The Matrimonial Causes Act 1973 - Essay Example

Nullity The Matrimonial Causes Act 1973 governs the law relating to marriages and dissolution of marriages. Whether or not a party to a marriage canobtain an annulment or a divorce in respect of that marriage will depend on the provisions contained in The Matrimonial Causes Act which set out the grounds upon which one might petition the court for a dissolution of the marriage.1 If a marriage is void or voidable it can be annulled under the provisions of Sections 11 and 12 of the Matrimonial Causes Act 1973. a) Harold’s Marriage For present purposes, the validity of Harold’s marriage will fall to be determined by section 12 of the 1973 Act. By virtue of Section 12 of the Matrimonial Causes Act, Harold’s marriage is voidable and as such can be annulled. Section 12 (d) provides that a marriage is voidable if ‘…either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise2 Harold clearly did not exercise free will when he married Wendy. She threatened his livelihood by warning that she would tell Harold’s employers of his previous convictions for crimes of dishonesty. It is not unreasonable to assume that Harold married Wendy as a means of silencing Wendy and holding onto his job. What amounts to duress is not always clear. Early on, Butt J determined that a series of incidents perpetuated by the husband against the wife was capable of amounting to duress. In this particular case the husband somehow managed to trick the wife into assuming his debts, then refused to help her discharge them unless she agreed to marry him. Once he finally got her before the appropriate Justice of the Peace, he once again threatened to shoot her if she did not go through with the marriage. Butt J allowed the decree of nullity on the grounds that the wife had not honestly consented to the matrimonial union.3 Duress is not always founded on extreme application of pressure as witnessed in the case above. The facts of Buckland v Buckland are rather similar to Harold’s case. In Buckland’s case, a man developed a platonic relationship with a minor and was charged with corrupting a minor. His solicitor advised him that should he marry the minor, he could avoid facing a term of imprisonment. The man married the minor and subsequently petitioned the courts for a decree of nullity. Lord Scarman held that since the man reasonably feared going to prison his consent was not genuine.4 Some authority exist for the construction of duress to be aligned with an actual threat to one’s ‘life, liberty or limb.’ In this vein, it might not be possible for Harold to rely on the duress on the grounds that Wendy indirectly threatened his job. Singh v Singh is responsible for raising the bar. In this case, a woman seeking a decree of nullity on the grounds that he had submitted unwilling since the marriage was arranged by his parents was denied a decree of nullity. It was held that the fact that the woman married out of respect for cultural beliefs and an unwillingness to disappoint her parents did not amount to duress. The consent was not obtained by threats or force to such an extent that the woman’s will had been overcome.5 In Singh v Kaur the Court of Appeal did not depart from the ruling in Singh v Singh. In Singh v Kaur, the Court of Appeal held that unless the consent was obtained by threat to life, limb or liberty, a decree of nullity will not be granted.6 However, later developments have shown a willingness by the courts to relax the interpretation of what amounts to sufficient duress, therefore Harold’s situation will likely fall into the category of cases where a marriage would be voided on the grounds of duress. In Hirani v Hirani, a woman’s decree of nullity was granted on the grounds that her consent to it was obtained under duress in far less threatening circumstances than previously required by the courts. In this case the woman had been threatened with expulsion from the family home and income if she refused to marry the man chose for her by her parents. The Court of Appeal held that such threats together with other pressures could operate to defeat the woman’s consent.7 b)Imran and Gemma Willful refusal to consummate the marriage will provide sufficient grounds for Imran to obtain a decree of nullity in respect of his marriage to Gemma. By virtue of Section 12 (b) Imran can obtain the decree of nullity provided he can show that ‘the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it’.8 In order for Imran to succeed in his petition for a decree of nullity on the grounds of Gemma’s willful refusal to consummate the marriage he must prove that her refusal was definite and settled and exercised without ‘just cause.’9 On the facts of Imran’s case the refusal had been settled and definite as it endured for a number of years, from 1996 until Irman left Gemma sometime after the year 2004. In act of adopting two children clearly demonstrated that Gemma did not intend to consummate the marriage and Imran had no reasonable expectation that she would. There is no evidence of any reasonable excuse for Gemma’s refusal to consummate the marriage and most certainly the fact that both spouses obviously wanted children will bolster Imran’s claim that the refusal was willful, definite, settled and without ‘just cause.’ The House of Lords argued that willful refusal is attributed to a settled and definite decision that is arrived at without just cause. Whether or not the refusal can be construed as definite and settled without just cause will depend on the history between the parties. 10 While the adoption of the two children is capable of indicating a settled and definite decision to willfully refuse consummation, it is capable of an opposite conclusion. In Baxter v Baxter, the House of Lords held that artificial insemination could amount to consummation.11 Artificial insemination is not unlike adoption since they both involve the introduction of children into the marriage independent of sexual intercourse. However, the facts of Baxter’s case can be distinguished from the facts of Imran’s case in that the sperm donor was in fact Baxter himself. Moreover, the Baxter’s had engaged in sexual relations previously via the use o condoms. In light of these distinguishing factors it is safe to maintain that in all the circumstances and considering the whole history of Imran’s marriage to Gemma, Imran will succeed in an application for a decree of nullity of the grounds of Gemma’s willful refusal to consummate the marriage. Divorce and the financial consequences of Divorce There is only one ground for divorce in the English legal system. Section 1(1) of the Matrimonial Causes Act 1973 provides that ground by granting that ‘A petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.’12 However the matter does not end there. The Matrimonial Causes Act makes provision for five facts upon which a petitioner might substantiate his or her claim that the marriage has broken down irretrievably. Those five facts are also contained in section 1 and one or more of these facts must be proved in order for the petitioner to succeed. The five facts are adultery, cruelty, desertion, two years separation and five years separation.13 Once the Decree Nisi is granted the parties to a divorce will usually make an application to the court for ancillary relief under the provisions of the Matrimonial Causes Act. The relevant sections of the act are Sections 23A and 24 as amended by the Family Law Act 1996.14 John and Judy’s Matrimonial issues (a) Divorce Unquestionably, Judy committed adultery. She not only had sexual intercourse with her brother-in-law she gave birth to his child. John should have no difficulty with proving the fact of adultery. However, his case is compromised by the fact, that notwithstanding the knowledge that his wife committed adultery, he attempted to reside with her for a further period for ‘appearances sake.’ Section 2 (1) provides that the petitioner cannot rely on the ground of adultery if he continued to reside with the respondent for a period in excess of six months after he found out about the adultery.15 Based on the facts of this case, John continued to live with Judy for a further two years. Section 2(1) will obviously prevent him relying on adultery to establish grounds for his divorce within the meaning of Section 1(1) of the Matrimonial Causes Act 1973. That said Section 2(2) might serve as an escape for John should he wish to rely on Judy’s behavior in support of his petition for a divorce. Section 2(2) of the Matrimonial Causes Act provides that living together for a period exceeding 6 months of discovering the respondent’s adultery will not bar relying on the ground that the petitioner finds it intolerable to continue living with the respondent.16 In order to rely on this ground the petitioner, (John) will have to prove that Judy’s behavior is such that he cannot be expected to remain living with her. In order to do this, John will have to rely on Section 1(2)(B) of the Matrimonial Causes Act 1973 which provides as follows: ‘The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.’17 The case Bannister v Bannister made it clear, that it is not the respondent’s behavior that has to be shown to be unreasonable. Rather, it has to be shown that in light of the respondent’s behavior it is unreasonable to expect that the petitioner would continue to cohabit with the respondent.18 What amounts to the requisite behavior might not be so clear as the courts appear to have wavered over the years. One thing is clear and it is to John’s benefit for the purpose of his divorce petition. In Cleary v Cleary [1974] 1 WLR 73 Lord Denning said that while the adultery might not have caused the breakdown of the marriage it could lead to the other party’s conclusion that he or she can not continue to cohabit