According to the Matrimonial Causes

According to what has been mentioned above; that the Matrimonial Causes Act requires one or more of five facts in order to prove that the marriage has irretrievably broken down, the first of the five facts requires petitioner to prove that the respondent has committed adultery and that the petitioner finds the respondent intolerable to live with [6] . [7] Again it is not necessary for the two parts to be linked; the respondent’s adultery does not need to be the reason why the petitioner finds it intolerable to live with them [8] . There are a number of definitions of the term adultery but all require consensual sexual intercourse between a man and a woman who are not married to each other where one of them is married to another person [9] . In this instance it is Jane who has committed the adultery, not Stephen. The necessity therefore of the petition to cite the respondent’s adultery precludes an application from Jane under this fact. She will not be able to cite her own adultery and Stephen’s refusal to petition means that this point cannot be pursued further.

The second of the five facts relates to the behaviour of the respondent and requires the petitioner to demonstrate that the respondent’s behaviour was such that they cannot be expected to live with them [10] . The requirement is again twofold. The respondent must have behaved unreasonably but this alone is not sufficient. The petitioner must show that this behaviour makes it unreasonable for them to live with the respondent; here the two parts are linked. The test for establishing whether the respondent’s behaviour is such that the petitioner cannot be expected to live with them is largely subjective, in that it is necessary for a reasonable person to find the behaviour has this effect [11] but the courts must take into account the personalities of both of the parties when making a decision [12] .

The specific facts in respect of this ground are clearly vital. The only behaviour of Stephen’s, it seems, which could be considered unreasonable is the fact that he employed a private detective to follow Jane. In deciding whether this is indeed unreasonable behaviour the court must look at the surrounding circumstances. It may be the case that the earlier discovery by Stephen that Rebecca was not his daughter could impact on his behaviour and may in the circumstance make it reasonable. However It could also be argued however that it would have been reasonable for him to have confronted Jane in this respect rather than have her followed. It does seem certain that, if Stephen’s behaviour is considered unreasonable, the effect it has had on Jane make it unlikely that she could be expected to remain living with him. It seems probable therefore that a petition in respect of Stephen’s behaviour may well be successful. Jane must be aware, on a practical note however, that the court must take into account any cohabitation between the parties of greater than six months after the last incidence of behaviour [13] . It appears that Jane was followed by the private detective a year ago and may therefore have continued to live with Stephen for a period of greater than these six months. This fact, if accurate, does not however preclude the possibility of a successful petition on this second fact [14] .

The third fact requires that the respondent has deserted the petitioner for a continuous period of two years prior to the petition [15] . [16] Again this fact would require Stephen to voluntarily leave in order for Jane to be able to petition on it something which, on the facts, seems highly unlikely. A similar problem arises in respect of the fourth fact. Here Jane can petition on the grounds that she and Stephen have lived apart for a continuous period of at least two years [17] ; Jane could leave Stephen. Unfortunately in order for this kind of petition to be successful Stephen must consent to the divorce. It is clearly impossible to state what Stephen’s position will be in two years but the current facts suggest that he may not consent. The final fact however provides Jane with an almost incontestable ability to obtain her divorce, but does require that the parties are separated for a continuous period of at least five years [18] . Stephen will only be able to object if the grant of the decree would cause him very serious financial hardship [19] .

It is clear therefore that unless Jane is able to successfully petition on Stephen’s unreasonable behaviour she may have to wait for five years before being granted a divorce. This position creates an additional problem however. In order to petition on five years separation the parties must be separated. Whilst it is possible for a couple sharing a property to be considered as separated for the purpose of this section if they live completely separate and independent lives [20] it may be difficult to prove this if any familial activities are shared [21] and it would therefore be beneficial to Jane if she could require Stephen to leave the property. The house in which they live is legally and it seems beneficially owned solely by Jane and this fact provides Stephen as Jane’s husband with the right to occupy the property [22] . The only requirements in addition to a lack of beneficial interest on Stephen’s part are that the house was a dwelling house [23] which was intended to be used as the matrimonial home [24] . These, it appears, will both be met.

