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Published: Fri, 02 Feb 2018
Case of tom and erika
In the case of Tom and Erika there are three main issues that are highlighted, if Erika can divorce Tom, how she can protect herself from his violent outbursts and finally if Erika can divorce Tom then what financial settlement can she expect to receive.
Firstly there is the issue as to whether or not Erika can divorce Tom. For Erika to be able to apply for a divorce according to Section 1 (1) of the Matrimonial Causes Act 1973, the marriage has to be ‘irretrievably broken down’. To achieve this it is necessary for Erika to prove one of five facts, which are displayed in Section 1 (2) of the Matrimonial Causes Act 1973. If none of these five requirements are proven then a divorce cannot be granted by the judge, even if the court does believe in fact that the marriage has irretrievably broken down. In the same vein a divorce is not granted if one of the five facts can be proven, but the courts believe that the marriage has not irretrievably broken down. The five facts that have to be proven are the following; the respondent’s adultery, the respondent’s desertion, the respondent’s behaviour, two years separation with the respondents consent to divorce and finally five years separation. It is clear that Erika cannot apply on all of these grounds, the couple have not been ‘separated’ long enough to apply for divorce for either two years separation with the respondents consent to divorce or five years separation. Based upon the facts of the case it does not appear that Tom has acted in an adulterous manner and therefore Erika could not apply for divorce on this ground, in the same way she cannot apply for desertion as it requires the respondent to have deserted the petitioner for two years or more, which is not the case. Therefore it is only possible for Erika’s to attempt to gain divorce from Tom on one of the five grounds, that being based on the respondent’s unreasonable behaviour.
The issue of the respondent’s behaviour is dealt with in Section 1 (2) (b) of the Matrimonial Causes Act 1973, it states the following, ‘the respondent has behaved in such a way that the petitioner cannot reasonably expected to live with the respondent’. The vital point here is that it is not merely enough just to prove that the respondent has behaved unreasonably. The behaviour has to be that of which a right minded person would consider to be unreasonable behaviour. The court will take into account the personality of the parties when making the decision as to whether or not the application will be successful, this was displayed in the case of Birch -V- Birch  1 FLR 564. If the petitioner has reacted in an unreasonable way to the unreasonable behaviour of the respondent then the petition could fail all together. Domestic Violence falls under this heading of unreasonable behaviour, it could also be a number of acts which accumulate to become unreasonable behaviour, and these acts can be very small or minor. In Erika’s case this would include such acts as; Tom spitting at her, throwing a glass of wine over her and throwing his plate against a wall. The case of Gollins -V- Gollins  AC 644 shows that although it has to be proved that the behaviour was unreasonable the respondent does not have to be blameworthy. The court will also take into account any delay over six months, since the last case of unreasonable behaviour, any less than six month then the delay or time will not be taken into account when coming to a decision. Therefore it would be considered, based upon the facts, that Erika would succeed under Section 1 (2) (b) ‘unreasonable behaviour’ to successfully divorce Tom, although ultimately it is down to the discretion of the court and how they view the facts.
The next factor is as to whether or not there is some way that Erika can protect herself for the violent outbursts of Tom, and if so how. There appears to be two ways in which Erika can protect herself in this situation. These remedies are found in under the Family Law Act 1996, there is the choice of a non-molestation order or an occupation order, both of which would be effective in the given circumstances. Firstly the non-molestation order, molestation is not define within the Act but includes conduct that harasses or threatens the applicant. This order is a less severe one, it does not require either party to leave the home, and therefore is more widely and readily available. This remedy is limited to those who are consider to be ‘associated persons’, this is defined in Section 62 (3) ‘For the purposes of this Part, a person is associated with another person if— (a) they are or have been married to each other.’ This is defined further by Wall J in G -V- F  2 FCR 638, ‘if it is unclear whether the relationship between two people falls within one of the definitions it should be treated as if it does’. Erika would be considered an associated person as she falls into the definition above. The non-molestation order can be granted under Section 42 (5) of the Family Law Act 1996, and it can be seen that the aim of the order is to provide protection, health in this part of the act means physical and mental, Section 42 (5)’ In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being— (a) of the applicant or, in a case falling within subsection (2)(b), the person for whose benefit the order would be made’. In the case of C -V- C  1 FLR 554 the non molestation order is aimed at ‘some quite deliberate conduct which is aimed at a high degree of harassment of the other party’. The strength of a non-molestation order is shown in Section 42 A as it states it is an offence for anybody to act in such a way, or do something, that he/she is prohibited from doing by a non-molestation order without a reasonable excuse. This change was brought about by the Domestic Violence, Crime and Victims Act 2004, the changes mean that it is no longer up to the victim to decide whether or not to take action for breach of the non-molestation order, but is now in the hands of the Police. It can be clearly seen that Erika would be eligible to apply for this type of order under the circumstances; a non-molestation order would be an extremely effective method of protecting herself against Tom’s violent outburst.
Another way that Erika can protect herself from the violent outbursts by Tom is to gain an occupation order. This order would remove the abuser from the home and give the victim the right to stay in the home. This order is usually used in cases involving domestic violence, if it is a severe case then alternative accommodation for the victim will be found so the abuser does not know where they are. Erika would make a claim for this order using Section 33 of the Family Law Act 1996, as she is married to Tom this is shown in Section 33 (ii) ‘has matrimonial home rights in relation to a dwelling-house’. The property must be a dwelling/house and was intended to be the home of the applicant and associate. Section 33 (7) is the starting point for the courts, Section 33 (7) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to it that— (a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and (b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made. The courts will assess what will happen if nothing is done, that is to say will the applicant suffer significant harm, if the answer is no then the significant harm test is not satisfied, for significant harm exceptional harm needs to be shown. Erika would have trouble in attaining this order as I feel that the harm she is experiencing from Tom could be sorted through a non-molestation order, it is not severe enough to warrant an occupation order, the courts would be unwilling to produce one.
The final issue to be addressed is that of what, if any, financial settlement can Erika expect if she were to divorce Tom. It is likely that the courts will look at the needs based approach and will take into account the needs of both parties. Equal division may be used as a starting point as shown in the case of White -V- White.
There is the principle of equally dividing the assets between the two spouses. However this ideal can be departed from as in the case of Dharmshi -V- Dharmshi, in which a company started from money that was inherited from the husbands father allowed the husband to attain more than half. As in the case of B -V- B which displayed that the wife was entitled to significantly more as nearly all of the couple’s wealth was made up from wealth she had inherited, this is very similar to Erika’s case, thus suggesting she would not be entitled to a significant proportion.
It is difficult to see how Erika will receive any significant financial settlement in this case, as stated all her efforts have been devoted to ‘Action for Wind Turbines’ and not the business. Erika’s past contribution, which is set out in section 25 (2) (f), would allow her to be compensated for the 10 years of unpaid work she did for the farm. Before they met they had nothing and the aim was environmental, Erika has not given anything up for the marriage, i.e. a carrier, so it is difficult to see that she would get anymore. This is supported further by the facts in the case of Re -V- (financial relief: Family Farm) in which upon divorce the husband was allowed to keep the family farm which he had inherited and had been in his family for generations, and which he wanted to pass down to his children. Therefore the wife only received 25% of the family assets, which was enough to meet he reasonable needs. This was held as the selling of the farm would devastate the husband, so would be unfair. In the light of this I would suggest that Tom got the family farm and that Erika receives what the courts see as what she reasonably needs.
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