Desire for a Divorce - Case Study Example

The facts of the scenario raise complex issues in family law and in order to advise Tanya with regard to her desire for a divorce, it will be necessary to evaluate the following: 1) Legal principles applicable to divorce proceedings from a petitioner’s perspective; 2) Max’s rights; 3) The issue of adultery and whether Max’s use of online chat rooms constitutes adultery within the law; 4) Max’s alcoholism and violence towards Tanya; and 5) Tanya’s gambling and adultery. It is evident that Tanya desires a divorce in order that she can live with Ian and Section 3(1) of the Matrimonial Causes Act 1973 (MCA) enables Tanya to petition for divorce after one year from the date of marriage. The MCA provides an absolute bar on petitioning before one year and as Tanya and Max have been married for 18 months, Tanya can present a petition to commence divorce proceedings immediately, subject to establishing grounds for divorce under the MCA. Section 1(1) of the MCA provides that the grounds for petitioning for divorce are irretrievable breakdown of marriage, which must be proved by establishing one of the five facts in section 1(2) of the MCA The five facts for divorce are adultery, unreasonable behaviour, desertion, two years’ separation with consent and five years’ separation. Section 1(4) of the further MCA provides that proof of any one of the five facts will create a presumption of an irretrievable breakdown unless the respondent contests the grounds for divorce and defends the petition. Moreover, whilst section 1(3) of the MCA theoretically requires a judicial investigation into the facts cited as grounds for a divorce petition, ultimately the “special procedure” provisions rarely require a testing of evidence (Herring, 2007). In the current scenario, from Tanya’s perspective the facts would appear to suggest that Tanya can petition for divorce from Max on grounds unreasonable behaviour or potentially adultery. With regard to the adultery grounds for divorce, under section 1(2) of the MCA, Tanya would have to prove that Max committed adultery and that she finds it intolerable to live with him as a result. However, Tanya would have the burden of proving adultery under the MCA (Probert, 2006). The legal definition of adultery was established in the case of Clarkson v Clarkson ((1930 143 LT 775) as being the voluntary or consensual sexual intercourse between a married person and a person of the opposite sex not being the other’s spouse. Tanya would have the onus of proving adultery and that she find it intolerable to live with this on the balance of probabilities. Additionally, in cases involving adultery, section 2(1) of the MCA provides that the parties must not continue to cohabit for more than six months after the petitioner discovers the respondent’s adultery. If they do so, they cannot rely on adultery as evidenced of irretrievable breakdown. Nevertheless a couple can be considered as living together whilst in the same house for example in Hollens v Hollens ([1971] 115 SJ 327 the couple were found to have been effectively living apart under the same roof as they didn’t speak, eat or sleep together. Moreover, in the case of Mouncer v Mouncer ([1972] 2 All ER 289) the spouses were on speaking terms and occasionally ate together, however they still were held to be living apart for all other intents and purposes as a married couple for the purpose of the section 2(1) MCA provisions regarding post infidelity cohabitation. Nevertheless, section 2 of the MCA provides that new incidents of infidelity will refresh the six month period every time a spouse discovers an infidelity. Before considering Tanya’s need to prove adultery, it is important to mention that in addition that in petitioning Max on this ground, Tanya would need to establish that living with him was intolerable and the test for this is subjective (Bond et al, 2008). The Court of Appeal has determined that the intolerable requirement is not solely as a result of the adultery and in the case of Cleary v Cleary ([1974] 1 WLR 73) the Court of Appeal found intolerability as a result of the wife’s subsequent conduct and attitude after her husband forgave her affair. Additionally, in Carr v Carrr ([1974) 1 All ER 1193), it was held that the intolerability requirement was satisfied as a result of the husband’s mistreatment of the couple’s children. Moreover, in the Cleary case, the Court of Appeal determined that the intolerability has to be genuine and Lord Denning MR asserted that it was not sufficient that the petitioner simply preferred to live with someone else. Therefore in the current scenario whilst Tanya’s cohabitation with Ian will satisfy the living apart requirement, her desire to live marry Ian will be irrelevant to demonstrating intolerability. However, the central stumbling block in this case will be Tanya establishing adultery. With regard to proving adultery, Bond et al comment that it would be quite extraordinary “if the