contributed to the account just as Michael and Sarah have done. In that case, as in the present, both paid in their various earnings and funds and, although the husband paid in more than the wife, it did seem that they viewed the account as a common savings account. The argument would be that this is a joint account and that they are therefore both equally entitled since they viewed it as a common pool. There is no evidence that they merely intended the shares to reflect their contributions.

(c) The shares purchased for £6,000 which are registered in Michael's name only were purchased with a cheque drawn on the couple's joint account. If the case of Jones v Maynard (1951) were to be followed then the shares would be jointly owned since the investments could be regarded as joint investments and merely a continuance of their arrangements for the joint account. However, there is an argument that if both were entitled to draw on the account to purchase whatever they wished to by way of investments or chattels, then each separate investment or chattel should be regarded as belonging to the person who made the investment or purchase of the chattel as in Re Bishop (Deceased) (1965). If that were the case then the shares would be owned by Michael absolutely since they are registered and purchased in his name. If, however, they could regard it as an extension of the joint account then the shares would be jointly owned.

(d) The former matrimonial home is registered in Sarah's name only. This declaration of legal title in the conveyance would conclusively establish that Sarah is the sole legal owner unless it can be established that there is fraud or mistake {Goodman v Gallant (1986)). There is no evidence that there has been any separate declaration of a beneficial entitlement in favour of Michael and an interest under a trust must be created and evidenced in writing. However, it is possible that Michael may have an interest in the home by way of some resulting implied or constructive trust. The initial deposit of £20,000 was paid by Sarah and the mortgage instalments have been met from the joint account. Michael has renovated the property and carried out interior design. It is necessary to examine to what extent, if any, Michael has acquired or enlarged his interest in the home. To acquire an interest under a resulting, implied or constructive trust it will be necessary to show that there is a common intention between the parties that, although Sarah has the legal entitlement, Michael has a beneficial interest in the home. It will also be necessary to show that Michael, as the owner of the beneficial interest, has acted to his detriment based on this common intention. Michael has not made any direct contribution towards the deposit; however, it is arguable that he has made contributions towards the mortgage instalments. The couple have had a joint bank account which they have regarded as a common pool and both have paid into the account their salaries and both have made various drawings on the account. This would seem to provide evidence of a direct contribution as required in Lloyds Bank v Rosset (1991), which would thereby establish an interest on behalf of Michael. His contributions do appear to be substantial in terms of meeting the mortgage requirements and it seems that the £80,000 mortgage that was initially required has reduced to some £20,000 outstanding now. Therefore, if one could argue that there is a joint contribution to the mortgage instalments then Michael will acquire some kind of interest in the home. There is the further possibility that this interest may have been enlarged by his efforts each weekend, renovating and designing the interior of the home.

According to Lloyds Bank v Rosset (1991) the only way that this contribution would suffice would be if it were to be substantial in money or money's worth to the improvement of the property. In Lloyds Bank itself the wife's decorating and supervision of workmen was insufficient to give rise to an interest. In Michael's case, much would depend upon the extent of the renovations that he carried out. The interior design really would be superfluous. However, the renovation and the amount of impact that is made on the transformation of the property would determine whether this would give or enlarge any interest in the home. Following Lloyds Bank v Rosset (1991), caution must be exercised in trying to give an interest under this head. The cases of Cooke v Head (1912) and Eves v Eves (1975) illustrate just how substantial the work must be in order to qualify under this head. However, there is the possibility that if Michael does not acquire an interest under a trust by virtue of this work he may nevertheless enlarge his interest in the home by reference to s 37 of the Matrimonial Proceedings and Property Act 1970. This section provides that where a husband or wife contributes in money or money's worth to the improvement of property in which, or in the proceeds of sale of which, either or both of them have the beneficial interest, the person who contributes shall, if the contribution is of a substantial nature and subject to any agreement to the contrary, be treated as having acquired by virtue of his contribution a share or an enlarged share. The extent of such a share is the extent that the court considers just and equitable.

