Family law: Divorce and Dissolution

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What are the grounds for divorce/dissolution?
1. The marriage has irretrievably broken down (S1 MCA 1973). 2. That the civil partnership has irretrievably broken down (S44(1) CPA 2004
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What are the factors for proving that the marriage has broken down?
Adultery, unreasonable behaviour, desertion, separation two years/five years
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What are the factors proving that the civil partnership has broken down?
Unreasonable behaviour, desertion, separation two/five years
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Why are the requirements different for the two statutes?
Because sexual conduct is not recognised by the law in same-sex relationships
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What is the case defining adultery?
Dennis v Dennis: 'adultery can be defined as consensual sexual intercourse between a married person and a person of opposite sex during the subsistence of the marriage'
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What are the requirements for bringing an adultery?
1. Proving that the respondent committed adultery. 2. That the applicant finds it intolerable to live with the respondent.
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What is the other factor with links to adultery?
Intolerabillity
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Does there NEED to be a link?
No: Clearly v Clearly and Hutton 1974
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What does Clearly v Clearly and Hutton 1974 concern
Husband found it intolerable to live with wife after adultery
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What is the definition of the factor unreasonable behaviour?
That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
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What can unreasonable behaviour be in the form of?
Violence, verbal abuse, unreasonable demands, sexual unfaithfulness falling short of adultery, domestic violence
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Can it be a serious of incidents?
Can either be a one off incident (has to be serious) or a series of events
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What do the courts consider within this defence?
The character of the parties and their personalities
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What case demonstrates the test for unreasonable behaviour?
Livingstone-Stallard v Livingstone-Stallard (a normal reasonable person)
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What case relates to sensitive nature?
Birch v Birch: petitioner was more affected due to her sensitive nature
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What case relates to lack of affection?
Pheasant v Pheasant: lack of affection does not constitute unreasonable behaviour
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What is a case relating to drifting apart?
Buffery v Buffery: has to be more than drifting apart
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What do the courts say about reasonable behaviour?
Dunn J recognised in Livingstone-Stallard that a reasonable person would think it is unreasonable to be rude/critical/domineering
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Who needs to be at fault?
The respondent does not have to be at fault, e.g.depression, illness
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What is a case relating to depression?
Katz v Katz
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What is a case relating to moodiness/minor assaults?
Richards v Richards
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What is a case concerning a bed-ridden wife?
Thurlow v Thurlow
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What are the issues on continued cohabitation?
The courts are less likely to rely on the behavioural ground, the longer that it has been since the last incident, however there is no time stamp
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What is the defence of desertion?
Desertion means that the respondent has deserted the petitioner for a continuous period of at least two years
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What elements are needed for desertion?
Intention to desert, and fact of separation
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What are the issues with living in the same house?
Separation can still occur when living in the same house, as long as they are not sharing the household e.g. eating together
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What is a case on sharing a house?
Le Brocq v Le brocq
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What are the issues on intention to desert?
The respondent must have the mental capacity
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What is two years separation with consent?
The parties have lived apart for at least 2 years with consent
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What are the elements?
Consent and separation for 2 years
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What is a case example relating to illness and sharing a household?
Fuller v Fuller
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What is living apart for five years?
No consent needed, just have to prove 5 years separation, it is not very popular
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What section applies to adultery?
S1(2)(A) MCA 1973
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What section applies to unreasonable behaviour?
S1(2)(B) MCA 1973
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What section applies to desertion?
S1(2)(C) MCA 1973
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What section applies to two years separation?
S1(2)(D) MCA 1973
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What section applies to five years separation?
S1(2)(E) MCA 1973
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What is judicial separation?
For those who have religious objections to divorce, it acknowledges that parties have separated but it does not end the marriage
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What are the bars to divorce?
One year rule, cannot petition one year after marriage - does not apply to judicial separation or annulment
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Why does the one year rule exist?
It upholds the dignity of marriage and avoids shotgun marriages-divorces
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What is some analysis on the bar to divorce involving the courts?
The courts hold a-lot of power within this area
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Other cards in this set

Card 2

Front

What are the factors for proving that the marriage has broken down?

Back

Adultery, unreasonable behaviour, desertion, separation two years/five years

Card 3

Front

What are the factors proving that the civil partnership has broken down?

Back

Preview of the front of card 3

Card 4

Front

Why are the requirements different for the two statutes?

Back

Preview of the front of card 4

Card 5

Front

What is the case defining adultery?

Back

Preview of the front of card 5
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