Breakdown of status
relationship financial and legal
1.1 Part 1 Matrimonial Causes Act 1973. Section 1 (2) sets down
a single ground for divorce that the marriage has broken down
irretrievably. This is based on proof of 1 of 5 facts.
220.127.116.11 Voluntary sexual intercourse with a man and woman one or both of whom is married. Sexual
intimacy is insufficient. Must show that adultery has been committed and that it is intolerable to live
with. The intolerance need not be related to the adultery. You cannot rely on your own adultery or if
you have lived with your spouse for six months after discovering the adultery.
1.1.2 Unreasonable Behaviour
18.104.22.168 Buffery v Buffery; the test to apply is whether a
right thinking person looking at the particular
parties and all the circumstances and characters,
would say that the petitioner could not reasonably
be expected to live with the respondent. The 'grave
and weighty' test was wrong.
22.214.171.124 Birch v B, found the judge had erred in applying an
objective rather than a subjective test. Dogmatic,
didatic and chauvinistic behaviour towards a
sensitive wife amounted to behaviour with which the
wife could not reasonably be expected to live under.
126.96.36.199 Butterworth v B, Husband appealed against a decree
nisi on the basis of an 'accumulation of behaviour'.
The court set aside the decree and said that h had a
right to oppose the decree until the allegations were
proved on a balance of probabilities. The recorder
had failed to deal justly with H.
188.8.131.52 It does not need to be shown that the respondent
behaved unreasonably only that the petitioner
cannot be expected to live with him or her.
184.108.40.206 There must be actual separation for no good reason without
the consent of the petitioner. There must be separation of at
least two years, an intention by the respondent to desert the
partner, no consent by the petitioner to the desertion and no
just cause to the desertion.
1.1.4 2 years separation with consent
220.127.116.11 It must be shown that the parties lived apart for two
years AND that the respondent consents to the divorce.
If there is no consent then must rely on the five year fact.
1.1.5 5 years separation
18.104.22.168 There must be proof that the parties have lived
apart for five years. There is no need to show that
the respondent consents.
1.1.6 If divorce or dissolution is granted then the
marriage is over. If one of the five facts cannot be
proved then a divorce cannot be granted. If one of
the facts is proved but there is no irretrievable
breakdown then there will be no divorce. there
must be the ground and one of the facts. It is
ultimately a decision for the court.
1.2 Bars to divorce
1.2.1 Even if one of the five facts is proved if one of the following bars applies the court may
not grant a divorce. Section 3(1) must have been married for one year, if it is shorter
then should seek annullment. Section 5 provides a bar for five year separation where
great financial hardship would be suffered or it would be wrong in all the circumstances.
Section 12A provides that there must be a religious divorce as well if one party refuses
the court might refuse the legal divorce. Section 10(2) provides that on 2 or 5 year basis
of separation it will only be granted if the financial arrangements are fair and reasonable
for the petitioner. Section 41 a divorce can be refused if the court wishes to make orders
for the children but needs time for further consideration.
1.3 Reform. Consider whether it should be hard or easy to divorce,
should it be fault based, should there be blame and should
reconciliation be encouraged. The 1996 Family Law Act sought to
reform divorce but it was abandoned. It sought to have divorce take
place over a year, initial information meetings, encourage
discussion and reconiliation.
1.4 Dissolution of a civil partnership is on the
same basis as divorce but with only four
facts, adultery is not included.
2 Financial Provision upon Breakdown of
2.1 The family property will be redistributed upon divorce.
In 2011 the divorce rate was 43%. A study conducted
by Fisher and Low showed that following divorce
mens income increased by 23% whilst womens income
decreased by 31%. This suggests that children may
also be worse off upon divorce.
2.2 History of financial provision on
2.2.1 Originally provision for the wife for
the continuance of the marriage.
Coverture meant that upon marriage
the women's property became her
husbands. Ancillary relief was made
available for the innocent wife to
prevent a husband from avoiding his
life long financial commitments.
2.2.2 Sidney v Sidney "According to
your ability you must still support
the woman you have first chosen
and then discarded. if you are
relieved from your matrimonial
vows it is for the protection of the
woman you have injured and not
for your own sake."
