KEY DEFINITION - раздел Образование, MARRIAGE AND CIVIL PARTNERSHIP Separationrequires The Parties To Live In Separate ...
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 roof. The court will consider whether or not they were sharing communal living (e.g. were they eating together; engaging in household tasks together). As well as living separately at least one of the parties must have reached the conclusion that the marriage is at an end {Santos v. Santos (1972)).
Reading: As far as separation is concerned, a husband and wife are treated as living apart unless they are living with each other in the same household. However, it is possible for there to be factual separation where the parties are living under the same roof. What matters is that they are not living in the same household.
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 Mounter v. Mouncer [1972], on the other hand, a decree was refused because, although they slept in separate bedrooms, the spouses were not living in separate households. They ate their meals with the children and they shared household chores.
Fact 5. Five-year separation
Matrimonial Causes Act 1973, section 1(2)(e)
(...) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Reading: In the very recent case of Charman v. Charman, [2005] - which the London newspapers referred to as involving “the insurance multi-millionaire John Charman, one of the richest men in the City” - the English Court of Appeal directed that evidence could be procured overseas concerning an offshore trust that had been created during the marriage from the husband’s insurance business.
The couple, who have two children, were married in 1976 when neither had significant resources. Mr Charman went on to have a successful career and build up considerable wealth in the insurance market in the City of London. Mr Charman had set up the Dragon Trust in Bermuda in 1987 which had assets worth Ј68m. He set up Axis, a global insurance and reinsurance company based in Bermuda. But in early 2003, he moved permanently to Bermuda and separated from his wife who remained in England.
She issued a petition for divorce in June 2004, which included an application for financial settlement, known as ancillary relief.
There was a Ј67 million difference between the husband’s statement of assets and the wife’s. The discrepancy represented the assets of the trust, which, the wife claimed, would be made available to the husband if he so requested and should therefore be included as part of the ancillary relief claim.
Mr Charman wanted the Dragon Trust assets left out of account because they were for the long-term benefit of members of his family and he did not have control of those assets.
The court adopted a broad interpretation of the nature of the “resources” that a divorce court must take into account in determining the financial aspects of a divorce. In other cases the courts had held that the test was whether or not the spouse had “real or effective control” over the trust. However, the Charman court held that that test was too restrictive, since trustees may have the control but may allow the settler or other beneficiaries to have access to the income or capital of the trust. Accordingly, Lord Justice Wilson stated that the test should be whether it is likely that a party has access to trust assets.
England and Wales... LECTURE... MARRIAGE AND CIVIL PARTNERSHIP Introduction...
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KEY DEFINITION
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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
In this problem question you will need to start by ascertaining who has the legal title le property, that is, who the registered owner is. In this case, it is Alan. There is no express trust and so
Question 1
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
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.
First, Rose’s mind can put at rest to some extend by telling her that as t
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