Given that Stephen has the right to occupy the house Jane must attempt to take steps to remove this right or at least prevent him from exerting it. Jane, as the legal and beneficial owner of the property clearly has the right to occupy the house and because she shared the house as a home with Stephen [25] will be able to apply for an occupation order in an attempt to prevent Stephen from living there [26] . An occupation order is able to end Stephen’s right to occupy but must first take into consideration the housing needs of the parties and any children, the parties’ financial situation, the effect that not making an order might have on the well being of the parties and the conduct of the parties towards each other [27] . It seems reasonable to suggest that both parties are in a reasonably sound financial position and that therefore their housing needs could be reasonably met. Where there is a possibility that the applicant or child is likely to suffer harm attributable to the respondent an occupation order must be made [28] . There is no doubt that Jane has suffered harm which can be attributed to Stephen’s behaviour; his actions caused her breakdown, but there seems little possibility that Stephen would undertake a course of action which would cause further harm to Jane. In a similar fashion, despite the fact that the children do not wish to live with Stephen, there is no indication that his conduct would or is likely to cause them any harm. The court will therefore have discretion in respect of whether an order is made and may well make the order based on how the position of the children is settled. It does seem reasonable to suggest however that the nature of the parties’ relationship is such that it would not be unreasonable to require Stephen to find suitable alternative accommodation, thus providing Jane, eventually, with the opportunity to petition for divorce.

(b) Until quite recently it was not necessary for the court to consider any agreement which had been entered into between the parties to a marriage prior to the breakdown of the relationship. Now however the courts must give consideration to such agreements if certain circumstances are present [29] . When parties enter into an agreement prior to the marriage, providing it is entered into voluntarily and the parties are fully informed of its contents and implications it is generally believed that the parties intend to be bound by the agreement. It is only in circumstances where the court believes that it would be unfair if the agreement was upheld that it can be disregarded [30] . Certain presumptions must be made in respect of the agreement between Jane and Stephen therefore in respect of whether Stephen freely entered into it and was fully informed of the consequences. It seems reasonable that despite of his straightened circumstances at the time Stephen will not have been placed under undue pressure to enter into the agreement. If the view is taken therefore that the agreement is fundamentally valid consideration must be made as to whether it would be unfair on the parties to uphold its contents.

There is no doubt that the Stephen’s financial situation has changed dramatically since the agreement was made. At that time he was unemployed and now runs a successful business. Important consideration must also be given as to how he was able to begin his business and the contributions made by Jane in respect of how it was run. It is here therefore that the courts considerations will follow a similar route to those which would be made in situations where a pre-nuptial agreement does not exist. There are a number of specific considerations which the court must take into account when making ancillary relief orders [31] amongst these is the need for the court to consider the contributions both parties have made to the welfare of the family [32] with importance being given to not differentiating between the contributions of the money earner and the home maker [33] . In the current situation it appears that Jane has undertaken a large part of both of these roles and that, as such, she has made a significant contribution to the marriage. It could also be argued that Stephen’s contributions have been relatively minimal in this area. An interesting point to note is that there appears to be no limitation placed on the courts in respect of which party might be unfairly treated by a pre-nuptial agreement. In other words if here Stephen’s business was successful to the extent that its value was significantly greater than Jane’s wealth, adherence to the agreement made might be considered unfair on Jane and could therefore be disregarded by the court to ensure that she received a payment from Stephen. In the same manner a high level of capital investment by Jane into a business owned by Stephen could result in an unfair situation, therefore any consideration in respect of this point would clearly need far greater factual detail than is available here. If these facts are taken at face value and the simplest approach is followed it seems reasonable to assume that as a result of his marriage to Jane, Stephen will have ceased to be unemployed and have gained a successful business, for which Jane can take a large amount of the credit. With this in mind it does not seems unreasonable that he should be held to the previously agreed settlement figure of £100,000.

(c) In ordinary circumstances the courts are usually required to make orders in respect of which parent a child will live with following divorce. Here however the situation is a little different in that the children do not wish to live with Stephen and Jane is incapable of looking after them. The matter is complicated further by the fact that Rebecca is not Stephen’s daughter; there is no indication as to whether Rebecca is aware of this fact however.

