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Published: Fri, 02 Feb 2018
Divorce and ancillary relief
The assignment question primarily concerns divorce and ancillary relief. Firstly, Jenny needs to be advised as to whether she can obtain a divorce now or in the future.
Divorce is ‘the legal termination of a marriage and the obligations created by it’ and is currently governed by the Matrimonial Causes Act 1973.
Presumably, Jenny’s petition for divorce will be undefended by Nathan and will therefore take place via the ‘special procedure’, which is largely an administrative procedure.
As Jenny and Nathan have been married for five years, they clearly satisfy the ‘one year bar’ under section 3(1) of the Matrimonial and Family Proceedings Act 1984.
For Jenny to obtain a divorce then, she needs to satisfy ‘the irretrievable breakdown of the marriage’ as required under section 1(1) of the Matrimonial Causes Act 1973.
For Jenny to prove this, one or more of the ‘five facts’ must be established as stated in Buffery v Buffery (1988).
The ‘five facts’ are detailed under sections 1(2)(a-e) of the Matrimonial Causes Act 1973 as: ‘adultery and intolerability’, ‘unreasonable behaviour’, ‘desertion’, ‘two years separation with the respondent’s consent’ and ‘five years separation without consent.’
With regards to Jenny’s case, the most appropriate ground for her to petition on now is ‘unreasonable behaviour.’ Here, the court may infer an irretrievable breakdown of the marriage on the fact that ‘the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him’, as in Bannister v Bannister (1980).
This sufficed in Carter Fea v Carter Fea (1987) where the wife became depressed because her husband was financially irresponsible. It also sufficed in Hadjimilitis v Tsavliris (2003) where the wife became depressed because of her husband’s lack of understanding.
However, it is not enough just for Nathan to engage in unreasonable behaviour. His behaviour must be so unreasonable that a right thinking person would come to the conclusion that Jenny could not reasonably be expected to live with him, as held in O’Neill v O’Neill (1975 and Birch v Birch (1992).
In Ash v Ash (1972), where both parties were ‘as bad as each other’, Bagnall J asked:
“Can this petitioner, with his or her characteristics and personality, with his or her faults and other attributes, good and bad, having regard to his or her behaviour during the marriage, reasonably be expected to live with this respondent? Thus, for example, a violent petitioner can reasonably be expected to live with a violent respondent, an alcoholic petitioner with a respondent similarly addicted, or a flirtatious husband with an equally susceptible wife.”
In comparison to the above case law, it appears likely that Jenny would be successful with her petition for divorce on the grounds of unreasonable behaviour. Ultimately though, it would be a matter of construction for the court.
The only issue that may fail Jenny’s petition is the fact that she has co-habited with Nathan for twelve months (following the start of his unreasonable behaviour). This is because section 2(3) of the Matrimonial Causes Act 1973 states that a period of cohabitation (from the last incident) of six months or more may fail the petition because this goes beyond the reconciliation period, as discussed in Bradley v Bradley (1973).
Furthermore, Jenny should be advised that even though she committed adultery with Richard, it is not possible for a petitioner to rely on their own adultery, as stated under section 2(1) of the Matrimonial Causes Act 1973, so this ground is not available to her.
However, there is nothing stopping her from asking Nathan to petition for divorce on the grounds of her adultery!
Moreover, Jenny may be able to obtain a divorce in the future on the grounds of ‘two years separation with the respondent’s consent.’ Here, the court will infer an irretrievable breakdown of the marriage if: ‘the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted’, as stated under section 1(2)(d) of the Matrimonial Causes Act 1973.
If Jenny moves out of the family home then ‘two years separation’ should be fairly straightforward to prove. However, it is still possible to petition on this ground even if she remains living in the same household as Nathan, so long as they are ‘living apart with separate lives.’ This was illustrated in the cases of Hollens v Hollens (1971) and Fuller v Fuller (1973).
The question to be asked is whether there is any community between the parties. In Mouncer v Mouncer (1972) the parties ate together, watched television together and shared chores. The petition failed as the court regarded them as living together.
Furthermore, the Court of Appeal explained in Santos v Santos (1972) that ‘living apart’ usually requires a mental element, not just a mere physical separation. For this to suffice, one of the spouses must wish to live apart from the other. This requirement is satisfied in Jenny’s case since Nathan made it clear that he would occupy a separate room, only spend time with the children and regard Jenny as no more than a live in companion.
The court must also be satisfied that the financial provisions made by Jenny are fair and reasonable too, under section 10 (3) of the Matrimonial Causes Act 1973.
In conclusion, Jenny may be able to obtain a divorce in two years time so long as the court regard her and Nathan as living apart with separate lives and of course, Nathan must also consent to the decree being granted.
