Decree of divorce case

Questions

1. Peter is a successful merchant and seven years ago married Mary. Mary is a selfish and lazy woman. As soon as they were married, she made it clear to Peter that she was really only interested in him because of his money. Peter’s business is not doing very well at the moment. Although he has told her that she must curtail her spending, Mary spends large sums on designer clothes and has run up high bills on credit cards. She insists on employing a domestic helper to do all the domestic chores, although she is not working. For the past few months she has refused all his attempts at sexual intercourse. Peter is so worried about their financial position that he is taking tranquilisers.

Peter seeks your advice as to whether he will be able to obtain a decree of divorce.

Answer

Background

1. In this case scenario, Peter is asking advice to me on whether he can be able to obtain a decree of divorce from his wife Mary.

2. He married her for seven years but it was not a success marriage.

3. Peter is now seeking a dissolution of his unsuccessful marriage because he believed that their marriage has broken down irretrievably, which is stated under S.11 of the Matrimonial Causes Ordinance (MCO) as the sole ground for making a petition of divorce.

4. But still, to prove their marriage has broken down irretrievably, it still needed that his case satisfies one or more of the facts mentioned in S.11A (2) of the MCO.

5. Based upon Peter’s saying, his wife has been behaving that he cannot expect to continue living with her as reasonably which align with S.11 A (2) (b) of the MCO.

The Case

6. Peter and Mary have been married for seven years.

a) Peter is a merchant but Mary dependent housewife.

b) According to the information provided by Peter, previously his business is quite good and Mary married him due to his money.

c) But at the moment, his business are no more doing well, but Mary is continued keep on spending much amount of money even though he requested her to curtail the spending.

d) Still Mary ignored these and continued large spending on designer clothes resulting in a high accumulation of bills charged to their credit card accounts.

e) Peter mentioned Mary as “a selfish and lazy woman" and he believed that Mary married him because of his financial status.

f) Even though Mary is unemployed and has free time, she still kept a domestic worker to accomplish all their domestic chores.

g) He faced frustrated when Mary refused sexual intercourse within past few months and as a result of all these stress, Peter is currently taking tranquilizers to cope these stress.

The Law

7. S.11 of the Matrimonial Causes Ordiance (MCO) states that:

“The sole ground for presenting or making a petition or application for divorce shall be that the marriage has broken down irretrievably…"

8. S.11A (2) of the MCO also stated that:

“The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts…

(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent."

9. Furthermore, s. 15 provides that :

“(1) In any proceedings for divorce it shall be the duty of the court to inquire, in so far as it reasonably can, into any facts alleged by any party to the proceedings.

(2) If the court is satisfied on the evidence of any such fact as is mentioned in section 11A(2) or 11B(2), then unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to subsection (3) of this section, grant a decree nisi of divorce."

10. Buffery v. Buffery [1988] 2 FLR 365 highlights the necessity of one of the five facts mentioned in S.11A (2) of the MCO to be established before a divorce can be granted. In this landmark case, it was ruled that even though that there was no dispute that the marriage of the wife and the husband had irretrievably broken down, no divorce could be granted since not even one of the five facts was proven.

11. The burden is of course on the petitioner to prove, on balance of probability that the respondent has behaved as alleged that the petitioner cannot reasonably be expected to live with the respondent.

12. The words “reasonably be expected", according to Rayden and Jackson on Divorce and Family Matters, 18th edition, suggest an objective test :

“The words …… prima facie suggest an objective test.  Nevertheless, in considering what is reasonable, the court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable …… The approach has been thus summed up.  The court has to decide the single question whether the respondent has so behaved that it is unreasonable to expect the wife to live with him :  in order to decide that, it is necessary to make findings of fact as to what the respondent actually did, and findings of fact as to the impact of that conduct on the petitioner :  there, of course, a subjective element has been evaluated but at the end of the day the question falls to be determined by an objective test …… "

13. The authority for this approach can be found the speech of Lord Reid in Gollins v Gollins[1963] 2 ALL ER 966 at 970 where he said :

“A judge does and must try to read the minds of the parties in order to evaluate their conduct.  In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence.  We are dealing with this man and this woman and the fewer a prior; assumptions we make about them the better".

14. The correct test to be applied is in fact stated by Dunn J in Livingstone-Stallard v Livingstone-Stallard [1974] 2 ALL ER 766 at p 771 :

“Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and the personalities of the parties".

15. This proposition of Dunn J was approved as the correct test by the Court of Appeal in O’Neill v O’Neill [1975] 3 ALL ER 289 at 295, and was also applied in subsequent cases in Bergin v Bergin [1983] 1 ALL ER 905, Buffery v Buffery [1988] 2 FLR 365 CA, and Hadjiruilitis (Tsavliris) v Tsavliris [2003] 1 FLR 81.

Discussion - Applying the Law to the Facts of the Case

16. With accordance to the fact set in S.11 A (2) (b) of the MCO, information given by Peter support his claim that his marriage has broken down irretrievably and he could not reasonably be expected to continue living with her:

a) Because Peter’s requests for Mary to curtail the spending but she still persistently spending a lot in designer clothes resulting in a large sum of bills on their credit card. Based on the information, Mary was very much aware that her husband business was facing difficulties and being asked to curtail in her spending by her husband many times. Again, as she is never employed, it is Peter’s sole responsibility for all their household’s expenses.

b) Mary has constantly refused to have sexual intercourse with her husband for past few months, which made Peter more hostile.

c) Despite of not having any work and many extra times at home to do households chaos, Mary insisted on having a domestic worker. It also created additional financial cost for Peter and more worsen the financial situation.

d) All the stresses from his financial unsuccessfulness are being worsened by his ill relationship with his wife. As this ill relationship with his wife is one of the major factors for him, he has to use tranquilizers to relieve his stress.

17. This all make me to practice the objective test used in Livingstone-Stallard v. Livingstone-Stallard to determine whether any right-thinking person would come to the conclusion that the respondent (Mary) had behaved in such a way that the petitioner (Peter) could not reasonably be expected to live with her.

18. Based on the information provided by Peter, it can clearly be observed for a right-thinking person; Peter’s current situation is serious and has the potential to get worse if it is not properly solved the issue.

19. He is right now taking tranquilizers in order to cope illustrating that how much is his financial struggles and causing him tremendous amounts of stress. It was more worsened by another factor of ill relationship with his wife in addition to his financial instability.

20. Even though Mary is very much aware of her husband’s financial difficulties, she never did any effort to reduce Peter’s difficulties and stresses. Her current behavior and attitude showed that she was totally dis-regarding her husband health.

21. Mary has also neglected her husband request to curtail her excessive spending.

22. Peter’s request to his wife, if being a right-thinking person, is fair if she considered her wife is the sole income generator of the family.

23. Mary persistent refusal towards sexual intercourse with her husband also showed the ill relationship.

24. While considering all the above facts, a right-thinking person would conclude that “Peter and Mary’s marriage" is a detrimental. After considering all the law and facts, I strongly believed that Mary behaviours are un-reasonable from Peter expectation and will not be able to continue living with her.

Conclusion

25. By using the objective test from Livingstone-Stallard v. Livingstone-Stallard to the case, I would like to conclude that Mary behaviours are un-reasonable from Peter expectation and will not be able to continue living with her. Hence, I believed that Peter current situation is able to attain a decree for divorce under S.11 A (2) (b) of the MCO.