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Marriage acts in the UK
Marriages in the United Kingdom are covered by the Marriage Acts. While marriages and civil partnerships are governed by different acts, the former by the Marriage Acts and the latter by the Civil Partnership Act of 2004, it should be noted that the Civil Partnership Act applies to same-sex couples and gave the same rights and responsibilities which are accorded by a civil marriage. As of such, the application of any division of property would be the same regardless of whether it is a civil partnership or a marriage, considering that civil partners are absolutely entitled to the same rights to property as their married counterpart, and cannot be subject to any discrimination.
Ending Fred’s Marriage to Sally
There are three measures which a marriage can end in the United Kingdom, which is divorce, judicial separation, or nullity of marriage. The appropriate situation in this case would be a divorce.
The law on divorce is set out in Part 1 of the Matrimonial Causes Act 1973 (‘MCA’). “MCA 1973, s.1 (1) provides only one ground for divorce and that is that the marriage has irretrievably broken down". (Welstead, 2008, p. 121, para 6.10). It is not enough however for the spouse who wants to divorce to simply state that the marriage has irretrievable broken down. There are two requirements. The first is that the petitioner must have been married for at least a period of one year. The second is that the petitioner must establish one of the ‘five facts’, even if it is self-evident that the marriage has irretrievably broken down.
This was the case in Buffery v Buffery (1998). The court could not grant the petitioner a decree of divorce, even though it was undeniable that the marriage had broken down. This was due to the petitioner being unable to establish one of the ‘five facts’.
The ‘five facts’ are found under MCA 1973 s.1 (2). They are (i) adultery; (ii) unreasonable behaviour; (iii) desertion after two years; (iv) consensual separation after two years; and (v) non-consensual separation after five years. Even if the ground for divorce is made out it is still possible in limited circumstances for the courts to refuse the divorce, these are known as the ‘bars’ to divorce. Although rare, under s.1 (4) of the MCA the courts can still find that there hasn’t been an irretrievable breakdown, even if one of the five facts has been established.
We can first consider the fact of ‘adultery’. The adultery fact is found under s.1 (2)(a). Adultery is defined as consensual heterosexual sexual intercourse, where one of the two parties must be married, and the other is not the spouse of the married party. Anything less that sexual intercourse will not amount to adultery. The relationship which occurs outside of the marriage at present was not on the part of Sally, but on the part of Fred. On the facts given there has been nothing to state that Fred and Maggie engaged in intercourse. Even so, this point is irrelevant, as a person cannot rely on his or her own adultery as a base to start divorce proceedings. Fred will be unable to rely on this fact.
It is the ‘behaviour’ fact which must then be considered. The ‘behaviour’ fact is the most relied upon for divorce petitions. “Although this provision is commonly referred to as ‘unreasonable behaviour’, it is not the respondent’s behaviour itself which must be unreasonable. It is the expectation that the petitioner should continue to live with the respondent’s behaviour which must be seen to be an unreasonable one."(Welstead, 2008, p. 124, para 6.20).
Fred may seek to rely on the ruling in Katz v Katz (1972). In Katz, the husband was diagnosed with manic depressive illness coupled with features of paranoia and schizophrenia. In determining if the petitioner could reasonably be expected to live with the behaviour of the respondent, the court held that the wife was enduring beyond the ups and downs of married life, having considered her personal capacity, and the efforts made in coping with the behaviour of the husband. Here the wife was granted a decree of divorce.
Fred would argue that he fears for the safety of son and himself, and that he cannot be expected to live with the behaviour of his wife, even though she behaves in way where blame cannot be attached due to her mental illness.
It is most likely that Fred would be able to rely on this fact to establish irretrievable breakdown over any of the other ‘facts’, so it’s unnecessary to look at the remaining four, as nothing in the case facts that suggests any thoughts or actions of desertion or separation on Fred’s behalf
Financial Consequences of Ending Fred’s Marriage to Sally
The law which governs the split of property upon the end of a relationship is various, amongst which, is the Matrimonial Causes Act 1973. For instance, under sections 23 and 24 of the MCA 1973, the court is given the power to order financial as well as property division upon the grant of a decree of divorce. Such financial provisions may be in the form of secured payments, unsecured payments or lump sums.
