Family Life and the Law - Essay Example

? Divorce Problem Question of Divorce Problem Question Introduction Marriage is considered as one of the most important institutions in the society as it is the basis upon which family is established; family is a basic unit of society. Ideally, marriage is considered to be enduring, secure, and comforting. However, the reality has been different especially in modern times as evidenced by increasing rates of divorce and separation. This trend has been attributed to higher satisfaction degree that partners in marriage expect from marriage (Herring, 2011, p. 105). Also, individualism, increased work pressures, and career aspirations have been cited as contributing factors to increasing rates of divorce. Numerous studies have shown that divorce can be very stressful and difficult as it not only affects the status of marriage but also have far-reaching implications on children and finances. Constitutions and legislations have made provisions for dissolution of marriage if there are sufficient grounds for that. In the United Kingdom (UK), the law on family, marriage, and divorce is covered under the Family Law Act 1996 (The National Archives). Based on this legislation and cases relevant to divorce, this essay will address a divorce problem facing Alsa in a bid to advise her on whether she would be successful in obtaining a divorce. Facts Bob and Alsa have been married for 10 years but have both been unhappy for the past four years. Bob works full time as an engineer and Alsa is a full time housewife. Alsa is becoming tired with Bob’s lack of assistance in the house; he constantly begins projects and does not finish them. His last project was to fit a new bathroom suite but after removing the old suite, he did not find time to fit the new one. Alsa feels that she cannot cope with his unfinished projects any longer and has moved into the spare room. Although Bob and Alsa continue to eat meals together, they rarely communicate but Alsa has continued to do all of Bob’s washing. More recently Alsa has started to engage in an extra-marital relationship with Ted. Issue Whether Alsa would be successful in obtaining a divorce? Rules Under Family Law Act 1996, divorce and separation is provided for. There is one ground to initiate divorce proceedings: irretrievable breakdown of marriage. The law has provided for five grounds for divorce which the court can rely upon as evidence that the marriage has irretrievably broken down and thus should grant divorce. The five grounds are: desertion; five years’ separation without consent; unreasonable behaviour; adultery; and two years’ separation with consent. In addition, the law has set threshold that has to be met before a husband or wife file for divorce: meet specific rules regarding how long one has lived in the country; prove that the marriage has irretrievably broken down; have a marriage that is recognised, legally, in the UK; and have been married for a minimum of one year. Analysis Considering the increasing rates of divorce and how they occur after a very short duration after marriage, Bob and Alsa can be considered to be have sustained their marriage for a relatively longer period (10years). However, both of them have been unhappy in the marriage for the past four years; an indication that the marriage has been experiencing some problems within that period. From the facts gathered, it seems Bob and Alsa marriage does not experience “serious” problems compared to other marriages whose partners are seeking divorce. Alsa’s main concern is that Bob does not provide assistance in the house as he constantly begins projects and does not finish them. Comparatively, this issue can be considered “lesser” in marriage and that which can be solved using other avenues rather than the legal avenue. Since this issue does not touch entirely on the fundamentals of marriage, services of a counsellor, church priest, or a family friend can be sought to resolve it (Probert, 2007, p. 65). Besides, there are aspects that show that this marriage still enjoys some basic fundamentals of marriage and cannot be said to have “irretrievably broken down”. This assertion is evidenced by the fact that Bob and Alsa continue to eat meals together, and even though they rarely communicate Alas has continued to do all of Bob’s washing. As such, key elements of marriage are still available thus implying that it can be retrieved using non-legal means. However, it seems that Alsa has is ready and willing to “walk out” of the marriage as she can no longer cope with Bob’s unfinished projects. Also, the fact she has started to engage in an extra-marital relationship with Ted is a proof that she no longer wishes to uphold her marriage vows; in other words, she is not interested in her current marriage. It is against this background that it is necessary to evaluate the possibility of her obtaining a divorce, successfully. Firstly, it is crucial to examine whether Alsa has met basic requirements as required by the UK law to file for divorce. Since she has been married for 10 years, she has met the first requirement that requires a person filing for to divorce to have been married for at least a year. Also, her marriage is legally recognised under the UK