petitioner was able to produce a witness who had actually seen the respondent committing adultery. Proof is therefore normally indirect” (Bond et al, 2008, p.49). Examples of evidence used for proof of adultery include confessions and admissions where the respondent affirms adultery under the prescribed form of acknowledgment set out in the Family Proceedings Rules 1991 (Appendix 1, Form M6). Alternatively, Bond et al refer to the adduction of circumstantial evidence for proving adultery (2007, p.50). However, in the current scenario, Tanya’s argument appears to be that Max’s online relationship with his online girlfriend Claudia. However, notwithstanding the extent of Max’s online interaction with Claudia in the chat rooms, Max has never met Claudia and therefore this will fail to constitute adultery under the legal test which requires voluntary and consensual sexual intercourse. Accordingly, Tanya will not be able to petition Max on grounds of adultery. Therefore the other ground that she can rely on to secure a quicker divorce as desired is Max’s unreasonable behaviour under section 1(2)(b) of the MCA. With regard to behaviour, in the case of Katz v Katz ([1972] 1 WLR 955) unreasonable behaviour under this ground was defined as action or conduct by one spouse which affects the other. Omissions or acts are both included under this heading and the course of conduct must be undertaken during the course of marriage. Additionally, Tanya would have to demonstrate that she cannot reasonably be expected to live with Max. The test for unreasonable behaviour is objective and in the case of Ash v Ash ([1972] Fam 135) where Bagnall J extrapolated the test for unreasonable behaviour as follows: “can this petitioner with his/her character and personality with his/her faults and other attributes, good or band and having regard to his/her behaviour during the marriage, reasonably be expected to live with the respondent”. Similarly in Livingstone Stallard v Livingstone Stallard ([1974] 2 All ER 776) and the Court of Appeal decision in Birch v Birch ([1992 1 FLR 564), it was confirmed that the characters and personalities of the parties are relevant in deciding what conduct they should expect to bear. For example, in Carter Fea v Carter Fea ([1987] Fam Law 130) the husband was financially irresponsible over a six year period which impacted his family’s quality of life, caused his wife stress and bad health as a result of living in “a world of unpaid bills, bailiffs at the door and second mortgages”. The Court of Appeal acknowledged that running into financial difficulties would not suffice for a petition on grounds of unreasonable behaviour per se, however if one spouse remained financially irresponsible, unable to manage their affairs and this had an adverse effect on the other spouse, this constituted behaviour which the petitioner could not be expected to live with. Therefore in the current scenario, whilst Max’s online use of chat rooms will not constitute adultery, his continuous use of the chat rooms, alcoholism and violence towards here will provide strong grounds for petitioning for divorce for Max’s unreasonable behaviour. However, if Tanya is unable to establish unreasonable behaviour as a ground for irretrievable breakdown, the other options are two years’ separation with Max’s consent or five years’ separation under the MCA. Therefore Tanya would have to wait another two years from the period she started living with Ian and present and present a petition requiring Max’s consent under section 1(2)(d) of the MCA. It is evident that Max does not want to divorce Tanya, therefore the two year separation ground may not be fruitful for Tanya, although Max may change his mind in two years. Alternatively, if Tanya waited two years and Max did not consent, she would have to wait until they have both lived apart for five years to petition Max for divorced under section 1(2)(e) of the MCA. Under this ground, Tanya would have to establish that she and Max have lived apart for five years and section 2(6) of the MCA provides that a husband and wife are treated as living apart unless living with each other in the same household. In the current scenario, Tanya has moved out and therefore the separation requirement would be satisfied. Notwithstanding a petition for divorce on the ground of five years’ separation, Tanya should be aware that Max could invoke a defence to the petition under section 5 of the MCA which provides that a respondent can oppose a decree nisi on (i) grounds of grave financial or other hardship and that (ii) in all the circumstances it would be ground to dissolve the marriage. Max would have to satisfy both elements of the test and in practice the section 5 test rarely succeeds (Diduck & Kaganas, 2006). Alternatively, if Tanya waits to petition on grounds of separation, Max may change his mind and petition for divorce on grounds of Tanya’s adultery or unreasonable behaviour. In the current scenario Tanya has moved in with Ian and is