with the other. He maintained that a judge in such cases as these should not accept the man’s bare assertion that he finds it intolerable. He should inquire what conduct on the part of the wife had made it intolerable. It may be her previous adultery. It may be something else. But whatever it is, the judge must be satisfied that the husband finds it intolerable to live with her.’19 John’s strongest grounds therefore, are on founded on the fact of Judy’s intolerable behavior within the meaning of Section 1(2)(b) of the Matrimonial Causes Act 1973. His plans to rely on two years separation are not going to be of any use to him in the hearing of his petition. Section 2(6) of the Matrimonial Causes Act 1973 provides as follows:- ‘a husband and wife shall be treated as living apart unless they are living with each other in the same household.’20 This section requires both a physical and mental element. While the parties are living in the same home it does not necessarily mean that they are living together. If they are sharing any form of community living then they cannot be said to living apart even if they sleep in separate bedrooms.21 Judy and John lived in separate bedrooms. However, they shared family meals and even went out together on occasions. In fact they even went so far as to invite friends over. Therefore it will be a mammoth task for John to prove that he and Judy did not share the same household. The mental element requires that at least one of the parties know that the marriage is at an end.22 Moreover Section 101 of the Matrimonial Causes Act 1973 provides that: ‘the court may, on an application made by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the petitioner misled the respondent (whether intentionally or unintentionally) about any matter which the respondent took into account in deciding to give his consent.’23 It can be argued that John’s sharing family meals with Judy, going out with her on occasions and having friends over were collectively acts of deception. Section 101 is a discretionary provision and the court is entitled to measure deception by way of the application of a subjective test. (b) Maintenance Maintenance is by and large awarded in matrimonial proceedings with the welfare of the minor children of the marriage, if any, in mind. The Matrimonial and Family Proceedings Act 1984 ‘introduced imperative on all courts to endeavor to produce clean breaks wherever possible.’24 This of course is used in the context of the spouses and does not intend to produce a gap between any of the minor children and the non-custodial parent of the marriage. The recently developed view is that parties to a marriage are equal partners and are not valued in accordance with their financial contributions. Non-financial contributions especially home-making can be treated as equal income contributions.25 Section 25 (2) of the Matrimonial Causes Act 1973 makes provision for what matters the court shall take into consideration when making an order for spousal support. They can be summarized as follows:- a) The respective needs of the relevant spouses, for instance, maintenance and accommodations. b) Similar needs of the minor children of the marriage, if any. c) Each spouse’s financial means. d) Each Spouse’s respective contributions during the course of the marriage. e) The length of the marital union. f) Each spouse’s age. g) Pensions. h) The conduct of the spouses. Is it or was it such that ‘it would be inequitable’ for the court to avoid.26 Spousal maintenance is only ordered in certain circumstances. Judy’s case will likely qualify for maintenance since she is now 45 years old and gave up her job as a teacher within two years of her marriage to John in order to take care of the twins of the marriage. Moreover, she supported John and the home at the onset of their marriage while he was a trainee accountant. The likelihood of Judy remarrying or securing work is good, but at her age it is not expected to take place over night. Therefore in accordance with a House of Lord ruling earlier this year, the court will take those matters into consideration when making an order for spousal maintenance and when determining how long such an order should remain effective. The golden thread that runs throughout is for one spouse to make financial contributions to the dependant spouse so as to avoid financial hardship until she or he can be reasonably expected to become financially dependant.27 (C) Child Support By virtue of Section 1 of the Child Support Act 1991 Section 1 John is liable to pay child support to Judy, if she maintains actual custody of the children. According to Section 1(2) John will be responsible as follows: ‘For the purposes of this Act, an absent parent shall be taken to have met his responsibility to maintain any qualifying child of his by making periodical payments of maintenance with respect to the child of such amount, and