Re: The Newman Family
a) Dorothy v George – Divorce
The ground for divorce under the present law is that the marriage has “broken down irretrievably”. However, notwithstanding the expressed preference for “no-fault” divorces, s.1(2) of the Matrimonial Causes Act 1973 still requires that this irretrievable breakdown should be established by the existence of one of five “facts”:
a) That the Respondent has committed adultery and that the Petitioner finds it intolerable to live with the Respondent;
b) That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent;
c) That the Respondent has deserted the Petitioner for a continuous period of two years immediately following the presentation of the Petition;
d) That the parties to the marriage have lived apart for a continuous period of at east two years immediately preceding the presentation of the Petition and the Respondent consented to a decree being granted;
e) That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
Of the above, a), c) and e) are unlikely to apply to Doris and George. For many spouses, the acceptance of grounds of unreasonable behaviour contained in a petition, however mildly framed, remains objectionable. Accordingly, if the parties are agreed that there should be a divorce, if they are intending to separate and if neither of them is under any pressure of time to dissolve the marriage (for example, should either Doris or George wish to be free to remarry before the period of two years plus the time necessary to present the petition and pursue the proceedings to Decree Absolute has elapsed) often the least acrimonious form of proceeding is by this “two years’ separation and consent” route. If George will not agree to this and Doris is unwilling or unable to establish a ground for divorce such as unreasonable behaviour, adultery or desertion, her remaining option would be to leave George and wait until they have lived apart for at least five years at which point he would be unable to resist the presentation of a petition and the dissolution of the marriage. If Doris wishes to pursue a divorce even in the face of opposition from George, she will be best advised to consider a petition on the grounds of his unreasonable behaviour. The drafting of grounds to be incorporated in a petition should present little difficulty after a marriage of this duration. The Family Law Sub-Committee of the Law Society has observed that at least in cases which are ultimately undefended “the evidence presents little difficulty – after several years of marriage, virtually any spouse can assemble a list of events which, taken out of context, can be presented as unreasonable behaviour sufficient on which to found a divorce petition”. While Doris’ complaints about housework and racing pigeons may seem trivial, the court would be obliged to consider the impact of such behaviour in the context of this particular marriage and in the light of the impact upon the Petitioner since the test will be whether she can “reasonably be expected” to live with George.
This is borne out by examples of decided cases. In Richards v Richards, the allegations included failing to mark the wife’s birthday or the parties’ wedding anniversary, refusal to take her to the cinema and failing to dispose of a dog which was damaging the matrimonial home. In O‘Neill v O‘Neill, the husband was said to have a withdrawn personality but the behaviour upon which the divorce was eventually granted was his embarkation upon an extensive DIY programme in the course of which he mixed cement on the living room floor and there was no door on the lavatory for 8 months (cite B&Q as a Co-Respondent?!). It should be noted that the requisite behaviour does not even have to be blameworthy by accepted standards of marital duty: in Thurlow v Thurlow, the husband was granted a decree against his wife who was epileptic and bed-ridden. While the court was conscious of the obligations of married life including the need to accept the burden imposed by the ill-health of a spouse, the decree was appropriately granted since the question of whether the Petitioner could reasonably be expected to go on living with the Respondent was nonetheless answered in the negative.
Doris may also wish to consider the lesser used option of judicial separation. This can be obtained where one of the five facts can be established but there is no need to prove the consequent “irretrievable breakdown” required for a divorce. The effect of judicial separation is that it confers upon the court the same powers to make financial provision as those following divorce (for a further discussion of which see c) Pauline v Robert – Ancillary Relief below). It also formally recognises the fact of separation and brings to an end certain rights such as the right to intestate succession. The circumstances in which such decrees are now sought are comparatively rare but if, for example, Doris had religious objections to divorce per se, this procedure would enable her to avail herself of relief ancillary to divorce without being seen to be responsible for the dissolution of the marriage.