Now that Jenny knows it may be possible for her to obtain a divorce, she must be advised as to what ancillary relief she would be entitled to in that event.
The term ‘ancillary relief’ covers all financial matters arising from divorce, nullity or judicial separation. Both parties should be treated fairly on their application so theoretically, all of the assets should go into the ‘same pot’ and be split equally into 50/50 shares. This is known as the ‘ideal yardstick of equality’, which was devised by Lord Nicholls in the case White v White (2000).
However, the factors that must be considered by the court under sections 25(2)(a-h) of the Matrimonial Causes Act 1973 sometimes make this ‘ideal’ unrealistic and unworkable, which will be illustrated further on.
With ancillary relief applications, the courts have wide powers under the Matrimonial Causes Act 1973 to make orders relating to income, property, capital and children.
In regards to Jenny’s case, the most appropriate ‘income order’ for her would be a ‘lump sum payment order’ as detailed under section 23(1)(c) of the Matrimonial Causes Act 1973 and awarded in Duxbury v Duxbury (1987). Here, the court would order Nathan to pay Jenny a lump sum of money that she could invest and live off as income, or use for a specified purpose. It is most likely that the court would use the ‘Duxbury calculation’ to determine how much Jenny would be entitled to. It would also be possible for Nathan to pay the lump sum of money in instalments under section 23(3)(c) of the Matrimonial Causes Act 1973, as the husband did in R v R (2003).
In relation to the matrimonial home, the courts have the power to transfer property under section 24 of the Matrimonial Causes Act 1973, regardless of the name on the deeds. Therefore, it is irrelevant that the property is in Nathan’s sole name.
In Jenny’s case, the most appropriate property transfer order would be by a ‘Hanlon order’. The Hanlon order derived from the case of Hanlon v Hanlon (1978) whereby the husband already had a flat as part of his job, so he was required to transfer the matrimonial home to his wife.
Here, the court would order Nathan to transfer the entire property into Jenny’s name and would have no further responsibility with regards to it (eg maintenance). The order requires that the other party can house themselves, which Nathan clearly satisfies since he could sell the holiday home in France and buy a new home with the proceeds.
Alternatively, Jenny could apply for a ‘power to order sale’ under section 24(a) of the Matrimonial Causes Act 1973. The matrimonial home and the holiday home in France could both be sold and the proceeds would be divided appropriately between them. It is likely though that Jenny would prefer the Hanlon order to avoid moving house and disrupting the children.
Furthermore, the reasons as to why the above income and property orders have been advised are because they are most appropriate for a ‘clean break order’ and also adhere to the factors under sections 25(2)(a-h) of the Matrimonial Causes Act 1973.
Firstly, under section 25A(1) of the Matrimonial Causes Act 1973, the court has a mandatory duty to consider a ‘clean break order’ in all cases, which means that: ‘all financial obligations of each party towards the other will be terminated.’
Clearly there can be no clean break order from the children, but it is possible between the spouses as illustrated in McCartney v Mills McCartney (2008).
In Jenny’s case, a clean break order would be advisable for reasons such as, to avoid future problems with payments and to be completely released from the marriage, as in Minton v Minton (1979).
A clean break order is also appropriate and readily available here because of the wealth involved. Nathan clearly has enough money to pay Jenny a substantial lump sum, which she could invest and live off, rather than be ‘tied’ by paying her periodic payments. There is also enough wealth for more than one home, hence the recommendation of the Hanlon order.
Furthermore, the above orders have also been advised following careful consideration of the relevant factors set out under sections 25(2)(a, b c and f) of the Matrimonial Causes Act 1973.
The first factor to be considered was that the ‘first consideration should be given to the welfare of the children’ as stated under section 25(1) of the Matrimonial Causes Act 1973. Although, it was stated in Suter v Suter and Jones (1987) that it is not an overriding factor.
Even so, a clean break order could only be a good thing for the Ian and Mary’s welfare here since it prevents further antagonism between their parents, as in Parra v Parra (2002).
The fact that the children are able to stay in their own home (because of the Hanlon order) and that their mother will be financially stable (because of the lump sum payment) clearly illustrates that the children’s welfare has been taken into consideration.
Moreover, the next relevant factor to be considered was ‘income, earning capacity and financial resources either now or in the foreseeable future’ as detailed under section 25(2)(a) of the Matrimonial Causes Act 1973. A clean break order is justifiable here as it is likely that Jenny would be able to secure employment in the future. She is a qualified nurse and has also acquired many skills by helping with the business; therefore she could rely on the lump sum payment until she gets back into work. The court could make her use reasonable efforts to increase her earning capacity too, as stated in A v A (1998). Also, Jenny should not require any further financial support from Nathan because she has recently inherited £50,000.