Here it could be argued that Michael has contributed to the improvement of the property. His work can be measured in money or money's worth; he has spent every weekend for a substantial period of time; and it does seem to be the sort of work that would normally be paid for if done by someone else. The question is, then, whether the work is of a substantial nature. Ordinary everyday do-it-yourself and common repairs to property should not suffice to enlarge Michael's interest. However, if the work has been substantial and has improved the house then he ought to be entitled to enlarge his share. The enlarged share must not be negatived by any agreement by the spouses and the court has a discretion in deciding to what extent Michael's share will be increased.

In conclusion, therefore, the house is now valued at £150,000 with a mortgage outstanding of £20,000; this leaves equity of £130,000 in the house. The initial deposit of £20,000 by Sarah represents one-fifth of the original value of the home; the remaining four-fifths was contributed to by both parties in paying the mortgage and since their intention appears to have been that they should require a joint interest by so doing, the mortgage contributions will be split two-fifths to Michael, two-fifths to Sarah. This would give Michael a two-fifths share in the equity and Sarah three-fifths share in the equity. However, some adjustment may need to be made for the improvement effected by Michael's renovations and on balance it would seem that the couple would more or less be jointly entitled to any proceeds of sale.

In Midland Bank v Cooke (1995) it was stressed that it is important to establish an interest under a constructive trust by reference to the strict rules in Gissing v Gissing (1971) and Lloyds Bank v Rosset (1991). However, once the common intention to share can be shown by reference to those rules, as it can in this case, then, in quantifying the shares of the parties, the court can take into account the whole history of the relationship, including behaviour and contributions that would not suffice in themselves to create the interest in the first place. Thus, whilst Michael's renovations would not suffice as evidence of a common intention giving rise to a constructive trust, they can be referred to so as to determine the size of the shares the parties intended. This arguably reinforces the argument that the parties should have more or less equal shares here.

 

LECTURE 3

DIVORCE AND DISSOLUTION

1.The Development of Divorce Law

2. The Ground for Divorce

3. Bars to divorce

4. Divorce Procedure

5. Effects of Divorce

6. Recognition of a Foreign Divorce

 

 

Ground for divorce

 

Irretrievable breakdown Based on proof of 1 of 5 facts

Adultery

Desertion

Behaviour

2 years’ separation with consent

5 years’ separation

 

 

Bars to divorce

 

The Development of Divorce Law

The law governing divorce is laid down in the Matrimonial Causes Act 1973 and procedural rules are laid down in the Family Proceedings Rules 1991. Part I of the Matrimonial Causes Act 1973 contains the law on the ground for divorce. Part II contains the law on property and finance on divorce. The rules governing jurisdiction to grant a divorce are laid down in the Domicile and Matrimonial Proceedings Act 1973, which provides that the divorce courts in England and Wales have jurisdiction to hear a petition for divorce (and for nullity and judicial separation) if either party to the marriage is domiciled in England or Wales when divorce proceedings are commenced; or either party was habitually resident in England and Wales for one year before commencement of divorce proceedings. Jurisdiction is not lost by a change of domicile or residence after commencement of proceedings.

The Ground for Divorce

KEY DEFINITION The ground for divorceis that the marriage has broken down irretrievably. But that can only be proved by showing one of the 'five facts'.