b) Paul & Carlton – Civil Partnership
For the purpose of this advice it is assumed that Paul and Carlton are both male and not affected by any of the issues relating to Andrew and Vladimir discussed at d) below! The Civil Partnership Act 2004 comes into force on 5th December 2005. The allows same sex couples to enter into a formal legal relationship with each other and imposes rights and responsibilities akin to marriage. In summary, these include:
- Employment and pension benefits;
- Recognition under the intestacy rules;
- Access to fatal accidents compensation;
- Recognition for immigration and nationality purposes;
- A duty to provide maintenance for the civil partner and children for which the partners are responsible;
- Civil partners will become liable to the same child support responsibilities as married couples and natural parents.
Section 1 of the Act establishes Civil Partnership as a legal relationship between two people of the same sex. Assuming that Paul and Carlton are not attempting to register an “overseas relationship” which is treated as a civil partnership the process will involve registration of the partnership. The ceremony will be conducted by a Civil Partnership Registrar and no religious content is allowed while the Registrar is officiating. So far as any children of or living with the partners as children of the family is concerned , the conferring of parental responsibility is widened so as now to include persons who are civil partners of as well as those married to a parent. Similarly, the provisions of the Children Act 1989 are amended so as to entitle a civil partner to apply for a residence or contact order to a child who is a child of the family where that person is a civil partner in a civil partnership (whether or not subsisting). Similarly, the financial provisions of the Act are broadened so as to make provision for children living with parties to a civil partnership as well as parents and step-parents. As in the breakdown of marriage, there is protection for children of the family. Accordingly, s.63 provides that a dissolution order may not be made final until the court has given consideration to the arrangements for the children and whether there is any need to exercise any of the powers available under the Act.
The Act also has effect in relation to rights under housing legislation. The Fatal Accidents Act 1976 is amended in order to bring a civil partner within the categories of dependants under that legislation. Significantly, the non-molestation and occupation provisions of the Family Law Act 1996 are amended in order to bring civil partners within the scope of that legislation.
. In common with married couples who may avail themselves of divorce, judicial separation or proceedings for nullity, civil partners may bring the partnership to an end. Section 37 provides for the making of a “dissolution order” which dissolves a civil partnership on the grounds that it has broken down irretrievably, a “nullity order” which annuls a civil partnership which is void or voidable and a “separation order” which provides for the separation of civil partners. In common with decrees nisi and absolute, a “conditional order” is followed by a waiting period of 6 weeks before the dissolution can be made final. The facts upon which it must be found that such a partnership has broken down reflect those in the MCA 1973 with the exception of adultery. The grounds upon which a civil partnership is void are largely technical but again the grounds upon which it is voidable are familiar – lack of valid consent on the grounds of duress, mistake, unsoundness of mind or otherwise, that one of the parties was pregnant at the time of the formation of the partnership by some person other than the applicant and, to reflect the effect of the recent Gender Recognition Act 2004, that an interim gender recognition certificate has been issued to either civil partner.
Thus with effect from 21st December 2005, Paul and Carlton will be able to enter into a legally-recognised same-sex partnership. They should be advised that while this will confer many of the benefits usually associated with marriage such as recognition under the intestacy rules and rights under housing legislation which have hitherto been denied to same-sex couples, it will also impose responsibilities upon them in relation to financial provision for the partner and any children of the family. In particular, it should be noted that it will not be possible to dissolve such a partnership and escape its consequences at will and with impunity. Dissolution is a court-based process akin to divorce which will carry with it highly similar financial and child care implications to those currently faced by married couples.
c) Pauline v Robert – Ancillary Relief
The powers of the court to make a variety of financial provision following divorce are contained in ss.23, 24, 25B and 25C of the Matrimonial Causes Act 1975. Section 23 provides for the making of periodical payments (“maintenance”) orders and orders for the payment of a lump sum. Section 24 provides for the making of property adjustment orders; most commonly such orders are made in respect of a spouse’s share in the former matrimonial home. However, in response to the criticism that periodical payments to a former spouse constituted a “meal ticket for life”, section 25A provides:
“…it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.”
