Divorce and Ancillary Relief and Custody or Maintenance Matters - Essay Example

?Family Law Question Cheryl Murdock Address Dear Mrs. Murdock, RE: Divorce and Ancillary/Interim Relief and Custody/Maintenance Matters Pursuant to your instructions we have reviewed the relevant facts, circumstances and the relevant law. We would advise that in the interest of time, cost and efficiency that your divorce should as far as possible, proceed on the less contentious grounds and that all efforts should be made to settle the ancillary matters prior to seeking a decree absolute. The reasons for our advice are set out in detail below. Grounds for Divorce Since you and the respondent have been married for 12 years you are eligible for a divorce. Pursuant to the Matrimonial Causes Act 1973 (as amended) a divorce petition may only be filed if the parties have been married for at least one year prior to the filing of the divorce petition.1 On the facts presented, it appears that there are two facts that can potentially substantiate the divorce ground that the marriage has irretrievably broken down. The only ground for divorce is the irretrievable breakdown of the marriage which must be proven by at least one of five facts.2 Adultery is one of the five facts capable of proving that the marriage has irretrievably broken down.3 However, using adultery to substantiate that the marriage has irretrievably broken down may be problematic for two specific reasons. First, the allegation that Mr. Murdock has been engaged in several adulterous relationships in the past with the last one ending at least 8 months previously is statute barred. Pursuant to Section 2(1) of the Matrimonial Causes Act 1973, a party is not entitled to plead adultery, if having found out about the adultery, the party seeking to rely on adultery continued to live with the other party for at least 6 months.4 Thus, if Mr. Murdock wanted to rely on your adultery with his son Stuart from several years earlier, he would be time barred since he continued to live with you for more than six months after learning of the affair. However, the court may disregard this fact if the adultery is such that the petitioner finds living with the respondent intolerable. Or the adultery may be pleaded as evidence of the breakdown of the marriage or as evidence that the marriage has irretrievably broken down.5 The fact that the adultery has been ongoing for a number of years and the respondent is believed to be currently conducting a sexual affair with his office manager may be sufficient for proving that the pervious adulterous relations are statute barred, are nonetheless intolerable. Even so, the alleged current adulterous relationship can constitute a second fact capable of supporting the ground of the irretrievable breakdown of the marriage. The problem with pleading adultery is that the courts require proof of the adultery. The standard is based on the civil standard which requires evidence showing that on a balance of probabilities, the respondent has committed adultery. Thus, an admission of adultery by the respondent would be sufficient proof.6 At this point, Mr. Murdock has neither admitted or denied the adultery with his office manager, but simply stated that it was none of your business. He may however decide to admit to adultery since he states that he no longer wants to remain married to you. Aside from adultery, there appears to be sufficient evidence of behaviour pursuant to Section 1(2)(b) of the Matrimonial Causes Act 1973. Section 1(2)(b) provides that the breakdown of a marriage can be proved if the court is satisfied that: The respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.7 This section has been interpreted to mean that it is not so much the respondent’s behaviour that concerns the court, but the petitioner’s feelings relative to living with the behaviour.8 Thus the fact that you have suffered depression since giving birth to Jack, the first child of the marriage, suggest that you might find living with the physical and verbal abuse intolerable and thus provide proof that the marriage has broken down irretrievably. The main question is whether or not you can be expected to live with Mr. Murdock. It was stated in Birch v Birch [1992] 1 FLR 564 that the answer to this question is tested subjectively. Thus the question is: can the petitioner reasonably be expected to cohabit with the respondent and not has the respondent’s behaviour been unreasonable. The court does not look at how reasonable married parties should behave and tolerate, but the actual spouses before it.9 Therefore if both parties behave in the same way, it might be expected that they should be able to tolerate each other’s behaviour and can live together.10 Since the courts are concerned with the spouses actual tolerance and their specific characteristics, your depression which became progressively worse over time will be entirely relevant to determining whether or not you are reasonably expected to live with Mr. Murdock. The test as restated in O’Neill v O’Neill [1975] 1 WLR 1118 is: Would any right-thinking person come to the conclusion that this husband has behaved in such a way that his wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and he characters and personalities of the parties?11 Moreover, the fact that you continued to live with Mr. Murdock after the verbal and physical assaults will not be a barrier to pleading behaviour as a fact substantiating the irretrievable breakdown of the marriage.12 In all the circumstances it would appear that of the two grounds, the less contentious is adultery. However, since you are concerned about having a place to live, it is best that you proceed on behavior to substantiate the irretrievable breakdown of the marriage. As will be revealed below the court can make an order for Mr. Murdock to vacate the family home. Ancillary and