at such intervals, as may be determined in accordance with the provisions of this Act.’28 In a typical case the court primary concern at all stages of the ancillary proceedings is the welfare of the children of the marriage. The court will look at the respective needs of the children, the absent parent’s income and expenses and will try as far as possible to make an order for periodical payments designed to sustain the standard in which the children had become accustomed to during the course of the marriage.29 The facts indicate that the children were born at a time coinciding with John’s qualifying as an accounting and securing the position of Assistant Accountant at the Head office of a national food chain. It is not unreasonable to conclude that the children had become accustomed to a comfortable standard of living. Any order for child support will reflect this goal. The children of the family as alluded to in the Matrimonial Causes Act include any child that has been treated as a child of the family.30 The child fathered by John’s brother was born into the marriage and was subsequently treated by John as his own even after he discovered that the child was his. There has been no effort to introduce the child’s father to him as his father and since the court will be concerned with the best interest of the children of the family, the child’s status as a child of the family will not be affected by the marriage coming to an end. The Matrimonial Home In a typical case where a couple has been married for a relatively long period of time and there are young children of the marriage, Section 25 of the Matrimonial Causes Act (cited above) will be interpreted to vest the family home in the custodial parent’s name so as to provide a continuing stable environment for the children of the family.31 John and Judy have been married for 10 years and this is a relatively long period of time. Alternatively, the court might make an order for Judy to remain in the matrimonial home until such time as the younger child of the family attains the age of majority at which time the home can be sold and the remaining mortgage paid off from the proceeds of sale. Thereafter, in accordance with the ruling in White v White, the equity will be divided equally between John and Judy. 32 It is not known if the matrimonial home is held in both spouses’ names or only one. However the imposition of an equitable interest in favor or Judy whether or not she’s made direct contributions to the mortgage is a well know and firmly held principle in modern property matters. Lord Diplock explained, a wife’s earning capacity might be altered to some extent following the acquisition of matrimonial property by virtue of a mortgage. For instance, at the onset, both parties to the marriage might take out a mortgage for the purpose of purchasing a family home with the intention that both parties will contribute to the mortgage repayments from both of their earnings. However, somewhere down the road, the wife might become pregnant and her ability to work and earn is altered by childcare responsibilities. Lord Diplock did not feel that such a turn of events should affect the initial intention that the parties hold the property in equal shares.33 3. Unmarried Couples and Property (c) Non-Molestation Orders Mary can seek relief under Section 42 of the Family Law Act 1996 for a non-molestation and/or an occupation order in respect of the harm caused and the threat of harm attributed to Richard. Section 42(1) (a) makes it possible for Mary to apply for a non-molestation order which is an order ‘prohibiting provision prohibiting a person ("the respondent") from molesting another person who is associated with the respondent..’34 By virtue of Section 62(3) Richard is a person associated with Mary because they are cohabitants.35 Moreover, if the court is satisfied on the application for a non-molestation and/or an occupation order that Richard is a continuing threat it can attach an arrest order in contemplation of Richard breaching the order. The order will be made if ‘it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child.’36 In the circumstances of Mary and Richard’s case the court can make an occupation order enforcing Mary’s right to remain in the dwelling house share by her and Richard in one or more of the following terms: 1. Compelling Richard to aloe Mary to remain peacefully in the home. 2. A regulation as to what parts of the house at what times. 