No irretrievable breakdown--------One of the 5 facts proved--------No divorce possible
No irretrievable breakdown--------One of the 5 facts proved--------No divorce possible - раздел Образование, MARRIAGE AND CIVIL PARTNERSHIP ...
Buffery v. Buffery [1988] 2 FLR 365
Concerning: the ground for divorce
Facts
It was found by the judge that the marriage had irretrievably broken down. The couple had nothing in common, never went out and were unable to communicate with each other. However, none of the five facts could be made out.
Legal principle
A divorce could not be granted. Even if the marriage had broken down irretrievably, a divorce could only be granted where one of the five facts was made out. The couple would have to separate for two years in order to get a divorce.
Fact 1. Adultery
Matrimonial Causes Act 1973, section 1(2)(a)
(...) that the respondent has committed adultery and the petitionerfinds it intolerable to live with the respondent.
KEY DEFINITION
Adulteryis voluntary sexual intercourse between a man and a woman, one or both of whom is married. Sexual intimacy short of sexual intercourse will not amount to adultery.
In order to rely on the adultery fact, it is necessary to show two things:
- the respondent has committed adultery
- the petitioner finds it intolerable to live with the respondent.
Reading:
Cleary v. Cleary [1974] 1 WLR 73
Concerning: the adultery fact
Facts
The wife committed adultery. The husband forgave her and they were reconciled. However, this was short lived and the wife left the husband again. The husband then petitioned for divorce.
Legal principle
The Court of Appeal accepted that there was adultery and that following the wife's conduct during the unsuccessful attempt at reconciliation the husband found it intolerable to live with her. A divorce was available, therefore, on the adultery fact.
Fact 2. Behavior
The 'behaviour' fact is found in section 1(2)(b), Matrimonial Causes Act 1973.
Matrimonial Causes Act 1973, section 1(2)(b)
(...) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
Reading: Cases:
O'Neill v. O'Neill (1975)
Husband was DIY fanatic who took eight months to replace toilet door: BEHAVIOUR FACT DEMONSTRATED
Pheasant v. Pheasant (1972)
Wife never engaged in spontaneous displays of affection:
BEHAVIOUR FACT NOT DEMONSTRATED
Lines v. Lines (1963)
Husband required wife to tickle his feet for hours every evening:
BEHAVIOUR FACT DEMONSTRATED
1. In Birch v. Birch [1992], the wife petitioned for divorce on the basis of her husband's unreasonable behavior. She claimed that his attitude to her was dogmatic, nationalistic and dictatorial. She said that she was sensitive and had taken a passive role during their 20-year marriage, putting aside her own interests until the children had grown up. The county court judge dismissed her petition, but the Court of Appeal allowed her appeal and granted a decree because the judge had used an objective test when the correct test was subjective.
2. In O'Neill v. O'Neill the petitioner stated that her husband had a withdrawn personality, had doubted the paternity of their children, and had spent two years 'improving' the flat, which included mixing cement on the living-room floor and leaving the lavatory door off for about eight months.
3. Some behavior, however, may be too trivial and a decree will be refused, as it was in Buffery v. Buffery above, where the wife alleged that her husband was insensitive, never took her out, and after their children had left home they had nothing to talk about and nothing in common. Her petition was dismissed, as her husband's behavior was insufficient to satisfy the behaviour ground.
PROBLEM AREA
Blameless behaviour
A divorce may therefore be granted even though a respondent is not responsible for his or her own 'behavior'. The issue is raised particularly where the behaviour is caused by a medical condition. On the one hand, it might be thought harsh on a spouse to be divorced based on behaviour over which they had no control On the other, the courts are aware that caring for an ill spouse can be an enormous burden. In Katzv. /fafr (1972) a wife was able to get a divorce from a husband who suffered from manic depression, whose behaviour was concerning and greatly disturbed the wife. In Thurlow v. Thurlow [1976], the wife was an epileptic who suffered from a severe neurological disorder. She was bed-ridden and bad-tempered, threw objects at her husband and wandered the streets causing him distress. He worked full-time and found it difficult to care for her, and the stress affected his health. Judge granted a decree.
Fact 3. Desertion
Matrimonial Causes Act 1973, section 1(2)(c)
(...) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.
Fact 4. Two-year separation
Matrimonial Causes Act 1973, section 1(2)(d)
(...) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.. .and the respondent consents to a decree being granted.