Irretrievable breakdown--------None of the 5 facts proved----------No divorce possible

Irretrievable breakdown-------- One of the 5 facts proved------------Divorce possible

No irretrievable breakdown--------One of the 5 facts proved--------No divorce possible

Fact 1. Adultery Matrimonial Causes Act 1973, section 1(2)(a) (...) that the respondent has committed adultery and the petitionerfinds…   KEY DEFINITION Adulteryis voluntary sexual intercourse…   In order to rely on the adultery fact, it is necessary to show two things: - the respondent has…

KEY DEFINITION

Thus, for example, in Fuller v. Fuller [1973] a decree was granted where the husband lived as a lodger with his wife and her new male friend. In…   Fact 5. Five-year separation Matrimonial Causes Act 1973, section 1(2)(e) (...) that the parties to the…

Bars to divorce

2) Section 5, MCA provides a bar but this can only be used in cases based on the five years' separation. The court has the power to refuse to grant… 3) Section 12A, MCA enables a court to make an order which means that a… 4) Section 10(2), MCA provides a bar that can be raised by a respondent but only for cases relying on two or five…

Divorce Procedure

Divorce is a two-stage procedure. A decree nisi of divorce is obtained first, and this is followed by a decree absolute after the expiration of six weeks. Only on the grant of decree absolute is a marriage terminated.

Undefended divorce

It is an exercising of the papers. There is no needed for parties to attend court.

Procedure is as follows:

- petitioner makes a divorce petition to a divorce county court,

- the petition must contain the specified information (see the schedule)

Defended Divorce

Defended divorce proceedings begin in the same way as an undefended divorce, but the respondent in the Acknowledgement of Service indicates an intention to defend. Such an indication does not of itself cause the proceedings to become defended, but must be followed by the filing of an answer within 29 days of receipt of the notice of proceedings. There is then exchange of pleadings by counsel and the hearing takes place in open court with oral evi­dence being given and cross-examination of both parties.

Effects of Divorce

-financial provision and property adjustment -an effect on a will (termination) -both retain parental responsibility for their children.

Recognition of a Foreign Divorce

Some divorces are 'transnational' - they take place in two different coun­tries. The Jewish get and the Muslim talaq are examples. The English…    

SEMINAR 3

Revision Checklist

What you need to know:

□The ground for divorce

□The facts establishing the ground

□The meaning of adultery

□The meaning of the behaviour ground

□ Proposals for reform of divorce law.

□ Dissolution for civil partnerships.

 

ESSAY QUESTION

Essay questions on divorce tend to ask you to discuss the current law on divorce. You will need to explain the ground for divorce and examine the five facts. Don't forget also to consider the bars to divorce. Sometimes essay questions ask whether or not the law on divorce should be reformed. You will then need to discuss some of the problems with the current law and consider how they could be dealt with by changing the law.

Problem question

Fiona and George have been married for five years. For the past two years they have lived in the same house, but have had separate bedrooms, although Fiona still cooks meals for them both and George washes their clothes. They have not spoken a word to each other for nearly a year. Several weeks ago Fiona admitted that she spent the night with another man. George has decided he wants a divorce; Fiona does not. George is very rich, while Fiona is very poor. Discuss whether George is entitled to a divorce.

Answer guidelines

You will want to start by setting out the ground for divorce and explaining the five facts. Here the following issues are raised:

1. Adultery. Has there been adultery? Has intolerability been shown?

2. Unreasonable behaviour: can the silence be unreasonable behaviour?

3. Separation: can they be said to be living separately? But note that Fiona does not consent. If there is no consent, the five-year bar must apply.

4. Do any of the bars apply?

 

Question 1

Advise Wilma as to whether she has any basis for divorce under the present law.

Answer plan

Present law

Ensure that you mention the one ground of divorce, irretrievable breakdown.

Check that a petition can be presented, which it can, given the duration of the marriage. Examine:

• s l(2)(a) — adultery and intolerability (unlikely on the facts)

• s l(2)(b) — behaviour (problem of Fred's condition; consider their characters; is it reasonable to expect them to continue to live together?)

• s l(2)(c) — desertion (unlikely)

• s l(2)(d) — two years living apart (physical separation; mental element; duration; Fred's consent — seems unlikely)

• s l(2)(e) — five years living apart (physical separation; mental element; duration possible s 5 application)

Answer

At present, there is one ground for divorce, namely that the marriage between Fred and Wilma has broken down irretrievably: MCA 1973 s 1(1). However, in order to establish irretrievable breakdown, Wilma must establish one of the five facts in s 1(2) of the MCA 1973: Richards v Richards (1972). From the facts of the question, it seems clear that the marriage has broken down irretrievably; despite Fred's unwillingness to divorce, there seems little realistic prospect for the couple's marriage to revive.