This embodies the principle of what is known as the ‘Clean Break’. This has had a profound effect upon the disposition of such cases. The previous presumption of maintenance to (usually) a wife until death or remarriage has now been displaced but there has to be a corresponding compensation to her for the dismissal of her claims and the debarring of future claims which is usually achieved by an adjustment of the capital distribution in her favour. In addition, the court is obliged when exercising such powers to have regard to the factors specified in s.25 of the Act. The court must consider “all the circumstances of the case” but as a result of the child of the family, Bethany, it will be required to give “first consideration” to her welfare while a minor child of the family not having attained the age of eighteen. Against this background, the following factors will be examined:
- The income, earning capacity, property and other financial resources of the parties now and in the foreseeable future;
- The financial needs, obligations and responsibilities of each of the parties now and in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of the parties and the duration of the marriage;
- Any physical or mental disability of the parties;
- The contributions of the parties to the welfare of the family to date and in the foreseeable future;
- The conduct of the parties (but only if it would be “inequitable to disregard it”);
- The value to either of the parties of any benefit (for example, a pension) which is lost by reason of the dissolution of the marriage.
There is an obvious disparity in the parties’ respective incomes in this case. However, it is likely that Pauline has chosen to work part-time certainly while Bethany is not yet in full-time schooling. She should therefore be aware of the inclusion in s.25(2)(a) (earning capacity) of “any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire”. Thus, a court will be unlikely to base provision upon an assumption that Pauline will never be able to earn significantly more and thus make greater provision for herself and Bethany. However, for the present, a major consideration (in the light of the priority that will be given to the needs of a child of the family) will be the preservation of a home. Pauline is unable on her present income to afford to do so and so it is probable that there will be a transfer to her of Robert’s interest in the former matrimonial home. Since there is an equity (before notional costs of sale) of some £90,000 and Robert would thus be taken to be “losing” an assumed half share in this, it may well be that a court would consider making an order that would allow him to realise an interest when Bethany attains the age of 16 or completes full-time education (a ‘Mesher’ order after Mesher v Mesher) or in any event should Pauline die, remarry or cohabit (a ‘Martin’ order). This will be dependant upon Pauline satisfying the court that she will be able to service the existing mortgage and she may require short-term periodical payments from Robert to assist her In doing so while she improves her income.
Although the motor car is described as a “sizeable family asset”, it is subject to an HP agreement and may well be required by Robert in the course of his employment. It is unlikely that any adjustment would be made in respect of this property. Similarly, unless Pauline had a pressing short term need for funds, the court will probably not wish to interfere with the building society account in addition to depriving him of all or most of his share in the former matrimonial home. The disparity between the parties in terms of pension provision will have to be considered but Robert’s fund has a relatively low transfer value and the parties are still many years from retirement. Thus while it is possible for the court to make a pension-sharing order as defined by s.21A(1) of the MCA 1973, it is more likely that his retention of the value of this fund would be offset against the loss incurred by him in transferring his interest in the former matrimonial home particularly if this is on the basis of an immediate ‘clean break’ and Pauline’s entitlement to the equity in the property is not in future encumbered on a Mesher or Martin basis. Finally, the courts no longer have the power in most circumstances to order child maintenance as part of the overall balancing exercise described above. In the absence of agreement, maintenance for Bethany will be calculated by means of an assessment by the Child Support Agency.
