Divorce Unit 23 Preview n n n Definition

Divorce Unit 23

Preview n n n Definition Grounds for divorce Stages in obtaining a divorce Court orders Types of divorce Cases

Divorce n n 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

Grounds for divorce n n n 1. Adultery 2. Unreasonable bahaviour 3. Two years separation 4. Desertion 5. Five years separation

Adultery n n Sexual intercourse by consent between a married person and someone of the opposite sex who is not that person’s spouse The PETITIONER must satisfy (= convince) the court that the RESPONDENT has committed adultery and that it is therefore intolerable to live with them

Adultery n Cohabitation of over 6 months after becoming aware of adultery ‘destroys’ the fact

UNREASONABLE BEHAVIOUR n 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 them

Unreasonable behaviour n 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)

Two years separation and consent n 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.

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

Five years separation n 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.

Stages in obtaining a divorce n 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 the DECREE ABSOLUTE, which is the final stage in the divorce.

The Family Law Act 1996 n n n Provides protection for married persons, cohabitants, and other categories of persons against domestic violence and harassment; regulates rights of occupation of property If domestic violence or harassment has occurred or is likely to occur, such persons can apply to the court for a non-molestation order Occupation order – governs who is allowed to enter and remain in the property or, conversely, who must keep away from it

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

Contact order n 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

Residence order n Settles arrangements about where the child is to live

Prohibited steps order n 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)

Specific issues order n Determines specific issues that have arisen regarding care of the child (e. g. medical treatment)

STATEMENT OF ARRANGEMENTS n 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

Factors taken into account n n n 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

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

Property adjustment order n 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.

Periodical payments order n An order that one party must pay a regular sum of money to the other party

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

Lump sum order n An order for the payment of a specified sum of money

Consent order n n n 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

Factors taken into account n n n n 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

The role of the lawyer n n n 1. Demonstrating empathy with the client’s difficult personal circumstances, without losing legal objectivity 2. The need for mediation and negotiation between the parties; it is better that issues are settled by mutual agreement rather than by court proceedings 3. Guidelines rather than strict rules

Fault divorce n Until 1969, divorce would be granted only to the innocent party (petitioner) who could prove that the other party (respondent) committed a matrimonial offence

“Uncontested” divorce n n Two parties are able to come to an agreement about the property, children and support issues When the parties can agree and present the court with a fair and equitalbe agreement, approval of the divorce is almost guaranteed

No-fault divorce n n After 1969 Pioneered in the US by the State of California with the passage of the Family Law Act of 1969 The Act signed by Governor R. Reagan on September 4, 1969 and became valid on January 1, 1970 Abolished the old common law for divorce

Grounds for no-fault divorce n n n Less specific reasons, such as incompatibility or irreconcilable differences The court decides how to divide communal property and who gets custody of the children If one of the spouses is financially dependent on the other, the court will usually order the other one to pay alimony (Am. E) or maintenance (Br. E)

Divorce today n n n In the UK, 40 % of marriages end in divorce In the USA almost 50 % Croatia – current statistics show that every fifth marriages ends in divorce

Adultery Cleary v Cleary 1974 n The wife left the husband for another man, but then returned to him for a few weeks before leaving again, this time to stay with her mother. The husband petitioned for divorce.

Adultery Cleary v Cleary 1974 n Held: A divorce would be granted to the husband as he had established both her adultery and the fact that he found it intolerable to live with her

Adultery Cleary v Cleary 1974 n Commentary: The significance of this case lies in the decision that the intolerability of living with the respondent need not be related to the respondent’s adultery. The petitioner can obtain a divorce if the respondent has committed adultery, regardless of whether the adultery was the cause of the marriage breaking down. There is no need to show that a reasonable person in the petitioner’s situation would have found it intolerable to live with the respondent: all that is needed is a statement that the petitioner finds it intolerable

Unreasonable behaviour Livingstone-Stallard v Livingstone. Stallard, 1974 n The wife petitioned for divorce on the basis that she could not reasonably be expected to live with her husband, who had constantly criticised her, telling her that wives had to be subservient to their husbands in order to be happy

Unreasonable behaviour Livingstone-Stallard v Livingstone. Stallard, 1974 n Held: The decree would be granted. The correct approach was to ask whether any right-thinking person would conclude that the respondent had behaved in such a way that the petitioner could not be reasonably expected to live with them, taking into account the circumstances and the personalities of the parties

Unreasonable behaviour Livingstone-Stallard v Livingstone-Stallard, 1974 n Significant point: the emphasis on the objective element in the test applied by the courts: a decree will not automatically be granted simply because the petitioner believes that the respondent has behaved in a way that is unreasonable, but only if he or she can convince the court that it is objectively unreasonable to expect future cohabitation

Desertion Saunders v Saunders 1965 n The wife left the husband after almost 5 years of marriage, alleging desertion on the basis of his conduct towards her (expecting her to work long hours in their shop, even when she was heavily pregnant, failing to give her support when there was trouble between her and her parents-in-law, opening her mail against her wishes, and displaying a lack of consideration for her)

Desertion Saunders v Saunders 1965 n Held: The conduct complained of was capable of amounting to constructive desertion. The test to be applied was whether the other spouse “had been guilty of such grave misconduct that the only sensible inference is that he knew that the complainant would in all probability withdraw permanently from cohabitation with him, if she acted like any reasonable person in her position”

Constructive desertion n when one partner causes the other partner to leave the marital home through misconduct. If one partner is forced to leave the home because the other’s misconduct, he or she has been constructively deserted. In this regime, the conduct of one spouse makes it impossible for the other to stay in the marriage.