In general, there are three financial situations which a couple may face when a relationship ends. If the two parties have previously engaged in a pre-nuptial agreement, the division of property will be dependent on the terms of such an agreement. In the absence of pre-nuptial agreements, the two parties may choose to either draft a separation agreement or allow the court to split their property amongst them. Should the two parties opt for the court to split the property amongst them, the court will take into account a split which it sees as fair, just and equitable.
Under s.25 of the MCA 1973, in dividing properties and making financial provisions, the court is required to take into account every single circumstances of the case, giving additional and first priority to the welfare of a child in the family who is a minor, that is, below the age of 18. Besides that, the factors which a court must take into account is the earning capacity or financial resources or contribution of a party, the financial needs and responsibilities, the standard of living enjoyed prior to the breakdown of marriage, existing contributions, potential future contribution, conduct of parties as well as various other factors.
In Fred’s current scenario, the relationship has lasted for 10 years, producing a child of the age of 8 years. The asset of the family are a three-bedroomed house registered under their joint names for £150,000 but is now worth £200,000. The deposit of £20,000 was paid by Fred while the rest of the price was obtained by a mortgage, to which they both contributed equally until Sally got sick 5 years ago. Sally used to earn £ 16,000 but is now no longer employed, while Fred still earns £ 40,000 per year.
In general, as a result of the judgment in the case of White v White (2001), the courts will use the principle of the yardstick of equality of division in order to bring fairness to both parties in ensuring they received their rightful share of the matrimonial property on divorce or dissolution of partnership. However, this principle does not automatically translate to the absolutely equal split of property at the end of the relationship, as the court as well as the legislature recognises that in most instances, that may bring about unfairness and burden to one of the party.
Looking at this situation, it would seem that the equal split would be fair for the purpose of Sally and Fred, even though Fred had been paying more than equally for the house. This is because Sally stopped paying because of her sickness and not for any other trivial reason. Further, even though Fred earns more than double the income of Sally, Sally had nevertheless contributed equally with mortgage payments, justifying the position that Sally and Fred had in fact intended for the house to be shared between the two of them.
Residence Order for Boris to live with Fred
The applicable law in this question is the Children Act 1989. It must be noted that under the divorce proceedings in the United Kingdom, a residence order for children are not automatic. Rather, petitioners must separately file a “Statement of Arrangement for Children", which does not need to be signed by the respondent, in order to seek for such an order. In the form, the court is given relevant information such as the details of the children within the marriage, including their education, who they live with as well as who looks after these children in the event that the petitioner or respondent goes to work.
In general, the courts in England would only hear residence issues or custody of children where there occurs a breakdown of relationship preventing effective communication. This is because the court considers that personal arrangements made by the petitioner and the respondent would work equally well without the need to resort to interference from the court. This is also strengthened by s.1 (5) of the Children Act 1989 which provides that “where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all." Hence, in general, the residence order will take the consideration of the best interest of the child into account.
Under the Children Act 1989, there are various court orders which could be applied for. However, the applicant must again take note of s.1 (5) since the court will only award such order if it benefits a child. The available orders are (i) residence orders which provides for where a child lives; (i) contact orders, which provides for the child to have contact with someone, such as siblings or parents; (iii) prohibited steps orders, which restricts the parental responsibility of the parents; and (iv) specific issue orders, which is available for the purpose of resolving one specific dispute.
In our situation, Fred cited his reason for wanting Boris to live with him permanently is because of the safety of Boris. Hence, the court would have to consider the fact that Sally suffers from a mental illness and has been hospitalized for the past year, as well as the fact that Sally does not always know where she is as well as what is going around her. Because Boris is still 8 years old and hence is underage and unable to take care of himself, it is necessary for the court to take into consideration that Sally would not always be able to take care of Boris. This is further strengthened by the fact that Sally has on a number of occasions unintentionally attacked Fred, in one situation with a kitchen knife and forcing him to obtain medical treatment.
From the facts of Fred’s case, it would seem that Fred would be able to seek a divorce based on the ground of irretrievable breakdown, by establishing the fact of ‘behaviour’, relying on the ruling in Katz, as well as a residence order for Boris to live permanently with him. Nevertheless, he would have to split the assets of the marriage together with Sally in order to divorce her.
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