A petition for divorce may only be presented after one year of marriage (MCA 1973 s 3(1)), and since this marriage has lasted 10 years, Wilma can petition, provided she can establish one of the five facts.

There is no evidence that Fred has committed adultery, indeed his condition may make it impossible for him to achieve the penetration required for there to be voluntary sexual intercourse with another woman: Dennis v Dennis (1955). Section 1(2)(a) of the MCA 1973 provides that a petition may be presented on the basis that the respondent has committed adultery and that the petitioner finds it intolerable to live with the respondent. Although it is quite clear that Wilma has had voluntary sexual intercourse with Barney, she cannot petition on the basis of her own adultery. Instead this may be relied on by Fred if he were to cross-petition, with the additional requirement of intolerability having to be satisfied. The test for intolerability is subjective — does this petitioner find it intolerable to live with this respondent? — and there is no need for the adultery to be the cause of the intolerability: Cleary v Cleary (1974). In the instant case, it appears that Fred wishes to continue to live with Wilma, and so the intolerability does not exist, although if he later finds Wilma's attitude offensive, then the fact may be established: Goodrich v Goodrich (1971).

Fred would be precluded from relying on the adultery if he had continued to live with Wilma for a period in excess of six months following his discovery of the list adulterous liaison: MCA s 2(1).

A more realistic option for Wilma is to use the fact in MCA 1973 s l(2)(b) that therespondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. First, she will need to establish that there has beensome behaviour on Fred's part: a mere state of affairs is insufficient (Katz v Katz (1972)). Fred's physical condition may cause difficulty if he is merely handicapped; there would need to be a significant strain on Wilma for her petition to succeed: Thurlow v Thurlow (1975). If Fred had become difficult, bad tempered or violent, then Wilma's chances of success would increase. It is also possible to maintain a petition based on several incidents, each insufficient in itself, but which have a cumulative effect: Livingstone-Stallard v Livingstone-Stallard (1974). Wilma may be able to argue that Fred's Saturday nights out with his friends, his drunkenness, and his disturbing of her and their child amounted to intolerable behaviour. In addition, his action in driving whilst drunk was behaviour that led to his present incapacity.

Once some kind of behaviour has been established, it is then necessary to look at the character of the individual concerned (Ash v Ash (1972)), and examine whether it would be reasonable to expect them to continue to live together: Livingstone-Stallard v. Livingstone-Stallard (1974). Applying that to Wilma and Fred, it could be contended that the strain of looking after Fred, who has been severely incapacitated through his own negligence, is too much for Wilma. Against this it could be argued that Wilma has been having an adulterous relationship with Barney, she has continued to share the same house with Fred for a number of years, stating that she would not leave him, and, although cohabitation of more than six months is not an absolute bar under s 2(3) to a successful petition based on behaviour, it does seem that her unwillingness to remain is based more on her developing romance with Barney rather than Fred's behaviour. Nevertheless, in reality it is likely that Wilma would bring her divorce petition using the special procedure. This would mean she would be unlikely to face much opposition or questioning and there would be little examination of whether Fred's behaviour really justified a divorce.

It is unlikely that Fred could cross-petition based on Wilma's behaviour, as adultery per se or desertion must be pursued as separate facts: Morgan v Morgan (1973).

