Analysis of Family Law - Case Study Example

Family Law a) When advising Dorothy about divorcing George there would be several things I would inform her before she proceeded with the divorce. The first thing on the agenda would be to apprise Dorothy of the divorce laws and procedures of the United Kingdom. This information would include what is actually necessary to receive a divorce. For example; 1.3 Before granting a decree of divorce or judicial separation, a United Kingdom divorce court needs to be satisfied that the marriage it is being asked to dissolve is in fact valid and subsisting. It is not therefore necessary, when considering the validity of a current marriage, to see documentary evidence of a previous marriage where such a marriage has been terminated by a divorce (or decree of nullity in respect of an avoidable marriage) granted in the United Kingdom. (Morley 2005 International Law) At this point I would explain to Dorothy that in order to proceed she would be required to show that the marriage is unsalvageable and the both her and George agree that the marriage should be dissolved. This is not to say that if George does not want a divorce, Dorothy will not be able to file for one. What it means is that George could contest it and if that situation arises she will need support to present to the court to prove that there are grounds and conditions for the divorce. I would also advise Dorothy to talk with George and pursue coming to an agreement prior to filing for the divorce. This is because if the divorce is somewhat amicable and the property and assets have been discussed and there will not be a fight over the divorce will go more smoothly both in court and for them personally. The following law pertains to the circumstances being somewhat amicable: 1.7.1 The decree nisi is the court's decision to grant a divorce provided that nothing comes to light which may alter the Judgement. The certificate given as a result of this decision shows the period of time that is to be allowed for this purpose. If nothing comes to light, the decree absolute is issued at the end of the waiting period. The decree nisi is therefore a temporary document only and the decree absolute must always be seen. (Morley 2005 International Law) I would advise Dorothy that due to the length of her marriage the assets of both her and George would in most circumstances be split down the middle. However if they come to an agreement regarding particular property or assets I would strongly advise Dorothy to talk it out with George and when they reach an agreement on how the property and assets should be divided to contact me, her divorce attorney, so that I can prepare the proper legal document indicating the property and asset agreement. I would also advise Dorothy to include anything personal or sentimental even though she may not think it of value. In order to ensure receipt of items of sentimental or other value she must notify me so that I could include it in the formal legal documents. At this time I would also advise Dorothy that it would not be wise for her to assume any agreements made between George and herself would necessarily be kept and that any agreements made, of any kind for property, assets, sentimental items or anything else needs to be put into the divorce paperwork. After discussing all of this information with Dorothy I would then go over divorce conditions in detail and strongly advise her that the fact that she wants to make a fresh life for herself while she is still young enough to enjoy it is not a good condition. Divorce conditions include: In England & Wales obtaining a divorce requires a written application (called a petition) to the court by either the husband or the wife. Applications for divorce are dealt with by the County Court and spouses have to apply to that court for their divorce. The applicant has to prove that the marriage has broken down irretrievably and has to provide evidence of one of the five facts listed below: No application for divorce can be made until at least one year after the date of the marriage. However, evidence from the period within one year of the date of the marriage can be used to prove that the marriage has broken down irretrievably. (Hilldesley 1999) After discussing the conditions I would advise Dorothy to file for the divorce first. Even if her and George reach an amicable agreement regarding the divorce it is to her advantage to file first in the even that problems arise between her and George in the future. The grounds for the divorce would also be explained and discussed in detail with Dorothy. At this time I would strongly advise her not to list "wanting to enjoy and live life" as a major reason for the divorce. This is the time Dorothy would want to disclose that George is selfish, does not fulfil her needs etc. The law states that grounds for divorce are: (According to International Law webpage) In England & Wales the divorce law is contained in the Matrimonial Causes Act 1973. The sole ground for divorce is the irretrievable breakdown of the marriage. In order to show that the marriage has broken down irretrievably it is necessary to produce evidence of one or more marital faults. There are five faults as follows: i. that the other spouse has committed adultery and that the applicant finds it intolerable to live with him or her; ii. unreasonable behaviour, which means that the other spouse has behaved in such a way that the applicant cannot reasonably be expected to continue to live with him or her; iii. desertion, which means that the other spouse has left the applicant for a period of two years before the time of the application for divorce; iv. separation of the parties for a period of two years before the application for divorce (with the consent of the other spouse); v. separation for a period of five years before the application for divorce (without the consent of the other spouse). It is necessary to produce evidence of one or more of these faults, together with evidence that the