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Factors That a Court Will Take Into Account in Divorce

Info: 1957 words (8 pages) Essay
Published: 22nd Jul 2019

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Jurisdiction / Tag(s): UK Law

Before Sharon and Tony Shameless will be granted a divorce they must be able to show that the grounds under the Matrimonial Causes Act 1973 have been satisfied. Therefore, it must be demonstrated that their marriage has irretrievably broken down. This will be capable of being established by showing that one of the five facts under section 1 (2) have been satisfied namely; adultery, unreasonable behaviour, two years desertion, two years separation with consent or five years separation. [1]

Accordingly, if none of these facts can be proven the courts will not grant a divorce as indicated in the case of Buffery v Buffery (1988). [2] Two of the five facts are clearly identifiable in this case in that Sharon has committed adultery with Rob and Tony has acted with unreasonable behaviour by slapping Sharon several times and distancing himself from Zach and Brad resulting in Tony and Sharon virtually leading separate lives within the same household. As such, it is evident that because of this the parties cannot be reasonably expected to live with each other as illustrated in the case of Hadjimilitis (Tsavliris) v Tsavliris (Divorce: Irretrievable Breakdown)(2002). [3] This has also been exemplified in the case of Bradley v Bradley (1973) [4] where it was stated that once the parties can establish that the marriage has irretrievably broken down, the reasonable expectation of the petitioner remaining with the respondent must then be taken into consideration. In view of this, it is likely that a divorce will be granted because as stated by divorce is readily and quickly available if both parties agree, and ‘’even if one of them is reluctant, he or she will, faced with a divorce petition, always accept the inevitable.” [5]

However, if Sharon makes the petition for divorce she will not be able to rely on the adultery ground because of the fact that it must be the respondent who has committed the adultery and not the petitioner. This is shown in the case of Cleary v Cleary (1974) [6] where it was stated that; it is not need to demonstrate the evidence why the petitioner could not longer live with respondent. Therefore, Tony would have to be the petitioner if this ground was to be relied upon. Still, Sharon will still be able to rely on the behaviour fact in that she could be expected to live with Tony after the way he has treated her and because of the way in which he has distanced himself from her children. Hence, as illustrated in Bannister v Bannister (1980) [7] it was held that it is not significant if the behaviour is unreasonable but the anticipation of cohabitation. Effectively, Sharon and Tony could not possibility be expected to carry on living as they are and so it is certain that this fact will be capable of satisfaction. This is because as shown in the case of O’Neill v O’Neill (1975) [8] it must be considered whether “any right-thinking person would come to the conclusion that this husband has behaved in such a way that his wife cannot reasonably be expected to live with him.” This is ultimately based upon the circumstances of the case and given Tony and Sharon’s track record, cohabitation is impracticable.

The court when making financial orders must take intoGeo2010-12-10T12:38:00

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consideration a number of factors which provide in the Section 25 of Matrimonial Act 1973: [9]

‘’The income, earning capacity and other financial resources of each of the parties

now and in the foreseeable future’’. It is clear that Sharon is a lower position to Tony, she has stopped to work full time, and obviously she can have the liability to look after Brad and Zach. In addition Sharon’s financial position is inferior to Tony’s. Tony has the advantage to work full time as policeman.

‘’The financial needs, obligations and responsibilities of the parties.’’ In this case, it

will be slight difficult to establish whether the financial needs and her responsibilities of Sharon for Brad and Zash are dominated to Tony’s of Piere because Piere has disability and he needs special care on a daily basis which is cost enough.

‘’The standard of living enjoyed by the family before the breakdown of the marriage.’’

Tony and Sharon purchased the property together; though, it will be more difficult to decide whether Sharon will acquire the family home solely.

Consequently matrimonial home was funded by a 100% mortgage from Tony and Sharon jointly. It is not clear whether the loan will be pay in full from Ton or If it will be pay with Sharon. Whether Sharon is in fact entitled to the family home is nonetheless dependent upon a number of factors, yet if the property is registered then the legal owner of the property will be determined by identifying who is the registered owner of the property as provided under section 52 of the Law of Property Act 1925 [10] . Since both Tony and Sharon purchased the property jointly, however, it will be more difficult to establish whether Sharon will be capable of acquiring the family home solely and as such the principles in equity may have to be ascertained. Sharon may thus be able to obtain the property by way of a resulting trust if it can be found that she contributed to the purchase price of the property as shown in the case of in Westdeutsche Landesbank Girozentrale v Islington LBC (1996). [11] Nonetheless, because the property was acquired on a 100% mortgage it is unlikely that Sharon would have contributed to the price because she gave up her job as a nail technician shortly after they purchased the home and so it is doubtful that there was a presumed intention between the parties.

Nevertheless, Sharon may be able to rely on the doctrine of constructive trusts as demonstrated in the case of Lloyds Bank plc v Rosset (1991) [12] if it can be shown that both parties intended for Sharon to have an interest in the property, also known as a common intent. However, it must also be shown that Sharon “relied upon that common intention to her detriment” [13] and since Sharon gave up her full time job to look after the children she has clearly suffered a detriment on reliance upon the common intent that they she would remain living in family home. Thus, as exemplified in Stack v Dowden (2007) [14] the court will infer from the circumstances of the case what the most appropriate shares in which the parties are entitled to under the property would be. Here, it was held that the question to be asked is “what would be a fair share for each party having regard to the whole course of dealing between them in relation to the property?” [15] However, since Tony has to look after Pierre who was born to Claudia and diagnosed with cystic fibrosis, it may seem unreasonable to give Sharon full entitlement of the family home. This is because the property has been extended and adapted to Pierre’s needs including the addition of special physiotherapy facilities which Pierre requires for Tony to undertake the physiotherapy needed by Pierre on a daily basis. Accordingly, it is therefore most unlikely that the property will be taken away from Tony on these grounds.

According to the welfare of Brad the court must take into all of the following factors subject to 25(3) which oblige to take into to all the circumstances of the case first consideration being given to the child’s of the family who is under 18 years old: [16]

‘’the financial needs of the child’’

‘’the income, earning capacity (if any), property and other financial resources of the


‘’any physical or mental disability of the child’’

‘’the standard of living enjoyed by the family before the breakdown of the marriage’’

‘’the manner in which he was being and in which the parties to the marriage expected him to be educated or trained’’

In M v B (Ancillary Proceedings: Lump Sum) )(1998) [17] , Thorpe LJ said that it was one of the most significant issue to implementation the factors in s.25 to attempt to find what is available to meet the require of each party for a home especially when there are young children. The custody of the child needs a home and the other parent should have an ideal state to contact with his/her child. When a party to the marriage has failed to give or to make an ideal good contribution to cover the maintenance of the child then the court can make an order [18] . Tony would seem still to be working at the West Mercia Police Force, therefore, it most likely to receive a huge salary per month.

However, Tony may be required to provide maintenance to Sharon for Zach and Brad, yet as provided under the Child Support Act 1991 [19] and the Child Support, Pensions and Social Security Act 2000 [20] , liability is only attached to biological parents and so no maintenance would have to be provided to Zach. Thus, if it is found that Brad is not Tony’s biological son, then no maintenance will be required for him either.

Overall, divorce is most likely to be granted to Sharon and Tony Shameless because of the establishment of one of the five facts, however Sharon is unlikely to acquire the family home based upon the circumstances of the case.

Word length: 1503

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