Barry and Sue: Family Law - Term Paper Example

Even though in family law divorce is usually one of the option in an event of irretrievable breakdown of relationship between married couples, any decision or action should, in initial stages, not lead towards this option. Divorce is considered the last option and that is why it is only allowed in court if there are reasonable assertions that there is irretrievable breakdown of the marriage relationship. Sue’s decision of wanting Barry out can be a major ingredient in series of events that may lead to divorce.

Therefore, it is important that Sue consider other options of dealing with her situation before having Barry out of the flat. As noted in the case of Dolan v Corby [2011] EWCA Civ 1664, one marriage partner cannot have the other partner out of their dwelling- house or home if the marriage status between them persists.2 This can only happen if the marriage has been dissolved and the court has decided which of the partner has the right to remain in the matrimonial dwelling- house or home. As such, Sue cannot have Barry out of the flat since each of them has a right to occupy the matrimonial dwelling- house (flat) as long as their marriage persists.

Family Law Act 1996, Section 31 has provisions that grant rights for married partners to occupy matrimonial or civil partnership home. It was decided in A v A [2004] EWHC 142 (Fam) that each partner in marriage has a right to occupy matrimonial dwelling- house until the status of marriage changes through divorce.3 Indeed, Sue’s wish to have Barry out of the flat may not materialize, legally. This is because there are legal provisions that make such attempts difficult to execute. However, the fact that Sue needs protection from domestic violence cannot be disputed.

As a matter of fact, she needs an urgent protection in order to ensure that she does not continue to suffer emotionally and physically as a result of violence meted on her by Barry. Since having Barry out of the flat may be an inappropriate decision considering that Barry is a registered disabled, Sue should consider other legal actions that may be more appropriate and not counterproductive to their marriage and disability condition of her husband. Injunction actions would be the most appropriate option for her in this situation.

She should seek an injunction from the court that requires Barry to refrain from violent acts against her. As stated in R v Curtis [2010] EWCA 123), injunction seeks to protect the one party in a relationship from specific acts of the other party that are deemed to cause harm or injuries.4 If Barry does not comply with the injunction, he would face civil or criminal penalties and may be required to accept sanctions or pay damages or even prison sentences as decided in Accent Foundation Ltd v Lee [2007] EWCA Civ 665.

5 Cohabitants- Section 36 Section 36 of the Family Law states that “a cohabitant or a former cohabitant with no existing right to occupy the home may seek an occupation order against the other.”