person seeking a divorce can no longer live with their spouse.The court is required to inquire as far as is possible into the facts alleged by the applicant (petitioner) and into any facts alleged by the other spouse (respondent). If the court is satisfied on the evidence that the marriage has broken down irretrievably, a decree of divorce will be granted by the District Judge.The court can adjourn the proceedings at any time to allow the spouses to try to reconcile their differences and save the marriage.If the court is satisfied that the marriage has broken down irretrievably, it will first issue an interim decree "nisi". After a period of six weeks an application can be made to make the decree absolute. There is no time limit on an application for a decree to be made absolute.However, if the application for the decree absolute is lodged more than 12 months after the decree nisi, the applicant will be required to lodge with it a written explanation: giving reasons for the delay; stating whether they and their spouse have lived with each other since the decree nisi and, if so, between what dates; and stating whether, being the wife, she has given birth to any child since the decree nisi and, if so, stating the relevant facts and whether or not it is alleged that the child is or may be a child of the husband. The District Judge can require the applicant to file a sworn statement verifying the explanation she has given and can make such order on the application as the District Judge thinks appropriate. (Hildesley 1999 International Law) The division of property on divorce in England & Wales is governed by the Matrimonial Causes Act 1973. Section 24 of the Act allows the court, on granting a decree of divorce, nullity or judicial separation, or afterwards, to order that property should be transferred from one spouse to the other, or to a child of the family, or to another person for the benefit of a child of the family.(Morley 2005(Due to the fact that both and George and Dorothy are in their 60's child benefits do not apply. according to Hilldesley (International Law 1999) other provisions give the courts the power to order the making of periodical payments, to order the sale of property, to make orders in respect of pensions, to order single lump sum payments and other orders. The courts have discretion as to what orders they make in any particular case, to meet the demands of that case according to its particular circumstances.(*Hilldesley 2005 International Law) This is a provision in the divorce act that I will certainly apprise Dorothy of. Section 25 of the Act lays down various matters which the courts must consider in exercising their discretion. The first of these is the welfare of any child of the family under the age of 18 (Morley 2005) this does not apply to the Newman's however, there are other: the income, earning capacity, property and other financial resources which each of the spouses has or is likely to have in the foreseeable future; the contribution, both financial and other, made by each of the spouses to looking after the home and children is also considered the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future; the standard of living enjoyed by the family before the breakdown of the marriage; the age of each party and the duration of the marriage; any physical or mental disability suffered by either party; the contributions which each party has made, or is likely to make in the future to the welfare of the family; the conduct of the spouses, if it is such that it would be unfair to disregard it when considering how property should be divided; the value to each of the spouses of any benefit which that party will lose the chance of acquiring because of the divorce or annulment. (Hildesley 2005 International Law) After having apprised Dorothy of all the laws and acts concerning Divorce I will also advise her to carefully think her decision through and be sure of a divorce. I will advise Dorothy that she has been married many years and maybe she is bored. I will also ask her to talk to George, see how he feels, and see if they cannot come up with another option besides divorce. If not I will proceed with the paperwork. b) I would advise Paul that he can enter into a Civil Partnership with Carlton and this would make the relationship legal. According to Makin in 2002, a case involving Human Rights was the predecessor to the Civil Partnership Act of 2004. Makin reported "in 2002 the European Court of Human Rights, in Goodwin v. United Kingdom, a case concerning a transsexual's right to marry, interpreted Article 12 as securing the fundamental right of a man and woman to marry and establish a family. It emphasized that the second element is not conditioned on heterosexuality, and inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the provision's first element. The court also pointed out the importance of wording choice by the authors of the Charter of Fundamental Rights of the European Union: a deliberate omission of a reference to "men and women" in the Article 9, giving all citizens the right to marry and to found a family." (Makin 2003) I would apprise Paul of the fact that by making his partnership with Carlton legal they would share rights to property and all other things similar to a married couple. The Civil Partnership Act of 2004 states that "couples would not have to live together for a certain length of time to be eligible for the rights and if the partnership breaks up, there would be a formal court process for dissolving it." (Crown Copyright 2004. In addition this means that "same-sex couples will be entitled to a range of property rights, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner's children." (Crown Copyright 2004) Makin reported, "The term "gay marriage" is not used in the Bill, but the Civil Partnership Registration Scheme seems to have been designed to be as close to a marriage contract as possible. " (Makin 2003) As Paul's legal counsel I will apprise him of all of the rights and