law. She has met the rule that requires a husband or wife filing for divorce to have lived in the country for specific period of time. The most important requirement is that she has to show the court that her marriage has “irretrievably broken down” (Oldham, 2011, p. 151). This requires her to specify her ground(s) for divorce. It is important for Alsa to know the grounds for divorce that can apply in her situation. Therefore, these grounds are briefly described. The first ground of divorce that can be used is adultery; this ground applies if a husband or wife has been involved in sexual relations with an outside party of the opposite sex. However, it should be noted that such a relation should have taken place and the party accused admits it (Oldham, 2011, p. 263). The second ground for divorce is unreasonable behaviour where the wife or husband behaves in undesirable way that the couple cannot continue living together in a marriage. The following amount o unreasonable behaviour: failure to provide attention or affection; verbal abuse; controls the other’s movement; and being physically violent (Oldham, 2011, p. 267-8). The third ground for divorce is desertion; it can be a reason for divorce if it can be proved that a wife or husband has left another without a good reason, for a period exceeding two years, left with the aim of trying to end the marriage, or without another’s agreement. The fourth ground for divorce is living separately for period exceeding two years with consent. This ground requires that for a married couple to get a divorce they should have lived apart for more than two years with consent. They both have to agree to divorce. The final ground for divorce is living apart for five years without consent; a husband or wife can apply for divorce without the consent of the other (Probert, 2007, p. 124). So, what is the most appropriate ground for divorce that applies in Alsa’s situation? Unreasonable behaviour will be the most appropriate ground for divorce in this situation. To obtain a divorce on this ground English law maintains that: one of the parties to the marriage has behaved in a manner that is unreasonable that the other party finds unbearable to live with her or him; and that the marriage has irretrievably broken down, as noted in the case of Birch v Birch (Oldham, 2011, p. 197). This ground is sufficient as Alsa insists that her husband does not assist in the house, a situation she considers amount to lack of attention and affection. She finds the behaviour of her husband to fail to finish projects that he has already started intolerable and as a result she cannot continue living with him. Alsa should note that although sometimes it is difficult to prove this ground, the standards set by the courts on this ground are not demanding. As such, it is not normally extremely difficult to satisfy the court that the marriage has irretrievably broken down based on this ground. The case of Livingstone-Stallard v Livingstone-Stallard showed that the courts have low threshold in determining whether parties should reasonably be expected to continue living together (Herring, 2011, p. 113). The cases of Buffery v Buffery and O’Neill v O’Neill in the Court of Appeal further proved this assertion as it was argued that a party in marriage with unreasonable behaviour cannot be reasonably expected to live with another, if the whole circumstances, personalities, and characters are taken into account (Herring, 2011, p. 112). Similarly, she can argue that the fact that Bob does not provide assistance in the house and that he constantly begins projects and does not finish them is a sign that he lacks attention and affection in the marriage. Failure to provide attention or affection to the other party in marriage amounts to unreasonable behaviour which is a ground for divorce (Probert, 2007, p. 109). As decided in the case of Thurlow v Thurlow the test of unreasonable behaviour includes the court taking into consideration not only the standards of behaviour in marriage, but also the obligations required by a party in marriage. Bob’s lack of assistance in the house by constantly failing to finish the projects he has began amounts to failure to meet his obligations as a husband. Also, in the same case of Thurlow v Thurlow, it was seen that a divorce can be granted on unreasonable behaviour grounds if there is evidence of continued condition of suffering by the respondent (Herring, 2011, p. 113). Conclusion Yes, Alsa would successfully obtain a divorce. As noted in the analysis part, Alsa has met all the fundamental requirements for filing a divorce. Additionally, she has sufficient ground for divorce. Unreasonable behaviour on the part of her husband, Bob, is a sufficient ground for divorce as Bob’s behaviours makes it intolerable for Alsa to continue living with him. Bibliography Herring, J, 2011, Family Law, 5th edition, Great Britain: Pearson Education Limited. Oldham, M, 2011, Blackstone’s Statutes on Family Law 2010-2011, Oxford: Oxford University Press. Probert, R 2007, Family Life and the Law: Under One Roof, Ashgate Publishing Limited The National Archives, 2011, Family Law Act 1996, Available: http://www.legislation.gov.uk/ukpga/1996/27/part/II (Accessed: 23 April, 2012). Read More