carrying his child, which will clearly provide the sufficient circumstantial evidence required to prove adultery. Additionally, her gambling addiction, accumulation of debt and violence towards Max will also provide strong grounds for Max to petition for divorce for irretrievable breakdown as a result of Tanya’s unreasonable behaviour. Whilst Max claims that Tanya has deserted him, he would have to wait two years to petition Tanya on grounds of desertion as section 1(2)(e) provides that this fact requires the petitioner to demonstrate that “the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition”. Alternatively, whilst Tanya’s main desire is for divorce as Max doesn’t want a divorce and is being difficult, Part IV of the Family Law Act 1996 (the FLA) empowers courts in family law proceedings to make orders to offer protection which are pertinent to Tanya’s current situation in light of Max’s violence; namely, a non-molestation order (Section 42 of the FLA). However, the FLA only entitles the court to make such orders if the application is made by an “associated person” (Herring 2007). For example, with regard to non-molestation orders, Section 42(2) (a) of the FLA provides that the court can make an order if “an application for an order has been made ……by a person who is associated with the respondent”. Section 62 of the FLA defines “associated persons” and as both Tanya and Max are married, this will satisfy the requirement of associated persons. It is important to note at the outset that if Tanya decides to seek relief under Part IV of the FLA, she can do so in as little as two days and in emergency situations, Section 45(1) of the FLA enables courts to make non-molestation orders without notice. At this stage, Max would have no opportunity to reply to Tanya’s application, however he would have an opportunity as soon “just and convenient” at a full hearing (Section 45(3)). Such ex-parte applications are determined with regard to the circumstances of the case, including an assessment of the risk of significant harm to Tanya attributable to Max’s conduct and whether Tanya will be seriously prejudiced by the delay involved in taking normal steps to serve Max with notice of the proceedings (Section 45). The factual scenario clearly operates in Tanya’s favour in making an application for a non-molestation order as an “associated person” by virtue of being his wife. The term “molestation” is not statutorily defined and it has been described in general terms as “pestering” in Vaughan v Vaughan (1973 3 All ER 449). Furthermore, in the case of Horner v Horner ([1982] 2 All ER 495) it was asserted that the term “molestation” included “any conduct which could be regarded as such a degree of harassment as to call for the intervention of the court”. This was reaffirmed in the case of C v C (Non-molestation Order: Jurisdiction [1998] 2 WLR 599). With regard to Tanya’s situation, the fact that she is a victim of Max’s alcohol fuelled violence, coupled with his recent violent attacks will clearly come within the definition of molestation (Lowe & Douglas 2006). Indeed Viscount Dilhorne asserted in the case of Davis v Johnson ([1979] AC 264) that “violence is a form of molestation”. Viscount Dilhorne went further and stated that molestation “may also take place without the threat or use of violence and still be serious and inimical to mental or physical health”. Accordingly, Max’s alcoholism and violence persistent will also operate in Tanya’s favour in demonstrating molestation in favour of her application for an order. Furthermore, Section 42(5) (a) of the FLA provides that “in deciding whether to exercise its powers under this section…… the court shall have regard to all the circumstances including the need to secure the health, safety and well being of the applicant”. If we apply this to Tanya’s situation, it is highly likely that the fact that she is currently pregnant, coupled with Max’s desire to stay with her, his alcohol problem and violence will suffice to justify a non-molestation order (Lowestein 2005). As the primary objective under Section 42 of the FLA is to secure Tanya’s health and safety, it is possible that the order may be imposed for a specified period of time until Max completes rehabilitation and help for his violent behaviour. The important consideration is the effect of the conduct on Tanya and not Max’s intention (G v G (Occupation Order: Conduct [1999] 1 FLR 392). Moreover, Section 63(1) of the FLA defines “harm” as the ill treatment or impairment of health, which is clearly demonstrated in the current scenario with Tanya having suffered from recurring incidences of violence. Furthermore, in the case of Humberside CC v B ([1993] 1 FLR 257), it was indicated that the courts should consider the balance of harm test by analogy with the provisions of the Children Act 1989 and as such, harm should be “considerable, noteworthy or important” (per Booth J at p.263). If we apply this by analogy to the current scenario, the