Family Law
Introduction
The jurisprudence of divorce is governed under the Matrimonial Causes Act 1973 where it provides the exclusive land for divorce, viz. that the matrimony between Jason and Sandra has broken down irretrievably. [ 1 ] Nevertheless, in order to set up unretrievable dislocation, Jason will hold to demo that one of the five facts listed in subdivision 1 ( 2 ) of the MCA 1973 has been established on cogent evidence (RichardsVRichards )[ 2 ] . Meanwhile, it is notably that the tribunal in England and Wales is given a broad power in finding the agreement of kids between the Jason and Sandra. Since Jason and Sandra are married, they both have parental duty for Joyce and Tom [ 3 ] . Their parent duties will non be terminated even if the tribunal grants them a edict of divorce. By virtuousness of CA 1989, the focal point is on the public assistances of the kids [ 4 ] and therefore the public assistance checklist set out in subdivision 1 ( 3 ) of CA 1989 will be taken into history by the tribunal in make up one’s minding whether to allow portion abode to Jason and Sandra and to restrict Sandra’s contact with Joyce and Tom.
Divorce between Jason and Sandra
Since the matrimony between Jason and Sandra has lasted seven old ages, Jason is non restricted by the absolute saloon on the presenting of request for divorce within one twelvemonth of matrimony imposed by subdivision 3 ( 1 ) of the MCA 1973. Jason is allowed to petition for divorce if he is able to set up one of the five facts set out in subdivision 1 ( 2 ) of the MCA 1973.
Adultery and Intolerability: subdivision 1 ( 2 ) ( a )
The first possible fact that Jason would trust on is that if adultery and intolerability contained in subdivision 1 ( 2 ) ( a ) of MCA 1973. In order to successful in this claim, Jason would hold to demo that Sandra has committed criminal conversation and he finds it unbearable with her. InDennisVDennis[ 5 ] , criminal conversation is defined as a voluntary act of sexual intercourse between Sandra and another individual who is of the opposite sex. On the fact, Jason’s brother saw Sandra and Craig holding dinner at a local eating house and so go forthing the eating house together tardily at dark, keeping custodies and acquiring into the auto. Harmonizing to Sapsford V Sapsford [ 6 ] , It is improbable that this incident is sufficient to represent a land of criminal conversation as there is no grounds of sexual intercourse between Sandra and Craig. However, following the instance ofFarnhamVFarnham[ 7 ] , Jason would desire to raise a rebuttable given that Sandra has committed sexual intercourse with Craig by utilizing the circumstantial grounds of disposition and chance. However, it is improbable this claim will be successful as the fortunes does non in any sense suggest that Sandra and Craig have indulged in sexual intercourse.
Further, it must be noted that, criminal conversation is a serious accusal to do and therefore the tribunals have ever insisted on strong grounds to let such accusal. [ 8 ] Even if criminal conversation can be established, Jason would hold to demo that he finds it unbearable to populate with Sandra while the intolerability need non follow from Sandra’s criminal conversation (ClearlyVClealy) [ 9 ] . Harmonizing toGoodrichVGoodrich[ 10 ] , the intolerability trial is to be accessed subjectively and therefore Jason could trust on the fact that he can non get by with Sandra’s progressively volatile behavior and claims that it is unbearable to populate with Sandra.
Unreasonable Behavior: subdivision 1 ( 2 ) ( B )
A more realistic option for Jason is subdivision 1 ( 2 ) ( B ) of MCA 1973, where it provides that Jason can trust on the land of ‘unreasonable behaviour’ if he can set up that Sandra’s behavior is such that it is unreasonable for him to go on populating with her. Harmonizing toLivingstone- Stallard[ 11 ] , the focal point is non on the gravitation of the behavior per Se but on its impact on Jason. FollowingO’NeillVO’Neill[ 12 ] , the trial under s.1 ( 2 ) is to be accessed both objectively and subjectively, the nonsubjective facet concerns whether Jason is moderately expected to remain with Sandra, while the subjective portion takes into history the personalities of Jason and Sandra. Since we are told that Sandra’s behaviour becomes progressively volatile, the opportunity that Jason will win in this claim would increase.
It is likely that Sandra’s unreasonable behavior can be established, it is so necessary to look at the character of Jason and Sandra and make up one’s mind whether they can be expected to remain together moderately (AshVAsh) [ 13 ] . It can be pointed out that Sandra is holding an extramarital relationship with Craig and this it might non be sensible to anticipate Jason to populate with her. At this point, it is arguable that the tribunal will allow a edict of divorce on the land of s.1 ( 2 ) ( B ) based on Sandra’s behavior that makes Jason can non be moderately expected to remain with her.
Agreements in relation with Joyce and Tom
By virtuousness of subdivision 2 ( 1 ) of CA 1989, both Jason and Sandra owe parent duties toward Joyce and Tom. Such duty is defined in subdivision 3 ( 1 ) as ‘all rights, responsibilities, powers and duties and authorization which by jurisprudence a parent of a kid has in relation to the kid and its property’ . This right continue even after Jason and Sandra divorce. However, under subdivision 1 ( 5 ) if CA 1989, Jason and Sandra are required to register a statement of agreements for the kids, detailing the steps that have been resolved between them and besides the unsolved issues.