3. Barring Richard’s occupation of the home. 4. Forcing Richard to leave the home either fully or in part. 5. Excluding Richard from a specific distance away from the shared home.37 Mary should have no difficulty obtaining an order in at least one of the above terms because she meets the requirements set forth by the Family Law Act 1996. She has by virtue of the doctrine of constructive trust (discussed below) an interest in the home. Moreover, the court is bound to take into account the housing needs of both the parties as well as any relevant child. There is a child of the union and on the facts Mary is the person with primary care and control of the child. In addition Mary was admitted to accident and emergency therefore there is evidence of violence and the fact that Richard went into a drunken rage, breaking items in the home puts the relevant child at risk as well.38 (d) Mary’s Interest in the Home Although Mary’s name is not contained in the documents of title it does not mean that she does not have an equitable interest in the home. Mary’s situation is one where the doctrine of constructive trust will function to give her an interest in the home. The doctrine of constructive trusts applies as much to unmarried couples as it does to married couples. In determining what interest to attribute to Mary in respect of the dwelling house in circumstances where part of the proceeds are derived from personal income and part is acquired by means of a mortgage, the courts will generally look at contributions made by both parties. , Lord Dillion maintained that ‘the emphasis in relation to the law of trusts has been on the sums contributed by each person for the purchase price of the property. This is the starting point for determining the respective interests of the contributing parties and is the ‘basic doctrine of the resulting trust…’39 Lord Diplock said however, that ‘there is nothing inherently improbable in their acting on the understanding that the wife should be entitled to a share which was not to be quantified immediately upon the acquisition of the home but should be left to be determined when the mortgage was repaid or the property disposed of, on the basis of what would be fair having regard to the total contributions, direct or indirect, which each spouse had made by that date.’40 The courts have made no distinction between legal spouses and cohabitants.41 Therefore the cases cited above are as relevant to Mary and Richard as if they were actually married. It is clear that Mary might not have contributed to the actual purchase of the home that she shared with Richard. However, she did make contributions toward the household expenses. As LCJ MacDermott said in McFarlane v McFarlane, when the parties either expressly or implicitly that ‘some quid pro quo (something for something) in the nature of proprietary benefit an indirect contribution to the family finances becomes as much a basis of a resulting trust as a direct contribution.’42 The fact that Mary stopped working and perhaps did not make financial contributions toward the home would not prejudice her right to acquire a beneficial interest in the home. That is, provided that the initial intention was that Mary was to share some interest the home. Lord Diplock explained, a woman’s earning capacity might be altered to some extent following the acquisition of matrimonial property by virtue of a mortgage. For instance, at the onset, both parties to the marriage might take out a mortgage for the purpose of purchasing a family home with the intention that both parties will contribute to the mortgage repayments from both of their earnings. As it happens, the wife might become pregnant and her ability to work and earn is altered by childcare responsibilities. This event should affect the initial intention that both parties hold the shares in the property.43 Therefore Mary’s interest in the home will be determined by reference to both her direct and indirect contributions toward the home. Bibliography Bannister v Bannister [1980] 10 Fam Law 240 Baxter v Baxter [1947] 2 All ER 886, (HL) Buckland v Buckland [1967] 2 All ER 300 Child Support Act 1991 Section 1(2) http://www.opsi.gov.uk/acts/acts1991/Ukpga_19910048_en_2.htm Viewed November 20, 2006 Cleary v Cleary [1974] 1 WLR 73 Cretney, S.M. and Masson, J.M. Principles of Family Law. (2002) Sweet and Maxwell. London Family Law Act 1996 http://www.opsi.gov.uk/acts/acts1996/k1996027.htm Viewed November 20, 2006 Gissing v Gissing. [1971] AC 886 Hirani v Hirani (1982) 4 FLR 232, (CA) Hodson, David. White: Historical Background. http://www.davidhodson.com/information/documents/finance_work/WHITEBackground.doc Viewed November 20, 2006 Horton v Horton [1947] 2 All ER 871,(HL) Huntingford v Hobbs [1993] 1 FLR 736 McFarlane v McFarlane [2006] http://www.timesonline.co.uk/article/0,,200-2194958,00.html Viewed November 7, 2006 Miller v Miller and McFarlane v McFarlane. (2006) Times online. http://www.timesonline.co.uk/article/0,,200-2194958,00.html Viewed November 20, 2006 Santos v Santos [1972] Fam 247 Scott v Sebright (1886) LR 12 PD 21 Singh v Kaur [1981] Fam Law 152 (CA) Singh v Singh [1971] 2 All ER 828 (CA) The Matrimonial Causes Act 1973 Walker v Hall FLR 126 White v White (2000) UKHL http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd001026/white-1.htm Viewed November 20, 2006 Read More