The fact of two years desertion by the respondent in s 1(2)(c) is very rarely relied on and is fraught with technicalities. First, Wilma would need to establish the fact of separation, that is, a withdrawal from married life: Price v Price (1970). They does not have to be a living apart in separate places; it is enough that a couple under the same roof but in two separate households, (Hopes v Hopes (1949)). In Free and Wilma's case, they do not have intercourse, but other aspects of married life are shared, and this would probably preclude desertion: Le Brocq v Le Brocq (1964). In addition, Wilma would have to show that Fred intended to desert her, and that this was without her consent. Both seem very unlikely to succeed, since the arrangement has to some extent been forced upon them by circumstances and the home scenario seems to be controlled by Wilma.

It may be more realistic to examine the facts based on separation, namely s 1(2)(d) and (e). Both require the petitioner to establish separation in that the parties have lived apart. Living apart is explained in s 2(6) by reference to whether the husband and wife live with each other in the same household. If they do, then they are not living apart. In Fred and Wilma's case, they have been living in two households once Wilma left to live with Barney. However, there is still the possibility that they lived apart prior to this, whilst in the same house. Although it will not suffice to show merely that there was no intercourse between them (Mouncer v Mouncer (1972)), if it can be shown that they did not share any married life, then they may be treated as living apart (Fuller v Fuller (1973)). From the facts, it is clear that Fred and Wilma did have some shared life, but Wilma could try to argue that her case is like Fuller v Fuller in that this shared life was in a different capacity of nursemaid/patient and not husband/wife. However, this case is distinguishable from Fuller, in that in Fuller the wife's boyfriend lived in the same household and it was clearly recognised by all parties that the marriage was at an end. Unfortunately for Wilma, no third party was present in the household apart from Pebbles, and Fred did not realise that Wilma no longer cared for him as a spouse.

In addition to living apart, the petitioner must show that at least one of the parties recognised that the marriage was at an end, even though this does not need to be communicated: Santos v Santos (1972). Clearly this could not have existed until Fred returned home from the hospital, but Wilma may have difficulty establishing this if Fred contests the petition. She did not inform anyone of that conclusion, although, when she told Barney of her unwillingness to leave Fred, she may have communicated the conclusion that the marriage was at an end.

To petition under s l(2)(d), Wilma needs to show two years living apart, and that the respondent consents to the granting of the decree. Given Fred's attitude, it is unlikely that Wilma will be able to provide the court with Fred's positive consent to the granting of the divorce.

Therefore, the only other option open to Wilma would seem to be the fact of five years separation in s l(2)(e). As discussed earlier, there needs to be the fact of five years living apart, coupled with Wilma's recognition that the marriage was at an end. This necessitates the finding that Fred and Wilma were living apart whilst still in the same house, something that is not without difficulty. If this were to fail, Wilma would need to wait for five years after leaving Fred before she petitioned.

Regardless of when her petition based on s l(2)(e) is presented, Fred may oppose the granting of the decree if the dissolution of the marriage would cause him grave financial or other hardship, and in all the circumstances it would be unjust to dissolve the marriage: MCA s 5(1).

Fred's argument would be based on the loss of Wilma's care and the fact that he misses Pebbles. The court is required to look at all of the circumstances of the case, including the conduct of the parties, their interests and the interests of any children or other persons: s 5(2). It is unlikely that the court would dismiss the petition as I Ted's hardship arises from the breakdown of the relationship with Wilma, not the granting of a divorce: Parghi v. Parghi (1973). Even if there is no divorce, he will stillnot have Wilma's care, as she is now having a relationship with Barney. Since both Fred and Wilma seem to be young, and Wilma is involved in another relationship, the court might consider that justice demands the divorce be granted togive Wilma the freedom to start a new life, as in Parker v Parker (1972). There is noevidence that Fred would suffer grave financial hardship on divorce, and therefore he is unlikely to succeed in his use of s 5.

 

 

LECTURE 4

THE LEGAL CONSEQUENCES OF DEATH IN THE FAMILY

1. A presumption of death

2. Devolution of Property by Will

3. Devolution of Property without Will

4. Inheritance Tax

A presumption of death

The general common law presumption of death which may be raised by seven years' absence³ is specifically applied to these proceedings by s 19(3), which provides:

*... the fact that for a period of seven years or more the other party to the marriage has been continually absent from the petitioner and the petitioner has no reason to believe that the other party has been living within that time shall be evidence that the other part until the contrary is proved.'