Moreover, it would be unfair for Nathan to have to provide follow on maintenance, rather than the advised lump sum payment, because the economic downturn has impacted on his overall financial position, which means his future security is precarious.
Moreover, the next factor to be considered was the ‘financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future’, as defined under section 25(2)(b) of the Matrimonial Causes Act 1973.
The main need for both parties was housing, as emphasised in Cordle v Cordle (2000).
This factor has clearly been considered since Jenny and the children are able to remain living in the family home. Nathan also has the funds (eg from the holiday home or selling his investments) to house himself too.
As pointed out in Charman v Charman (2007) higher income cases, as this is, rarely need any more consideration because the award of the court is likely to be more than sufficient to meet their needs.
Furthermore, the next factor to be considered was ‘the standard of living enjoyed by the family before the breakdown of the marriage’, under section 25(2)(c) of the Matrimonial Causes Act 1973. This factor is particularly relevant to rich couples, as seen in Leadbeater v Leadbeater (1985) and McCartney v Mills McCartney (2008).
With the advised income, property and clean break order, Jenny and Nathan will have their own homes (paid outright) and a form of substantial income so there is no reason why their standard of living should differentiate much from before.
On the other hand, it could be argued here that the lump sum payment received by Jenny reflects the standard of living she would have enjoyed had the marriage continued, as in Preston v Preston (1981) and Attar v Attar (1985).
The final factor to be considered was the ‘contributions which each of the parties has made or is likely to make in the foreseeable future’ as stated under section 25(2)(f) of the Matrimonial Causes Act 1973.
The main reasons and justifications for the advised income, property and clean break order are down to this factor. Nathan worked hard building up the business and providing an income for the family, but Jenny also made large contributions by taking care of the family home, caring for the children and even giving up her career as a nurse to help out with the business. She will also be continuing to take care of the children full time in the foreseeable future.
According to Lord Nicholls in White v White (2000): ‘…it matters not which of them earned the money and built up the assets’. Yet in Cowan v Cowan (2001) it was held that ‘a departure from equality could be justified where one party had made a special contribution, such as entrepreneurial flair.’
Moreover, in Lambert v Lambert (2002) Thorpe LJ stated: ‘[I]f all that is regarded is the breadwinner’s success then discrimination is almost bound to follow since there is no equal opportunity for her to demonstrate the scale of her comparable success.’
The Court of Appeal too supported the role of the home-maker in Charman v Charman (2007).
Based on these factors, the recommended orders try to reflect a 50/50 share of the assets. Jenny made just as much contribution to the family as Nathan , if not more, which justifies her award of a lump sum payment and the transfer of the matrimonial home to her.
Moreover, with regards to the children, it will be assumed here that they live with their mother on a full time basis and she is their primary carer. Nathan is therefore a ‘non-resident parent’. As both parents are legally responsible for financially supporting their children, Jenny should be advised to apply for child support maintenance, in order to help with the day-to-day care of the children.
In relation to Mary, Jenny should apply to the Child Support Agency for periodic payments from Nathan, as this is not the responsibility of the court.
The Child Support Agency would then assess Jenny’s claim and enforce Nathan to make payments to her, under the Child Support Act 1991. The statutory formula needed to make this calculation is set out in schedule 1 of The Child Support, Pensions and Social Security Act 2000. According to this, Nathan would have to pay 15% of his net weekly income to Jenny for the maintenance of Mary. However, if Nathan’s income is in excess of £2000 per week, then ‘top up’ awards of more maintenance can be made under section 25 of the Child Support, Pensions and Social Security Act 2000.
With regards to the other child, Ian, it is not possible for Jenny to apply for maintenance for him in the same way as Mary because section 6 of the Child Support Act 1991 requires the child to be ‘qualifying and natural’. Clearly this does suffice since Nathan is not Ian’s natural father: he is only his stepfather.
Jenny is also unable to claim for child maintenance from Ian’s biological father, John because she does not have his details, as required by the Child Support Agency.
On the other hand, Jenny should be advised to apply for ‘periodic payments’ from Nathan (for Ian) under section 15 the Children Act 1989. This is the only way a claim can be made against a step parent and requires the person to have ‘treated the child as a child of the family’.
Nathan clearly satisfies this but whether he would be liable to pay maintenance and how much would ultimately be a matter for the court to decide.
If Jenny successfully claims child support for either child, then Nathan would have to pay maintenance until the child reaches the age of sixteen, or nineteen if the child remains in full time education.
In conclusion, Jenny should be advised that a likely outcome based on everything that has been discussed is that she obtains a divorce on the grounds of unreasonable behaviour and is then awarded the matrimonial home, a lump sum payment from Nathan and gets to keeps her £50k inheritance. Nathan would therefore keep the holiday home, the business, the £1million investments and would have to pay child support maintenance.
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