legal invoked However, this is something that both Paul and Carlton want to do so they have educated themselves on the Act already. No matter what the case is I will advise Paul that he will essentially be giving half of everything to Carlton. As well, half of everything of Carlton's will be his as anything they gain and acquire in the future will be split down the middle between the two of them because they will be recognized as a legal couple from the point of filing the Civil Partnership paperwork with the court and from that point on. c) Pauline is entitled to financial provisions depending on several factors. The largest source of her claim for financial provision is Bethany. The other would be the length of time that her and Robert were married and the difference in incomes between herself and Robert. The fact that she will be filing for divorce under the grounds of adultery-that Robert has admitted to-will help her financial provisions case. The first thing I will advise Pauline is to file for divorce and to file under the grounds that Robert has committed adultery and admitted to it. The divorce laws and advice I was able to give Dorothy in an earlier divorce case, will also apply to Pauline's case. Although the circumstances are different, the advice I give will be similar. The important thing regarding the case of Pauline and Robert is that financial provisions are set forth so that Bethany is properly cared for after Pauline and Robert's divorce becomes final. The financial provisions set forth for the divorce will stand so tit is very important that the proper financial provisions are taken advantage of and set forth prior to the finalization of the divorce. According to the divorce laws that govern the United Kingdom adultery is grounds to tile for divorce. The assets that Robert owns under a private name without Pauline will be discussed with her after the adultery issue is examined. According to Pelusa "Infidelity (adultery) is the cause of a third of all marriage break-ups." (2004) This means that adultery is something that is often grounds for a divorce so the rules and laws governing a marriage that has broken up due to adultery are clearly defined. According to Morley "the UK divorce is governed by the Matrimonial Causes Act of 1973. The actual mechanics of getting a divorce are relatively straightforward however there can be difficulties with related issues of money and children. In order to get a divorce you must show that the marriage has broken down because of either: 1. Adultery by one's spouse. 2. Unreasonable Behaviour by either party. 3. Your spouse has deserted you for a continuous period of at least two years. 4. You have lived apart for at least two years and your partner consents to a divorce. 5. You and your partner have lived apart for more than five years (Morley 2005 International Law) Since Pauline and Robert have been living together none of The other conditions apply unless she wants to use unreasonable behavior by either party as a condition. However, I would advise Pauline to stay with the condition of adultery, especially since Robert openly admits to it and proving that adultery occurred is not an issue. When Pauline agrees to file for divorce under the grounds of adultery, we can move forward and work on the financial provisions portion of the divorce. According to Morley "Divorce affects 150,000 young people each year in the UK". (2005) This figure has the same relevance as the adultery condition. This means that the financial provisions involving a child in a divorce are not something new to the courts or the legislation. I will advise Pauline "Adultery is a common ground for divorce in England because, like unreasonable behaviour, it offers "instant" divorce where it applies whereas the other three grounds for divorce involve compulsory long delays. Naturally, adultery is only relevant as a ground for divorce where that has actually taken place. If there has been no adultery then the only other ground for "instant" divorce is unreasonable Behaviour." (Morley 2005) Since (I will have advised Pauline is grounds enough for a divorce and in the UK it is grounds for instant divorce, unreasonable Behaviour will not be a necessary condition to file under. The main concern at this point is the division of property and financial provisions for Pauline and Bethany. Earlier I advised Pauline that the condition of adultery and the fact that she is able to prove it are to her financial provisions advantage. "Strangely enough, there are often unexpected advantages in obtaining a divorce based on adultery. Such divorces are very often not "amicable" for obvious enough reasons. Nevertheless, what often happens is that the person who has committed the adultery either (a) feels guilty and/or (b) wants to remarry quickly. Each of these factors can very often lead to them agreeing to a financial settlement more unfavourable to them than they might otherwise have done." (Pelusa 2004) According to the laws of the UK, concerning divorce the property division is as follows: "The Family Law (Scotland) Act 1985 provides for the division of matrimonial property on divorce. Matrimonial property is generally all the property acquired by the spouses during the marriage, as well as property acquired for use as a matrimonial home - or furnishings for that home - before the marriage. Either party to the marriage can apply to the court for an order under the 1985 Act. The court can make orders for the payment of a capital sum, the transfer of property, the payment of periodical allowances, and other incidental orders." (Morley 2005 International Law) Given that Robert hold property in his name only I will advise Pauline that we fight for that property too be declared matrimonial and ask for a capital sum from his private holdings. When the court makes an order, it must be guided by the following principles: The net value of the matrimonial property should be shared fairly. The court will take account of economic advantage derived