On the facts, there are two issues to be considered in respects with Joyce and Tom: who should the kids stay with and the extent of Sandra’s contact with the kids. In respects with these unsolved issues, the tribunal is able to do the kid agreements order under subdivision 12 of the Children and Families Act 2014 which replaces the orders antecedently knowns as abode orders and contact orders contained in subdivision 8 of Children Act 1989. The alteration of nomenclature supposed to travel off from accent of ‘resident’ and ‘non-resident’ parent and switch the focal point onto the children’s public assistance [ 14 ] . In the other words, the tribunal will take into history the public assistance checklist set out in subdivision 1 ( 3 ) of the CA 1989.
The Welfare checklist includes the discoverable wants feelings of Joyce and Tom ; their physical, emotional and educational demands ; the likely consequence on Joyce and Tom in their fortunes ; Joyce and Tom’s ages, sex, backgrounds and other relevant features ; any injury which they have suffered or are at hazard of agony ; and how capable Jason and Sandra and Craig are run intoing Joyce and Tom’s demands.
We are told that Joyce is five old ages old and Tom is at an age of three. They are still immature and might non be able to show their true wants and feelings with respects to the issue of abode and contact and therefore it is improbable that the tribunal will give weight to their wants (StewartVStewart) [ 15 ] . In respects with their demands, even though there no given that a child’s emotional and physical demands are best met by the female parent, the instance jurisprudence has showed a penchant for maintaining immature kids with their female parent [Re S ( a child ) ( Detention )] [ 16 ] . However, inRe H ( A Minor )[ 17 ] , it was held that the clip has changed and that many male parents were every bit capable as female parent of looking after little kids and this may take to a determination that in favor of Jason. Further, the facts that Sandra is under depression and her program to travel in with Craig, who is besides has anger direction issues will be taken into consideration under subdivision 1 ( 3 ) ( vitamin E ) by the tribunal. Last, the capablenesss of Jason and Sandra in run intoing Joyce and Tom’s demands will be considered every bit good. Here, it is likely that Jason would hold a good opportunity of obtaining a abode order as the facts that Sandra and Craig is get downing a new relationship and there is no grounds that Craig seems to suit the stereotype of the replacing male parent.
However, even if the tribunal grants a abode order in favor of Jason, the parental duty of Sandra towards Joyce and Tom will non be terminated. Harmonizing toRe R ( A Minor ) ( Contact ) ,Sandra will be granted a generous contact with Joyce and Tom because the tribunal is on the position that ‘it is a right of a kid to hold a relationship with both parents wherever possible’ . [ 18 ] The fact that both Sandra and Craig are under anger direction class will deny Jason’s claim that Sandra has a mental status that makes her inappropriate to be in contact with Joyce and Tom.
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Part 2
Introduction
In 1956, the construct of no-fault divorce was first put frontward by the Morton Commission in their study on the footing that the divorce jurisprudence prior to that day of the month has encouraged bitterness between the parties. [ 19 ] Such attack was taken by a series of Law Commission studies and led to the Introduction of Divorce Act 1969, which was subsequently consolidated to the legal proviso in usage today, viz. the Matrimonial Causes Act 1973. Section 1 ( 1 ) of MCA 1973 provides that unretrievable dislocation of matrimony is the lone land for divorce and this can merely be established if one of the five facts listed in subdivision 1 ( 2 ) of the MCA 1973. There are two no mistake facts that can be relied to set up divorce, viz. the two years’ separation with the respondent’s consent to the divorce [ subdivision 1 ( 2 ) ( vitamin D ) ] and the five years’ separation [ subdivision 1 ( 2 ) ( vitamin E ) ] . However, the facts that the figure of request under these no-fault facts are much lesser than the mistake facts of criminal conversation [ subdivision 1 ( 2 ) ( a ) ] and unreasonable behavior [ subdivision 1 ( 2 ) ( B ) ] raises a inquiry that whether the jurisprudence of divorce in England and Wales can truly be described as one of ‘no-fault’ ? This essay will reason that placing who is at ‘fault’ is still really much a characteristic of the divorce system in Wales and such component can be proved decisive in finding issues such as division of fiscal assets, kid contact and abode. Such attack was besides put frontward by John Eekelaar that the jurisprudence that the current jurisprudence of divorce is ‘deeply perverting by the jurisprudence itself’ as the persons are prevented from accessing to their legal rights conferred on them by jurisprudence. [ 20 ]
Application of ‘no-fault’ divorce
In order to obtain a speedy divorce, it is more likely that the parties to a relationship would be more willing to trust on fault- based divorce. The tribunals have taken a rigorous attack in leting a non-fault divorce and the grade of separation does non restrict to the normal impression of physical contact but it besides involves mental component. For case, inMouncerVMouncer,irrespective the facts that the parties were slept in separate sleeping rooms, it was held that they were populating apart as they continued to pass clip with their kids together. [ 21 ] At this point, it can be concluded that the jurisprudence has failed to supply an effectual method of no-fault divorce and this forces the party to a relationship to originate a divorce claim by avering mistake on the portion of the other party.