harm suffered by Tanya and the potential for recurrence is likely to tip the balance in favour of Tanya in an application for an non molestation order particularly in light of her pregnancy (Probert 2006). Additionally, whilst Tanya has moved out, Max’s violence against her and alcoholism may enable her to get an occupation order of their matrimonial home, which would not impact her desire for a divorce if forced to rely on the separation grounds (Lowe & Douglas 2006). Notwithstanding any lack of legal or beneficial interests in the property, Tanya would by virtue of section 30 of the FLA have matrimonial home rights, giving her the right of occupation (Herring 2007). In order to be binding on third parties, the right would have to be registered as a land charge in the case of unregistered land or a notice if the property is registered (Herring 20070. As such, Tanya’s matrimonial home rights would render her “a person entitled” under section 33 of the FLA in respect of any application for an occupation order. The criteria under section 33 of the FLA also requires the court to undertake the balance of harm test as discussed above, however there is no requirement to consider the commitment between the parties. Furthermore, if the balance of harm test weighs in Tanya’s favour, the court has a positive duty to make an occupation order under section 33, of the FLA. Alternatively, the factual scenario indicates that Tanya has also been drinking and violent towards Max and therefore as an “associated person” within the FLA definition, Max will also be able to make an application for the protection orders available under part IV of the FLA. Therefore in summary, whilst Tanya requires a divorce as quickly as possible, she will not be able to argue adultery on grounds that Max’s relationship with his online girlfriend never resulted in sexual intercourse as required by the legal test for adultery. The main recourse for a relatively quick divorce would be to petition Max for irretrievable breakdown on grounds of Max’s unreasonable behaviour. His alcoholism, violence and neglect of Tanya whilst developing his relationship with his online girlfriend will provide strong grounds for a petition by Tanya on grounds of unreasonable behaviour. In considering unreasonable behaviour, the courts consider conduct of both parties and therefore Tanya’s alcoholism, gambling addiction and pre-wedding infidelity with Max’s brother Jack may weaken her arguments regarding Max’s unreasonable behaviour as a ground for petitioning for divorce (Probert, 2006). Accordingly, if Tanya is unable to establish unreasonable behaviour, she will have to wait two years from the date of her leaving Max and cohabiting with Ian to petition for divorce on grounds of two years’ separation. However, on this ground for divorce, Tanya would require Max’s consent. At present Max is suggesting that he will never consent to divorce, however he may change his mind by this time. If Max refuses to consent after two years, Tanya will have to wait five years to petition for divorce on grounds of five years’ separation and Max could invoke the section 5 defence to argue negate the application for a decree nisi. However, in practice section 5 defences rarely succeed (Mykituik, 2006). Additionally, it is important to note that if Tanya cannot establish unreasonable behaviour as grounds for divorce, if she waits for the separation grounds and in this time Max changes his mind regarding divorce, Max may well petition Tanya for divorce on grounds of adultery or unreasonable behaviour. Tanya’s pregnancy and relationship with Ian will provide the proof of adultery and alternatively, her gambling addiction, pre-wedding infidelity and violence towards Max will also provide grounds for a petition on grounds of unreasonable behaviour. Finally, the violence between the parties will entitle both Max and Tanya to consider making applications for non-molestation and occupation orders under Part IV of the FLA 1996. Bibliography Bird, R, Domestic Violence Law & Practice, Family Law Series London (2002) Bond, T., Black, J., & Bridge, J. (2008). Family Law. Oxford University Press. Burton, M., “Domestic Violence – From Consultation to Bill” [2004] Fam Law 128. S, Choudhury., & J, Herring., (2006). Righting Domestic Violence. International Journal of Law, Policy and the Family. A Diduck., & F Kaganas., (2006). Family Law, Gender and the State: Text Cases and Materials. 2nd Edition J. Herring., (2007). Family law. 3rd Edition Longman Lowe., & Douglas., (2006). Bromley’s Family Law. 10th Revised Edition LexisNexis UK. L.F., Lowestein (2005). Domestic Violence: Recent Research. Police Journal. Mykituik Roxanne, Family Law: Cases and Materials, Osgoode Hall Law School, (2006) R, Probert., (2006) Cretney’s Family Law., 6th Revised Edition (2006) Sweet & Maxwell Statutes Matrimonial Causes Act 1973 The Family Law Act 1996 The Domestic Violence, Crime and Victims Act 2004 All available at www.opsi.gov.uk Read More