Constructive desertion n Physical or mental cruelty to the spouse can constitute constructive desertion. Moreover, refusing sexual intercourse can often be held to be constructive desertion. In some cases, requiring a spouse to live with intrusive or abusive in-laws was held to be constructive desertion, as was refusing to relocate to a new town or state.

Desertion Saunders v Saunders 1965 n Commentary: it is not necessarily the spouse who leaves the matrimonial home who is in desertion. The concept of “constructive desertion” dates back to 19 th c. , but the need for such concept is reduced since the grounds for divorce have been expanded. Today fewer than 1% of petitions allege desertion

Separation Fuller v Fuller, 1973 n The husband wife lived together until 1964, when the wife moved in with another man. In 1968 the husband suffered a coronary thrombosis and was told by his doctor that he should not live on his own. Upon his discharge from hospital he went to live as a lodger in the house where his wife was living, paying a weekly sum. He ate some meals with the family, and the wife did the washing for the whole household. In 1972 the wife petitioned for divorce on the basis of five years’ separation. The petition was dismissed on the grounds that they were not living apart.

Separation Fuller v Fuller, 1973 n Held: The appeal would be allowed. The parties were not living with each other in the same household within the meaning of the statute, as they were not living together as husband wife

Separation Fuller v Fuller, 1973 n Commentary: The case illustrates that a husband wife may be living apart for the purposes of the statute even if they are living under the same roof. While the wife was performing certain household tasks, she was not performing them for the husband as a husband, but as a lodger

Legal terms n n n Contracting party Ugovorna stranka; ugovaratelj Breach of contract Kršenje ugovora, povreda ugovora Compensation Naknada, odšteta

Legal terms n n n Punitive Kazneni Marriage breakdown Prekid bračne veze, poremećaj bračnih odnosa Life sentence Doživotni zatvor

Legal terms n n n Proceedings Sudski postupak, parnica Petitioner Podnositelj zahtjeva (za razvod) Respondent Tuženi supružnik (kod razvoda)

Legal terms n n n Validity Pravomoćnost, pravovaljanost Prayer Tužbeni zahtjev (kod razvoda braka) Custody Skrbništvo nad djecom

Legal terms n n n Suit Zahtjev za rastavu braka Pending suit Parnica u tijeku Ancillary relief Financijska pomoć (kod razvoda)

Legal terms n n n Order Nalog, sudsko rješenje Provision Zbrinjavanje Lump sum Paušalna svota

Legal terms n n Property adjustment order Sudski nalog o podjeli imovine Prohibited steps order Nalog o postupcima koji su zabranjeni

Legal terms n n n Petition Tužbeni zahtjev Registry Prijavni ured Registrar Voditelj registra; referent

Initial letter from petitioner’s solicitor to respondent’s solicitor n n n n TURNER JONES SMITH & CO 7 Old Hall Street Oxford OX 1 7 PB telephone: +44(0)1865 email: info@tjs&co. com Your reference Our reference NLM/GRE. 1 -1 Date 17 April 20 Messers Hatton, Moor & Lesley 35 Franklin Road Reading RG 9 DZ FAO Frank Barnstaple

n Dear Sirs n Our client: Mary Greaves Your client: Anthony Greaves n We have been instructed. . . n

n n We have been instructed by Mrs Greaves in relation to matrimonial matters and understand that you are in receipt of instructions to act for Mr Greaves. Kindly confirm that this is the case

n Our client has come to the view that the marriage has irretrievably broken down. She wishes to petition for divorce on the grounds of your client’s adultery with Michelle Lampton. We understand that your client is prepared to admit to this for the purposes of the divorce petition. Kindly confirm.

n We understand that it is agreed between our respective clients that the children will continue to live with our client at 35 Rignton Crescent after the divorce, and that your client will have regular contact with them, perhaps every Saturday. This should initially take place at 35 Rington Crescent, and our client does not wish the children to be introduced to Ms Lampton until they feel more settled with the new arrangements.

n With regard to financial settlement, please provide full disclosure of your client’s income, outgoings, and assets. We have asked our client to collate her financial documentation and will revert to you with this shortly.

n We look forward to hearing from you. n Yours faithfully n Turner, Jones, Smith & Co.

Reply from respondent’s solicitor n n n Hatton, Moor & Lesley 35 Franklin Road Reading RG 1 9 DZ telephone: +44(0)118 673770 fax: +44(0)118 673771 email: enq@hm&les. co. uk your ref. NLM/GRE. 1 -1 our ref. FWB/GRE. 2 -1 Messers Turner, Jones, Smith & Co 7 Old Hall Street Oxford OX 7 PB

n WITHOUT PREJUDICE n Dear Sirs, n n Our client: Anthony Greaves Your client: Mary Greaves

n n Thank you for your letter of 17 April 20 -. We confirm we are in receipt of instructions to act for Mr Greaves. With regard to the specific points you raise:

n n n 1 Our client is prepared to admit adultery provided that your client agrees to the divorce costs being split 50/50. 2 Contact proposals: these are agreed by our client. 3 Financial disclosure. Our client’s financial documentation is enclosed. Kindly acknowledge receipt. We look forward to receiving reciprocal disclosure in due course.

n n n Yours faithfully, Hatton, Moor & Lesley Enc. Financial documents

n In most cases, if the court accepts the allegations made by the petitioner in the divorce petition and accordingly grants a divorce, the respondent will be obliged to pay the legal costs incurred by the petitioner in applying for the divorce. These include the solicitor’s fees as well as the court fees

WITHOUT PREJUDICE n It ensures that, in the event that Mrs Greaves does not agree to the 50/50 division of the divorce costs, Mrs Greaves’s solicitors wil not be able to present this letter to the court as circumstantial evidence of his adultery