Interim Relief and Custody Interim Relief Although the matrimonial home is held in Mr. Murdock’s name, you still have the right to remain in the home pursuant to Section 30 of the Family Law Act 1996 (as amended). Your right to remain in the home follows from the fact that the house is matrimonial property in that it was purchased with the intention of making it a family home.13 Based on Mr. Murdock’s history of physical abuse, you may apply for a non-molestation order pursuant to Section 42 of the Family Law Act 1996. The order will prohibit the physical abuse experienced in the past. A non-molestation order can also instruct Mr. Murdock to cease and desist any other abusive or harassing conduct.14 In determining whether or not to make a non-molestation order the court will look at all the facts and circumstance inclusive of the necessity of ensuring the applicant’s well-being, health and safety. Since health can also refer to mental health, your depression will be relevant to a court’s consideration of whether or not to make a non-molestation order. A breach of the order is a criminal offence for which Mr. Murdock could face a custodial sentence for up to 5 years.15 As a wife without title to the matrimonial home with home rights and as a result of the grounds for a non-molestation order, you are entitled to apply to the court for an occupancy order under section 33 of the Family Law Act 1996.16 The court may make one of two orders: an order for you to occupy the matrimonial home or an order for you to occupy a part of the home. Likewise the court may order Mr. Murdock to vacate the home or a part of the home.17 In determining whether or not to make an occupation order the court will take account of both parties needs for housing and their ability to secure housing. The court will also take account of the housing needs of the children and the available resources of the parties.18 Mr. Murdock appears to have control of the film company and its income and assets and thus is in a better position to find alternative housing. It would also appear that should you be forced to vacate the family home, you will not have alternative housing. If and it is anticipated that you will have custody of the children, particularly since they are children of tender years, the court will take their housing needs into consideration which cannot be segregated from your housing needs. The court will also take account of the consequences of not making an order and specifically the consequences of your health, safety and/or well-being or the health, safety and/or well-being of the children. The court will also take into consideration the conduct of the parties toward each other.19 Mr. Murdock’s history of violence is therefore relevant and his warning that he intends to leave you without the children. These factors are exacerbated by the fact that you suffer from depression. By taking the children it would appear that he intends to ensure that you get nothing with respect to financial relief and/or a property settlement as the custodial parent will typically be entitled to occupy the matrimonial home and maintenance support for the children. It is also apparent that Mr. Murdock’s conduct and the pressure of not having a place to go only complicates your depression, a factor that court is entitled to take into consideration. An order for maintenance can be made pending the dissolution of the marriage pursuant to Section 22 of the Matrimonial Causes Act 1973.20 The order will direct Mr. Murdock to make regular payments to you for your support until such time as the divorce is settled. In making such an order the court will take account of both your means and Mr. Murdock’s means. Since you have no other means of income outside of the film company and Mr. Murdock appears to have control of the company, he will likely have to make maintenance payments to you pursuant to Section 22 of the Matrimonial Act 1973. Custody In making an order pertaining to the residence of upbringing of a child under the age of 18 the child’s welfare will be of paramount concern.21 A welfare checklist is contained in Section 1(3) of the Children Act 1989 and will guide the court with respect to issuing custody. In this regard the court will take account of the children’s feelings and wishes; their physical, mental and educational needs; and the consequences for the child if their lives change.22 The children are very young and it appears that since Mr. Murdock plays the most active role in the company, the children’s direct needs are attended to by you. Moreover, given the age differences between the parents, the younger parent is perhaps in a better position to attend to the many needs of the children. Moreover, there is a presumption, albeit rebuttable, the natural parent (mother) is the preferred custodial parent.23 A Residence Order can be applied for to take effect until the children attain the age of 16.24 This is important since the interim occupancy order is only applicable for the duration of the divorce proceedings. Ancillary Relief The courts may make any one or more orders for ancillary relief pursuant to Sections 22-24A of the Matrimonial Causes Act 1973. The orders can be made for the petitioner and/or for maintenance payments for the children of the marriage. The orders can be for either periodical payments or secured periodical payments or for a lump sum payment if a clean break is the desired outcome. Section 25A of the Matrimonial Causes Act 1973 provides that in deciding to make an order pursuant to Sections 22-24A, the court will take account of all the circumstances of the case, with the welfare of the children being a priority.25 In determining the appropriate sum the court will take account of all the circumstances of the case. In general the court will attempt to achieve an outcome that is fair, meets the needs of the parties