 

Devolution of Property by Will (Testate Succession)

KEY DEFINITION

Will.A document by which a person (testator) appoints executors to administer his estate after his death, and directs the manner in which it is to be distributed to the beneficiaries he specifies.

Testate.Having left, at one’s death, a legally valid will.

Succession.The law and procedures under which beneficiaries entitled to property under the testator's will or on intestacy.

 

There are several types of wills.

KEY DEFINITION

Do you need to tell anyone about your will? What happens if you get married or divorced? What are executors and who is allowed to be one?

Devolution of Property without Will (Intestate Succession)

The rules of intestate succession laid down in the Administration of Estates Act 1925.

KEY DEFINITION Intestate –to die without having made a will.

The rights of the surviving spouse or civil partner

KEY DEFINITION Issue. The children or other lineal descendants of a person. Residue. Residuary Estate. The property after payment of debts, funeral expenses. Bona vacantia.Property with no owner and which passes to the Crown. Chattels –movable property.

Rights in the Matrimonial Home

KEY DEFINITION Joint tenancy.Ownership of land by two or more persons who have identical interests in the whole of the land. A joint tenancy can only arise when four conditions are satisfied: 1) Each joint tenant must be entitled to possession at the same time; 2) The interest each has in the land must be identical; 3) The same title for a land: to A and B as joint tenants; 4) Interests must subsist for the same time. Tenancy in common.Equitable ownership of land by two or more persons in equal or unequal shares. Each co-owner may sell or dispose of his share by will. A share does not pass automatically on the death of a co-owner.

See table: Intestate Succession

 

Seminar 4

REVISION CHECKLIST

What you need to know:

1. A presumption of death

2. Devolution of Property by Will

3. Devolution of Property without Will

4. Inheritance Tax

 

Read:

- Wills Act 1837,

- Inheritance (Provision for Family and Dependants) Act 1975

Be ready to discuss.

 

Question 1

James has now told Victoria that he feels trapped and wants to leave her and the children to sail around the world on his own. He wants to sell the… Advise Victoria on her property rights, if any, in the house.

Answer plan

Again, this couple will not be using the wide powers the court has on divorce. Instead entitlement must be determined by reference to strict property law rules:

• Legal and beneficial entitlement must be examined;

• is there any evidence of an implied, resulting or constructive trust?

• mention s 37;

• consider what protection, if any, is provided by LRA 1925 s 70(l)(g);

• possible application for sale under s 14 of the Trusts of Land and Appointment of Trustees Act 1996.

Answer

Victoria is seeking advice as to her property rights, if any, in the home she shared with James. The couple have never married, and so the court lacks the wide powers available to it under the Matrimonial Causes Act 1973 to make fair and just resolution of financial matters. The law, therefore, treats cohabitees in an entirely different way when their relationship ends, and consequently Victoria's entitlement must be determined according to the strict rules of property law.

Victoria will need to apply to the court for a declaration of her entitlement in the house, and may need to take steps to protect any interest in case James mortgages the property or otherwise deals with it.

The starting point for any discussion of property law rights is to examine the conveyance to see whether it contains any declaration as to legal or beneficial entitlement: any such declaration is conclusive in the absence of fraud or mistake (Goodman v. Gallant (1986)). The property in the present case is registered with James as the sole legal owner, and there is no declaration of any beneficial interest for Victoria in the conveyance.

The facts do not disclose that there has been any subsequent express declaration of trust in Victoria's favour. Equitable interests must be vested and evidenced in writing: Law of Property (Miscellaneous Provisions) Act 1989 s 2; Law of Property Act 1925 s 53(l)(b). There is no such declaration, and therefore any interest that Victoria may have must be by way of implied, resulting or constructive trust, which do not require the usual formalities.