d) Andrew v Ludmilla – Nullity
Section 11(c) of the Matrimonial Causes Act 1973 provides that a marriage is void unless the parties are “respectively male and female”. Previously it was the case that the sex of male and female couples was a relatively straightforward question of fact and disputes under this provision rarely arose. However, the development of gender reassignment therapy has given rise to problems. Until comparatively recently it was thought that the issue remained straightforward notwithstanding any physical alterations effected by surgery and hormone therapy. In Corbett v Corbett, a male at birth had undergone a sex change operation. She lived and successfully pursued a career as a woman and was recognised as the same for national insurance and passport purposes. However, Ormerod J held that the law should adopt chromosomal, gonadal and genital tests. If these were congruent, they should be determinative of a person’s sex for the purposes of marriage . The biological sex of a person was fixed at birth and could not be changed by subsequent surgical intervention or even the natural development of organs. In Bellinger v Bellinger, the petitioner was a transsexual who had been correctly classified as male at birth in 1946 but who had undergone gender reassignment surgery. In 1981 she underwent a ceremony of marriage with a man who subsequently supported her petition for a declaration that the marriage was valid and subsisting. At first instance, Johnson J while sympathetic and cognisant of the fact that the law had changed in other jurisdictions nonetheless held that e was bound to apply the law as it currently existed in the UK. This was upheld (Thorpe LJ dissenting) in the Court of Appeal. Upon appeal to the House of Lords, Lord Nicholls drew attention to the decision of the European Court of Human Rights in Goodwin v United Kingdom which was decided after the Court of Appeal decision in Bellinger. Although that case was not directly concerned with the validity of a marriage, the transsexual complained that for other purposes such as the ability to bring a claim for sexual harassment before an Employment Tribunal and eligibility to receive a state retirement pension at the age of 60, she was unfairly treated by the laws and practices of the UK. The ECHR held that while precedent should not be departed from without good reason, regard should also be had to changes in society and that a strict adherence to chromosomal factors could no longer be regarded as the sole decisive test. While the court recognised that it was for member states to determine the appropriate test of successful gender reassignment, it expressed the view that there was “no justification for barring the transsexual from enjoying the right to marriage under any circumstances”. Following the Goodwin decision, the UK Government announced its intention to bring forward primary legislation that would allow transsexual people who can demonstrate that they have taken decisive steps towards living in a particular gender to marry in that gender. However, the House of Lords was unable to rule upon what test should for the time being be determinative and refused to declare the marriage was valid. Lord Nicholls concluded (at para.49):
“A change in the law as sought by Mrs Bellinger must be a matter for deliberation and decision by Parliament when the forthcoming Bill is introduced. However, a claim was also advanced that s.11(c) of the Matrimonial Causes Act 1973 was incompatible with Articles 8 and 12 of the European Convention on Human Rights as implemented by the Human Rights Act 1988. A declaration of incompatibility was sought. It was submitted that the decision in Goodwin envisaged that the UK Government would amend the domestic law in due course and that it should be allowed a reasonable period n which to do so. This argument was rejected. It was held that if a provision of primary legislation is shown to be incompatible with a Convention right the court, in the exercise of its discretion, may make a declaration of incompatibility under the Human Rights Act 1988. In exercising this discretion the court must have regard to all the circumstances and it was noted in particular that there had been no attempt to challenge Goodwin and that in fact legislation was proposed to give effect to the decision. Thus the House was willing as the final court of appeal in the UK to record the fact that the present state of statute law was incompatible with the Convention. These developments led to the enactment of the Gender Recognition Act 2004 which received Royal Assent on 1 July 2004. This provides that a gender recognition certificate may be issued upon the acceptance of appropriate evidence from a medical practitioner practising in the field of gender dysphoria. For an application to be successful, the person must have lived in the acquired gender for at least two years and be intending to do so for the rest of their lives. The Matrimonial Causes Act 1973 is thus amended so that if at the time of the marriage one party did not know that the other party was previously of another gender, the former may seek to annul the marriage. An application to do so must be issued within 6 months of the grant of an interim gender recognition certificate.
Cretney, S., Masson, J. & Bailey-Harris, R., Principles of Family Law, (7th Ed., 2003)
Hale, B., Pearl, D., Cooke, E., Bates, P., The Family, Law and Society, Cases and Materials, (5th Ed., 2002)
Hayward Smith, R. & Newton, C., Jackson’s Matrimonial Finance and Taxation, (7th Ed., 2002)
Civil Partnership Act 2004 & Gender Recognition Act 2004, www.opsi.gov.uk
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