and compensates the parties for their contributions to the marriage and the matrimonial assets.26 In particular the court will take account of the parties’ income, “earning capacity and other financial resources”.27 The courts will take account of the current income, earning capacity and other financial resources and the likely status of each of these factors in the future. You stated that your only work experience has been with the Film company. Thus in dividing the company, the court will likely make an order for either the sale of the company and just division of the assets or make an order for Mr. Murdock to pay you a fair sum reflecting your contribution to the company’s success. The courts will also take account of each of the parties’ financial “needs, obligations and responsibilities” now or in the future.28 The court will likely take account of the fact that Mr. Murdock will have to make other living arrangements. However, the courts will have to balance that against the fact that you no longer have access to Mr. Murdock’s income and the standard of living that he provided you. The standard of living is another factor that the courts will consider. The courts will also look at the parties’ ages and the length of time that the parties were married.29 You are half Mr. Murdock’s age and have been married to him for 12 years, thus for most of your adult life you have been dependent on Mr. Murdock and his company to which you contributed your energies and efforts. For that you will be compensated. Other contributions such as looking after the children and caring for the home will also be compensated for. Similarly, the courts will take account of any mental or physical disabilities.30 Thus your depression will be a factor weighing in your favour. Finally, the courts will take account of any benefit that you will lose the opportunity to secure as a result of the divorce.31 Since you will likely lose the opportunity to participate in the film company and thus share in its success, the courts will compensate you for that loss. Draft Divorce Petition In the Family Court Case No. 123 Date: BETWEEN Cheryl Murdock nee Coley Petitioner And Rodney Murdock Respondent PETITION I Cheryl Murdock, nee Coley make this application for a divorce and provide the following details in support of this application. Part I My name is Cheryl Murdock, nee Coley and I currently live at 505 Surrey Quays, London, SQ4. I am a female and my date of birth is 15 September, 1979. I am a housewife. The Respondent’s name is Rodney Murdock and he also lives at 505 Surrey Quays, London, SQ4. He is a male and his date of birth is 12 November, 1947. The Respondent is a company director. Part 2 On 20 September 1999 Cheryl Coley married Rodney Murdock Register Office in the District of Redbridge in the London Borough of Redbridge. A certified copy of the marriage certificate is attached as Exhibit CM. Part 3 The Respondent and I last lived together as husband and wife at 505 Surrey Quays. The court has jurisdiction to hear this case under Article 3(1) of Council Regulation (EC) No. 2201/2003 of 27 November 2003. The Petitioner and Respondent are both habitually resident in England and Wales. Part 4 There are no other proceedings in any court in England and Wales or elsewhere. Part 5 This petition for divorce is on the ground that the marriage has irretrievably broken down and I rely on the following facts in support of my application: The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. Part 6 The respondent has habitually committed adultery. When confronted about his latest affair, the Respondent struck the Petitioner in the face and told the Petitioner that it was none of her business. The Respondent has subsequently hit the Petitioner at least twice since that time by twisting the Petitioner’s arm and kicking her. Part 7 There are two children of the marriage, namely; Jack Murdock, a male, born 3 May 2001 and Ashley Murdock , a female, born 14 May 2008. A statement of arrangements or proposed arranges for the children of the marriage who are under age 16 and are in pre-school and school is attached. There is one child of the respondent who is not a child of the marriage. The child is Stuart Murdock and he is over the age of 18. Part 9 I am represented by a solicitor in these proceedings and all documents relating to me should be served on my solicitor at Firm, situated at London UB8. Telephone No: Fax No. This is also my address for service. The Respondent’s address for service is: 505 Surrey Quays SQ4 The Petitioner Therefore prays: 1. That the marriage be dissolved. 2. That the Respondent be condemned in the costs. 3. That the Petitioner be granted the following Financial Orders: An order for maintenance pending suit. Lump sum order Property adjustment order A periodical payments order for the maintenance of the children. An order granting the Petitioner custody of the children with reasonable access and visitation to the Respondent. Signed: Cheryl Murdock, Date. Question 2 Advice to Louise Succession to Murray’s estate is governed by three primary statutory provisions. These statutory provisions are the Wills Act 1837 which governs the rules and conditions necessary for the execution of a valid will; the Administration of Estates Act 1925 which governs succession in the event the will is invalid or there is no will; and the Inheritance (Provision of Family and Dependents) Act 1975 which governs who may and in what circumstances claim succession to Murray’s estate or for adjustments of the succession. Although Murray’s will appears to be valid, it will be terminated because it was made prior to his marriage. According to Section 18 of the Wills Act 1837, any will or codicil executed after 31 December 1982, will be revoked after the testator marries unless there is evidence that the will was made in contemplation of the