To establish such a trust, it is necessary to show that whilst one party is the legal owner, there was a common intention that they should both have a share in the property, and in addition that the party claiming the beneficial entitlement acted to their detriment because of this common intention.

This is easiest to establish where a party can show that he/she has made direct contributions to the acquisition of the home, either by paying part of a deposit, or by paying the mortgage. Then, in the absence of evidence to the contrary, it is presumed that they intended to share the property in proportion to their contributions: Cowcher v Cowcher (1972). Victoria did not, however, pay the deposit; this was paid by James in buying the plot of land. Neither did Victoria pay any mortgage instalments or buy any raw materials. All the materials were paid for by James, and Victoria did not have any paid employment.

If there is no evidence of direct contribution, then Victoria will need to establish a common intention in another way. It may be that there is clear evidence of a common intention, for example, a conversation, a letter, some kind of assurance from James that this would be their house, for example, Eves v Eves (1975). If not, then Victoria will need to prove a common intention by reference to her indirect contributions. It is harder to establish common intention in this way: Lloyds Bank v Rosset (1991). Victoria has not made any financial contribution to the maintenance of the family which has thereby enabled James to pay the mortgage, as in Grant v Edwards (1986). However, by her efforts she has physically helped him to build their house, and transform a building site into a family home.

The courts have been very strict in insisting that the efforts and contribution to the improvement of the property must be substantial: Pettitt v Pettitt (1970). Consequently, the use of Victoria's legacy to buy curtains and furnishings and to redecorate the nursery is not sufficient: Gissing v Gissing (1971). The amount involved, £5,000, is quite a lot of money, but this is the sort of sum that is easily spent on furnishing living accommodation, without thereby acquiring an interest (LloydsBank v Rosset (1991)). However, Victoria's physical efforts contributed substantially, as she has helped James at weekends and evenings, and worked by herself on the property during the day. Together they have transformed the house (as in Cooke v Head (1972); Eves v Eves (1975)), where the women cohabitees acquired interests.

It seems right that Victoria's substantial efforts can be taken as evidence of a common intention to share the property. It is unlikely that she would make such a superhumaneffort for no reward, nor that James would expect her to. Her contributionsas a mother and a lover do not acquire any interest (Burns v Burnsi W84)), but her contributions to the building evidence a common intention as well as actions to her detriment. The extent of Victoria's share will need to be determined by the courts, and it would seem that she has made as much, if not more, physical contributions than can be equated as money's worth than James. He, however, did make the original purchase of the land and buy the materials.

Applying the principle in Midland Bank v Cooke (1995) the whole of the history of the relationship and the parties conduct and contributions can be looked at to determinethe size of shares intended. Thus, once Victoria establishes an interest undera trust according to the strict rules in Gissing v Gissing (1971) and Lloyds v Rosset (1991), she could argue that there was an intention that they should have equal shares. Victoria could also use Matrimonial Property and Proceedings Act s 37 to argue that she has acquired or enlarged an interest because of her substantial contributions in money or money's worth.

If Victoria does have an interest in the home, then she must consider how this can be protected should James try to sell or mortgage the property. Since Victoria is in occupation of the home, which does not necessarily have to be continuous or exclusive (Kingsnorth Finance v Tizard (1986)), she has an overriding interest (Land Registration Act 1925 s 70(1 )(g)). This means that even if her interest is unregistered, she will be protected against sale or mortgage to a third party, unless their enquiries could not disclose her interest: Williams & Glyn's Bank v Boland (1981). The only time she may find her interest overreached is if James sellsor mortgages to a third party and the proceeds are paid to James and another trustee for sale that he has appointed: City of London Building Society v Flegg (1987).