In the other words, the jurisprudence has failed to carry through its original aim that to enable the parties of a matrimony to stop their relationship with minimal resentment and ill will. Mistake remains as an of import exists that dominate the jurisprudence of divorce in England and Wales today. Despite its decisive function in set uping a land for divorce, the tribunals have besides emphasised ‘fault’ of the parties in finding the effects of a relationship dislocation.
Division of fiscal assets and Child contact and abode
Harmonizing to Thorpe J inDartVDart,the tribunal are given broad discretion to do orders which suits the demands of single instances, albeit guided by the assorted factors set out in the statutory model. With respects to the fiscal distribution on matrimony dislocation, subdivision 25 ( 1 ) of the MCA 1973 required the tribunal to take into history to all circumstance of the instance, whereby subdivision 25 ( 2 ) ( g ) provides that the behavior of the parties is one of the factors that should be considered. Even though, it is arguably that the debut of no-fault divorce by MCA 1973 reduced the significance of mistake in finding the distribution of belongings, but by reexamining the instance jurisprudence, the result of the reform is someway dissatisfactory. InKVK, the tribunal held that the hubby was non entitled to his wife’s assets due to the facts that he had sexually abused his wife’s grandchildren. [ 22 ] Besides, inHydrogenVH ( Fiscal Relief: Attempted Murder as behavior ), the married woman was given a greater precedence in the fiscal distribution because the hubby had attacker her with knives and was convicted of attempted slaying. [ 23 ] It is evident that the fact that a partner has behaved really severely will necessarily impact his or her entitlement to a greater precedence in the fiscal distribution, and this encourages farther animus between the parties. As a consequence, subdivision 25 ( 2 ) ( g ) was extremely criticised as it undermines the purpose of the jurisprudence to take inducement to do allegations of mistake in order to disassociate peacefully.
On the other manus, it must be noted that, by virtuousness of subdivision 2 ( 1 ) of Children Act 1989, the parental duty of the parties remains even after divorce. In finding the issue in relation to child contact and abode, the public assistance checklist set out in subdivision 1 ( 3 ) of CA 1989 plays a outstanding function in the determination devising. Within the checklist, there is no mention to the ‘fault’ component at the portion of the parents, but the tribunals are tend to allow the relevant order in favor of the ‘innocent’ parent with the construct that it will be the children’s best involvement non to remain or even in contact with the ‘fault’ parent, peculiarly in the instances of domestic force.
Decision
In decision, it is undeniably that the attack to disassociate in England and Wales can non be described as one of ‘no-fault’ as the ‘fault’ component is still playing a outstanding function in relation with the issues of divorce and its effects. However, we are non reasoning a reform towards a strictly no-fault divorce because, as harmonizing to Deech,this will give excessively much freedom to the person and give them a unlawful idea that divorce something can be obtained easy. [ 24 ] Alternatively, we are stating that the system of divorce should be balanced between a assorted mechanism with both ‘fault’ and ‘no-fault’ land for divorce [ 25 ] but non allowing the ‘fault’ characteristic dominate the whole system entirely.
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Bibliography
- Table of Cases
Ash V Ash [ 1972 ] 1 All ER 582
Clearly 5 Clealy [ 1974 ] 1 All ER 498
Dennis V Dennis [ 1955 ] P 153
Farnham V Farnham [ 1925 ] 133 LT 320
Goodrich V Goodrich [ 1971 ] 2 All ER 1340
H ( A Minor ) , Re ( 1980 ) 2 FLR 253
H V H ( Fiscal Relief: Attempted Murder as behavior ) [ 2006 ] 1 FLR 990
K v K [ 2010 ] EWCA Civ 125
Livingstone- Stallard V Livingstone- Stallard [ 1974 ] Fam 47
Mouncer V Mouncer [ 1972 ] 115 SJ 327
O’Neill v O’Neill [ 1975 ] 1 WLR 1118
R ( A Minor ) ( Contact ) , Re [ 1993 ] 2 FLR 762
Richards V Richards [ 1972 ] WLR 1073
S ( a child ) ( Custody ) , Re [ 1991 ] 2 FLR 388
Sapsford V Sapsford [ 1954 ] P 394
Serio V Serio ( 1983 ) 4 FLR 756
Stewart v Stewart [ 1973 ] 1 Fam 107
- Table of Legislation
Children Act 1989, s.1
Children Act 1989, s.2
Children Act 1989, s.3
Children Act 1989, s.8
Children and Families Act 2014, s.12
Marital Causes Act 1973, s. 1
Marital Causes Act 1973, s. 3
Marital Causes Act 1973, s. 25
- Secondary Beginnings
Books
Gilmore S and Glennon L,Hayes and Williams’ Family Law( 4Thursdayedn, OUP 2014 )
Articles
Deech R, ‘Divorce- A Disaster? ’ [ 2009 ] FLR 1048
Eekelaar J, ‘Family Law- Keeping us “On Message”’ [ 1999 ] CFLQ 387
Law Commission,Family Law: The Ground for Divorce( Law Com No 192 )