marriage.32 In a typical case, the will states that the testator is making his/her will in contemplation of marriage to a named individual. In other words, the will is only valid if it specifically indicates that it was made in contemplation of his marriage to Doreen. Anything less will not be sufficient to render the will valid on the grounds that it was made in contemplation of marriage to Doreen. Murray was married to Doreen for 18 months immediately preceding his death and the will was made three years ago. All indications are therefore that the will was made approximately one and half years before Murray and Doreen were married. Thus Murray’s marriage was subsequent to the will and since there is no evidence that Murrayy made the will in contemplation of his marriage to Doreen, the marriage revokes the will. There is no evidence on the facts of the case for discussion that Murray and Doreen even knew each other at the time the Murray executed his will. Since the will is revoked by Murray’s subsequent marriage his estate will devolve as if he had died intestate pursuant to the Administration of Estates Act 1925 (as amended). Only the property that is capable of being included in a will can be inherited under the rules of intestacy. Therefore, the account in Doreen’s name for 8,000 pounds will not form a part of Murray’s estate since he cannot dispose of property that is not his. The joint bank account will not be disposed of in the will because it is a joint tenancy and in such cases ownership is subject to survivorship. Property held under a joint tenancy is not severed upon the death of one of the joint tenants. If a joint tenant dies the doctrine of survivorship arises so that the “surviving joint tenant” becomes the sole absolute owner of the property subject to the joint tenancy.33 In other words when one party to a joint tenancy dies the surviving party inherits the whole of the joint tenancy’s property, unless the property is subject to a trust. In such a case, the survivor will hold the legal title subject to the trust. However, there is no evidence on the facts suggests that the joint bank account was subject to a trust. Thus the joint bank account cannot be included in will and thus may not be disposed of pursuant to the rules of intestacy. If the property owner dies leaving a spouse, the spouse will be designated next-of-kin.34 As next-of-kin, Doreen will be entitled to claim all chattels but not businesses, money or shares. Doreen however, is entitled to a dower of 250,000 pounds and a life interest in the remainder of Murray’s estate, since there are children surviving Murray, namely: Soroya and Dean. If there were no children surviving Murray, Doreen would have been entitled to claim 450,000 pounds in terms of the value to Murray’s estate and only then would the remainder of the estate be distributed to other causes, expenses and individual entitled to claims in Murray’s estate. However, since there are children, Doreen is only automatically entitled to 250,000 pounds in terms of the value of Murray’s estate. The remainder of the estate is divided among the children of the intestate.35 It therefore follows that Doreen will not be able to claim Murray’s account. The account will be divided between Soroya, Murray’s daughter and Doreen’s son Dean since as a minor, he became a child of the marriage and thus is regarded in law as the intestate’s son. The house which was owned jointly as tenants in common will not automatically devolve to Doreen as the sole owner. Murray’s half interest in the house will be divided between Soroya and Dean. However, if Doreen was a dependent of Murray’s and is not satisfied with the way that Murray’s estate divides his property pursuant to Administration Act 1837, she may apply to the court for a variation of the distribution of Murray’s estate.36 As a spouse living with the intestate at the time of his death, Doreen is eligible to apply to the courts for a variation of the distribution of Murray’s estate.37 Soyora and Dean may also apply to the court for a variation of the distribution of Murray’s estate. However, since Dean was not living with Murray for at least two years just prior to Murray’s death, he is not eligible for making such an application.38 Soyora will unlikely succeed for the same reason. Moreover, as an adult, such orders are difficult to substantiate particularly when the adult is not physically or mentally disabled.39 My advice to Louise would change if Doreen died within three weeks of Murray’s death. The spouse of a deceased person who dies intestate will only take the full estate if she/he survives the intestate for at least 28 days after the intestate’s death.40 Murray’s estate will be divided equally between Soyora and Dean as the next-of-kin.41 Unless, Doreen left a valid and enforceable will, her estate will devolve pursuant to the rules of intestacy and thus will be given to Dean. Soyora is not a child of the marriage since she was already an adult with Murray and Doreen wed. Therefore Soyora is not eligible for inheriting any part of Doreen’s estate. Bibliography Textbooks Probert, Robert. Family Law in England and Wales, (The Netherlands: Family Law in England and Wales, 2011). Cases Ash v Ash [1972] Fam 135. Bannister v Bannister [1980] 10 Fam Law, 240. Barnacle v Barnacle [1948] P 257. Cleary v Cleary [1974] 1 WLR 73. Espinosa v Bourke [1999] 1 FLR 747. Gully v Dix [2004] I FCR 453. Miller v Miller; McFarlance v McFarlance[2006] UKHL 24. O’Neill v O’Neill [1975] 1 WLR 1118. Pheasant v Pheasant [1972] Fam 202. Re KD [1988] 1 All ER 577. Vaughan v Vaughan [1973] 1 WLR 1159. Statutes Administration of Estates Act 1925 (as amended). Children Act 1989 (as amended). Family Law Act 1996 (As Amended). Inheritance (Provision for Families and Defendants) Act 1975. Matrimonial Causes Act 1973 (As Amended). Wills Act 1837. Read More