Despite these complications the courts have the ability to make a number of orders in respect of the upbringing of children. Before making any consideration in respect of the children’s upbringing the court must be certain that the welfare of the children is its paramount consideration [34] and this must come ahead of any other consideration when deciding whether to make an order [35] . In order to assist the court in carrying out this requirement there is a checklist of factors which the court must consider during its deliberations [36] . The first of these, although they do not have any hierarchical importance [37] and indeed some judges simply regard them as a guide to the approach to follow [38] , is the need to consider the ascertainable wishes of the child concerned [39] . When these wishes are expressed by a mature child the court is likely to give a great amount of weight to them [40] and it is only in exceptional circumstances [41] that the wishes of a teenager will be overridden [42] . It could be argued here that the circumstances are exceptional in that the refusal by the children to live with Stephen could result in them being taken into care, however the courts will uphold a child’s view even when, in the opinion of the court, it is erroneously held [43] . Despite this position the courts will ensure that the reasoning behind the child’s position is considered [44] and will overrule if the view is completely misinformed [45] . In this situation therefore it seems highly unlikely that Rebecca’s views on the position regarding her upbringing would be disregarded. Before considering whether the same approach should be followed in respect of Daniel, who is of course much younger, the courts must assess the level of his maturity and understanding of the situation and consider whether he is able to balance the consequences of his wishes to such an extent as to be able to make an appropriate decision [46] . This is a question of fact which cannot be answered without further information but if Daniel is found not to be sufficiently mature the court would need to consider the remainder of the checklist provisions.

The first of these relates to the physical, emotional and educational needs of the child [47] . It is vital that the emotional needs of the child are met [48] . It seems reasonably clear that Jane cannot meet Daniel’s needs and that it may be, given his view, emotionally distressing for him to live with Stephen. Stephen might however be considered by the court to be perfectly capable of meeting Daniel’s needs. The courts must also consider the situation in respect of how a change of circumstance will affect Daniel [49] . It is presumed that he is currently living with both Jane and Stephen and whilst there may be issues as mentioned above in respect of Stephen’s living arrangements the court may find that it would be more beneficial for Daniel to remain living with Stephen than to enter care. The general position is that the courts will attempt to limit the disruption on the child as much as is practicably possible and will take steps to ensure that the child’s circumstance remains constant even if this results in siblings being separated [50] . One further point which the court might consider in this respect is that if Jane lives with Nigel and he is felt to be capable of meeting the children’s needs the fact that Jane alone is unable to do so will be less of a concern [51] .

In practical terms there are therefore several possible outcomes in respect of the upbringing of the children. The court may find Jane capable, although this is unlikely, and award her residence of the children [52] . Jane may also be awarded residence if Nigel is felt to be capable of providing for the children’s needs. The court may award residence of Daniel to Stephen and split the siblings or both children might be placed under the care of the local authority [53] until such time as Jane is sufficiently recovered to be able to take care of them again [54] 



Jonathan Herring, Family Law (3rd edn, Pearson Education, England 2007)

Kate Standley, Family Law (7 edn Palgrave Macmillan, Basingstoke 2010)

Frances Burton, Family Law ( Cavendish Publishing, Great Britain 2003)


Stevens v Stevens [1979] 1 WLR 885

Cleary v Cleary [1974] 1 All ER 498

Clarkson v Clarkson (1930) 143 LT 775

Dennis v Dennis [1995] 2 All ER 51

Birch v Birch [1992] 1 FLR 564

Bradley v Bradley [1973] 3 All ER 750

Hollens v Hollens (1971) 115 SJ 327

Mouncer v Mouncer [1972] 1 All ER 289

K v K [1996] 3 FCR 158

Granatino v Granatino [2010] UKSC 42

Miller v McFarlane [2006] UKHL 24

Southwood LBC v B [1993] 2 FLR 559 per Waite LJ

Re H (Residence Order: Child’s Application for Leave) [2000] 1 FLR 780

Re H (Residence Order: Child’s Application for Leave) [2000] 1 FLR 780

Re M (Medical Treatment: Consent) [1999] 2 FLR 1097

Re B (Minors) (Change of Surname) [1996] 1 FLR 791

Re S (Contact: Children’s Views) [2002] 1 FLR 1156

Re M (A Minor) (Family Proceedings: Affidavits) [1995] 2 FLR 100

Re M (Intractable Contact Dispute: Court’s Positive Duty) [2006] 1 FLR 627

Re MB [1997] Med LR 217

Re J (Children) (Residence: Expert Evidence) [2001] 2 FCR 44

Re DW (A Minor) (Custody) [1984] 14 Fam Law 17

Re B (T) (A Minor) (Residence Order) [1995] 2 FCR 240