by either party from contributions by the other, and of economic disadvantage suffered by either party in the interests of the other party or of the family. Contributions can be non-financial, and specifically includes looking after the home or caring for the family as well as financial contributions. The economic burden of caring for a child of the marriage under 16 years should be shared fairly between the parties. A party who has been substantially financially dependent on the other party to the marriage should be awarded financial provision to enable him or her to adjust to the loss of the support that they received. This provision can last for up to three years. If a party to the divorce is likely to suffer serious financial hardship as a result of the divorce, reasonable provision should be made to relieve him or her of that hardship, over a reasonable period of time. (Morley 2005 International Law) Many of these apply to Pasuline so I will advise Pauline that a ccourt order for financial provisions due to the above reasons be filed. The private owned property of Robert's was gained after marriage so even though it is held in Robert's name only Pauline has right to some of the proceeds of the property. Morley pointed out that "Matrimonial property does not include other property acquired before the marriage, property acquired by a spouse after the spouses have ceased to cohabit, or property gifted or inherited from a third party during the marriage." International law 2995) The fact that Bethany is only four means that she will have to be provided for 14 years. The laws regarding minor children "As stated in (b) above, the economic burden of caring for a child of the marriage should be shared equally." (Morley 2005 International law) I will advise Pauline that the visitation agreement that she and Robert wish to adhere to regarding Bethany needs to be arranged before the paperwork and financial provisions are filed. Pauline has stated that she will most likely keep Bethany fulltime granting Robert time with the girl on weekends and some holidays. I will advise Pauline of this financial provision to file: The property shall be sold at fair market value and the mortgage paid off. This includes Robert's private holdings. Pauline and Bethany will be able to live in the 3 bedroom home until it is sold and the mortgage is paid off. Robert will continue to make the mortgage payments until this is done. At such a smaller home will be purchased for Pauline and Bethany. The rest of the proceeds from the sale of the private holdings will be divided 50/50 between Pauline and Robert, as well; Pauline will keep the car because she and Bethany need transportation and will be registered in Pauline's name. The joint bank account and Robert's building society account will be split equally between Pauline and Robert. Bethany will be the beneficiary of Robber's pension. Pauline will be able to keep her small salary from her teaching aid position and Robert will give 1/3 of has per diem salary a portion to go towards Bethany's car and a portion to be used by Pasuline for expenses, groceries, maintenance of the home and the automobile. Provisions will also be set up so that Robert will provide health care for Bethany until she is 18 years of age and for Pauline 2 years after he divorce is final. d) Fortunately Andrew and Ludmilla/Vladmir have not been married for an extended period of time. The laws governing marriage annulment are as follows: "Although marriage annulment is not a legal term used in Scotland, if a Scottish marriage is void, any interested party may apply to the court for a declaratory of nullity. A void marriage is one where there was a legal impediment to the marriage. A marriage in Scotland is void if: Either of the parties was under the age of 16 at the time of marriage. The parties are related too closely - the forbidden degrees of relationship are stated in Schedule 1 of the Marriage (Scotland) Act 1977. The parties were not of the opposite sex. At least one of the parties was already married. At least one of the parties did not freely consent to the marriage." (Morley 2005 International Law) An avoidable marriage is one that subsists until one of the parties to the marriage applies for a declaratory of nullity. The only ground for an avoidable marriage is that one of the parties is incurably impotent. Due to the fact the sex change was involved Andrew may file for an annulment how ever the sex change had already taken place and legally Vladimir was a female. Conditions for an annulment do not include being lied to. The conditions are: "Any interested party can apply to the court for a declaratory of nullity of a void marriage, and either spouse can apply to the court for a declaratory of an avoidable marriage. For a marriage to be void, there must have been a legal impediment to the marriage. This generally means that at least one of the parties did not have the capacity to marry, or that a party to the marriage did not freely consent to it taking place." (Morley 2005 International Law) Andrew could file for an annulment and explain the circumstances. According to the law it is doubtful he will be granted the annulment. At that point my advice would be to file for a divorce under the condition of unreasonable behavior as soon as possible. Once the divorce is granted I would advise him to stop internet dating. Due to the short time period of the marriage Andrew should not be financially responsible for anything. References Hildesley, Mark. (1999) "The institution of marriage in the United Kingdom being law, facts, suggestions, and remarkable divorce cases." London, E. Wilson. Makin, Kirk. (2003) "Gay marriage is legalized" Kelowna and Canadian Press. Morley, Jeremy D. (2005) "Divorce in the United Kingdom" International Law. As viewed on the worldwide web at URL http://www.international-divorce.com/d-uk.htm Pelusa. (2004) "Adultery and Divorce" As viewed on the Worldwide web at URL http://www.faithnet.org.uk/Ethics/divorce.htm Read More