Marriage. The right to marry
KEY DEFINITION
MARRIAGE is an agreement by which a man and a woman enter into certain legal relationship with each other and which creates and imposes mutual rights and
Gender Recognition Act 2004, section 2(1)
1 ... the [Gender Recognition] Panel must grant the application if satisfied that the applicant -
(a) has or has had gender dysphoria,
(b
Civil Partnership
Reading:In Fitzpatrick v. Sterling Housing Association Ltd [1999] 2 FLR 1027, the question was whether Mr Fitzpatrick who had lived with his male partner in a stable
Answer guidelines
1. The differences are of no practical significance. For example, where there is adultery, the unreasonable behaviour fact can be relied upon.
2. The differences are symbolically impor
Grounds on which a Marriage may be Voidable
Section 12 MCA 1973 provides that a marriage is voidable where:
(a) the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b)
PROBLEM AREA
Inability to consummate after marriage
A popular scenario in a problem question is where one of the parties to the marriage becomes physically unable to consummate the m
VOIDABLE MARRIAGE
-The marriage can only be set aside if there is a court order. Without a court order annulling the marriage, it is a valid one
- Only the parties to the marriage can
SEMINAR 1
REVISION CHECKLIST
What you need to know:
1. The grounds on which a marriage or civil pa
Property Rights of Married Couples
There isno concept of a presumption of joint ownership of property in English law. However, it is possible to acquire a right of ownership by claiming an interest under a
Cohabitation contracts
Reading:
Sutton v. Mischon de Reya [2004] 1 FLR 837
Concerning: enforceability of cohabitation contracts
Facts
Mr Sutton and Mr Sta
Resulting Trust
KEY DEFINITION
A resulting trust (on the basis of law, на основании закона)is presumed to arise when A contributes to the purchase price of a piece of property which is
Constructive Trust
KEY DEFINITION
In order to establish a constructive trust, it is necessary to show:
1. A common intention to share ownership. This is proved by evidence of an express
Proprietary Estoppel
KEY DEFINITION
For in X to be able to establish a proprietary estoppelit must be shown that:
- the owner of the property assured or promised X an interest in the prope
Answer guidelines
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The marriage between Michael and Sarah has encountered difficulties, and the couple have decided to part amicably. They are both keen to go their separate ways with no financial responsibilities to
KEY DEFINITION
Separationrequires the parties to live in separate households. Normally this will be in separate houses, but it is possible for them to live separate lives under the same
Bars to divorce
1) Section 3(1), MCA states that it is not possible to petition for a divorce until you have been married for one year.
2) Section 5, MCA provides a bar but this can only
Effects of Divorce
- free to remarry
-financial provision and property adjustment
-an effect on a will (termination)
Recognition of a Foreign Divorce
Reading: The English courts have discretion to refuse recognition of a foreign divorce, whether or not it was obtained in proceedings. Thus, for example, the court may refuse to re
Question 1
Fred and Wilma married 10 years ago, and were initially very happy. However Fred started to go out with his friends every Saturday night, living Wilma at home with their daughter, Pebbles. Fred fre
KEY DEFINITION
Joint will. A single document executed by two or more persons as the will of all of them.
It is prohibited to left joint will in Ukraine.
Mutual
Question 1
Victoria and James met 15 years ago and began to cohabit. They have four children, aged 2, 4, 6 and 8. Shortly after they met, James bought a plot of land for £5,000 and registered the proper
PARENTS AND CHILDREN
1. Who are the parents of the child?
2. The Human Fertilisation and Embryology Act 1990
3. Parental responsibility
1. Who are the parents of the child?
KEY DEFINITION
Under a surrogacy arrangement a couple ('the commissioning couple') ask a woman ('the surrogate mother') to carry a child for them. The agreement is that shortly after bir
Parental responsibility
Children Act 1989, section 3(1)
'In this Act "parental responsibility" means all the rights, duties, powers, responsibilities and authori
PROBLEM AREA
Section 2(7) of the Children Act 1989 appears to suggest that a parent with parental responsibility can act alone and need not consult with anyone else. However, the courts have not interpreted the
Answer guidelines
You will want to discuss the following issues:
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Question 1
Last year, Rose (a single woman) had a brief affair with Fred, a wealthy married man 20 years older than herself. After Rose had ended the relationship, she discovered that she was pregnant. Fred o
Suggested answer
Here we are asked to advise Rose, the mother of 6-month-old John, born as the result of a brief affair with Fred.
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