It is probably wisest for Victoria to register her interest in order to be protected, and if she becomes a co-trustee then she can refuse her consent to any sale. This wouldforce James to apply to the court under s 14 of the Trusts of Land and Appointment of Trustees Act 1996 for an order for sale of the house. In determining the application, the court can make such order as it sees fit. This is not a powerto alter the actual property rights of the parties, but to determine whether the sale should be permitted to proceed or be postponed. In the case of a matrimonial or family home, the court will look at the purpose for which the house was provided: Re Evers Trust (1980). In the present case, the house was built as a family home, and, since the children of the family are so young, it is still needed as a home and sale will not be ordered.

If, however, Victoria is not a co-trustee then she cannot block the sale as of right, and so she will need to ask the court for an injunction prohibiting sale: Waller v Waller (1967). This would then enable a second trustee to be appointed who could safeguard her interests.

Thus it can be seen that Victoria is likely to have acquired an interest in the home, but she needs to be vigilant in order to protect herself against James' possible future moves.

 

LECTURE 5

PARENTS AND CHILDREN

2. The Human Fertilisation and Embryology Act 1990 3. Parental responsibility 1. Who are the parents of the child?

KEY DEFINITION

Who is the father of the child?The father is the genetic father of the child. But there is much more to the legal position than that. It is…

Presumptions of paternity

In thefollowing cases MAN is presumed to be the father of the child concerned:

- if MAN is married to the mother of the child at the time of the birth (the ‘pater est’ presumption);

- if MAN is registered as the father of the child on the child's birth certificate;

- if circumstances are proved which strongly indicate that MAN is the father of the child (e.g. he was known to spend the night with the mother at the time of conception).

In the absence of one of the presumptions, a man can only prove he is the father of a child by applying to the court for biological tests to be carried out. Nowadays these are based on DNA. The court will order tests if that is in the best interests of the child In recent cases they have normally ordered tests, arguing that it is important for a child to know who his or her genetic parents are (Re H and A (2002)).

The Human Fertilisation and Embryology Act 1990

Reading: Leeds Teaching Hospital Trust v. A [2003] 1 FCR 599 Concerning: who the parents are of a child after a mix-up in an…

Parental responsibility

- the right to make decisions about the child's education; - the right to 'possession' of the child - it is an offence to remove a child… - the right to choose a child's religion;

PROBLEM AREA

Who gets parental responsibility? All mothers get parental responsibility automatically. Not all fathers do.… - all fathers married to the mother of the child;

Seminar 5

REVISION CHECKLIST

What you need to know:

- The difference between being a parent and having parental responsibility

- The definition of mother

- The definition of father

- The law regarding parenthood in cases of assisted reproduction

- The law on surrogacy

- The meaning of parental responsibility

- The law on who gets parental responsibility.

ESSAY QUESTION

Who gets parental responsibility for a child? Should all parents automatically be given parental responsibility?

Answer guidelines

- What is parental responsibility? It is far from clear what parental responsibility is and yet that is key if we are to decide who should get it. … - Is the law discriminatory? Note that the law draws a distinction between men… - Should not the person who knows the child best make decisions for the child? That I be the resident parent (the…

Question 1

Last week Fred told Rose that John would be at a real disadvantage if they (Fred and Rose) did not get married and make him legitimate. During the… Rose has no intention of claiming anything from Fred. She has, however,… Advise Rose.

Suggested answer

First, Rose’s mind can put at rest to some extend by telling her that as the mother of an illegitimate child all parental responsibility currently… Before Fred can acquire any legal status in relation to John, the relationship… Once fired has proved that he is John's father then he can apply to the court for a number of orders. However, it…

General Test

MARRIAGE AND CIVIL PARTNERSHIP

    When will a breach of the formality…  

PROPERTY CONSEQUENCES OF RELATIONSHIPS

    Under what legislation can an…  

DIVORCE AND DISSOLUTION

    Which of the following is not a fact…  

THE LEGAL CONSEQUENCES OF DEATH IN THE FAMILY

    Where a deceased spouse leaves a…  

PARENTS AND CHILDREN

    What is a surrogacy arrangement? …