Chapter 4- Ending Relationships Flashcards by Rachel Ward

What percentage of marriages end in divorce?

42%

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What is Nullity?

If a marriage is subject to an imperfection to make it void, or voidable.

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What does s56 of the CPA 2004 cover?

Separation orders

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What does S1(1) Matrimonial Cause Act state?

Only grounds for divorce is that the marriage has broken down irretrievably (unbaked to be fixed).

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How is irretrievably established by S1(2) Matrimonial Causes Act (5 points)

Adulterated and intolerability
Respondents behaviour
desertion
Two years separation - consent to divorce from respondent
Five years separation- consent not needed from respondent

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What is the relevant section for civil partnerships in relation to S1(2) MCA 1973?

S44

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What is the definition of adultery?

Voluntary sexual relations between a man and woman who are not married or in a civil partnership

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Cleary v cleary

Application for divorce must show respondent is intolerable to live with. Does not however have to be as a result if adultery.

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How can intolerability be proven?

Assertion of the applicants claims.

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S1(2) MCA is there a time limit on adultery application by the courts for divorce.

Applicant must apply for divorce within 6 months of the adulterous act or it can not be relied upon if applicant is still living with respondent for 6 months or even for short periods amounting to 6 months.

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S1(2)(b) MCA states…

Respondents behaviour can be cause for divorce

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Test to establish if applicant has grounds for divorce under responders behaviour

Livingstone-Stallard v Lingston Stallard. Court must establish whether a reasonable person would decide that the applicant cannot reasonably be expected to live with respondent.

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Case example bad behaviour

Birch v birch - husband showed bullish behaviour towards wife

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S2(3) MCA states

If applicant continues to live with respondent through bad behaviour for UP TO 6 months it will not consider in divorce grounds.

If applicant continues for more than 6 months, it may be granted however living conditions will be taken into account by the court

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To divorce by desertion, when does the period of 2 years commence.

Once the applicant has presented their application.

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Which act applies for divorce without 2 years of living together?

S1(2)(D) MCA 1973

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Which case reflects a successful separation for divorce after 2 years with consent?

Fuller v Fuller

What two things must happen in the marriage for divorce with consent to occur.

Living apart continuously for 2 or 5 years. 2 years with consent to separate.

One party must have come to conclusion marriage is over (Santos v Santos)

What is the exception to the 2 year period of separation with consent?

The parties can break the 2 year separation providing its for a period of 6 months or less

What does S3 MCA state?

Neither party can apply for divorce within 1 year of marriage. Any grounds for divorce that may have occurred within the year can still be relied upon

What is the equivalent provision for civil partners of S3 MCA?

S41 CPA 2004

3 instances where a court will refuse a divorce?

S5 MCA applications based on living apart for 5 years.

Dissolving marriage would cause grave financial or other hardship

It would be wrong in all other circumstances to to dissolve marriage.

Which case reflects how difficult it is to use ‘other hardship’ as a means to prevent a divorce.

Rukat v Rukat

What is s10(2)MCA or S48 CPA used for

Used to delay the granting of a decree absolute if respondent believe financial provisions have not been made.

What actions must the court take if S10(2) MCA or S48 CPA is raised

Ensure that they do not finalise the divorce until they are satisfied that reasonable financial provisions have been made.

What is divorce reform?

It is believed there are not enough ‘Non-Fault’ grounds for divorce which an application may be made using. Owens v Owens

What is a void and voidable marriage

Void - never existed | Voidable- existed by now decreed void by courts

When is a decree of nullity necessary?

Not for void marriages by recommended, will be granted if marriage is deemed voidable

What is the definition of a void marriage?

Where parties lacked capacity to marry, or knowingly and willingly failed to comply with certain formalities.

Which grounds can either party use to make a marriage voidable?

Marriage is not consummated One party did not consent either under duress, mistake or unsoundness of mind One party was suffering from mental health disorder which prevented them from giving consent Either party got an interim GRC after the marriage

Which grounds can ONE party use to make a marriage voidable?

One party refuses to consummate marriage, willing party can apply One party suffered from STI at the time of marriage and other party wasn’t aware At time of marriage one party was pregnant, and not by the other party One of the parties had legally acquired a gender prior to the marriage

Which two grounds to make a marriage voidable do not apply to CPs and SS marriages

Non consummation STIs pre marriage

When does lack of consent occur?

When parties are of unsound mind Under the influence of alcohol or drugs English is not their first language and they do not have understanding they are entering into a legal marriage If parties are forced into the marriage.

Which case reflects that duress is as a result of fear caused by threat, of immediate danger to life limb or liberty?

Szcheter v Szcheter

Which case do the courts deem as the right case when deciding the effects of duress with no consent?

Hirani v Hirani - whether applicant has been overborne

When will court be barred from awarding decree of Nullity?

Applicant knew they could have marriage annulled and didn’t tell respondent If STI or pregnant issues aren’t brought within 3 years If GRC issues aren’t brought within 6 months If applicant knew about STI, pregnancy and GRC prior to marriage

Under S16 MCA when is a voidable marriage treated as annulled?

From final date of decree of Nullity. Marriage will be treated as existed until said date.

What are the consequences for decree of Nullity,

Any will drafted when marriage was vaof will then become void and spouse will not be entitled to share of will. Either parties can apply for financial orders under MCA

How can judicial separation be granted

Under S17 MCA under proof of any of 5 facts from S1 MCA Can be granted in first year of marriage

What are the consequences of Judicial separation?

Parties are relieved of duties to cohabit, but cannot remarry. If there is not a valid will, one party will not inherit. Does effect existing wills. Court can make property and financial orders