2.2.3 Provision for guilty
was wives was also
developed on the basis
of Sydney that
marriage is a life long
commitment. This also
prevents their being a
burden on the state.
2.2.4 1969-1984 no fault divorce
led to principle of 'minimal
loss' or 'equal misery'. The
justification for life long
provision was lost. No fault
provision appears in Section
1 MCA 1973.
2.3 Principle in ancillary
2.3.1 No fault divorce removed the goal of keeping
both parties in the same position as if they
were married. The law commission
suggested that this was unfair where a
divorce had been forced upon an innocent or
unwilling partner. The resdistribution of
finances would not necessairly reflect this.
2.3.2 Law reform in 1984 introduced changes
to ss23-25 MCA 1973. New duties were
incorporated including the welfare of any
children of the marriage must be
considered first and then consider
whether there should be a 'clean break'.
This attempts to provide equality. It is also
not certain whether a clean break is
possible let alone appropriate. It may not
be realistic to suggest that the couple will
never be a part of each others lives
22.214.171.124 Charman v Charman. The president of the
family division said that legislation is in need
of modernisation in the light of social and
other changes. Legislation without a goal is
difficult to achieve and judges are
struggling to apply the law in this area. It is
a social policy field and a new principle
needs to be established or an existing one
126.96.36.199 Maclean and Eeklar. Family forms are now complex. The introduction
of civil partnerships and now same sex marriage means that the
traditional methods of dividing up assets is outdated. For many years
judges have given a petitioning wife one third of her husbands
income. There is no longer a single value and the law has become
more pragmatic rather than the abstract search for truth and justice.
2.3.3 Academics have searched for a coherent principle that
links the case law. Ellman says that a more generalised
approach is needed. Herring has suggested several
188.8.131.52 Spousal support and care for children.
Helps children but child maintenance
is provided for elsewhere.
184.108.40.206 Contract. Damages for breach of contract but
this is problematic as no fault divorce.
220.127.116.11 Partnership or joint enterprise. undoing a partnership of
equals. recognising assets are jointly owned and not
about redistributing. The problem with this is that family
property doesn't exist. Ellman says this only works in a
business context when the motivations and purpose of
the parties is normally clear. In a family relationship this
is uncertain and cannot be conducted on the same basis.
18.104.22.168 Equality. This raises
the question is it
equality of outcome or
equality of opportunity.
22.214.171.124 Compensation. Sacrifices
are made by the wife and
she should be compensated
for this. How do we
determine what is a true
sacrifice it may have been
in her best interests to make
126.96.36.199 The state's interests. saving public
money, child-care issues, symbolic
value of child care, interests of
children, stability of marriage,
post-divorce life and sex
188.8.131.52 If no satisfactory basis can be found for
ancillary relief then the options are: Abolish
maintenance or ancillary relief entirely.
Endorse theoretical account and reform
ancillary relief to fit. try harder and find a new
theoretical basis for the existing law. Pretend
it doesn't matter and focus on statute (Parlour
v Parlour). Pretend it doesn't matter and wait
for Nuptial agreements to become binding.
2.4 Legislative regime
2.4.1 In practice low value every day cases
are not overly concerned with the
legal doctrine. A needs based
approach is taken. The big money
cases and principles distort the
reality of most cases.
2.4.2 Section 25 MCA 1973 provides
guided discretion for the courts
assessment and lists all of the
factors to be considered.(1)
consideration of any children they
are to be paramount. This includes
meeting the children's need for
secure accommodation, rehousing
the other parent satisfactorily.
Meeting the reasonable needs of
both parties. the importance of
observing the need for
self-sufficiency. Jointly owned
capital to be divided equally.
2.4.3 Pre-White (2001) approach. In Dart v Dart the
court interpreted the place of 'reasonable
requirements' in s25(2). There must be an
objective appraisal of what the applicant
subjectively requires to ensure it is not
unreasonable. Non-propertied wives were
expected to demonstrate an extraordinary or
exceptional contribution to the marriage or
direct financial contribution before there were
thought in fairness to deserve it. The courts
seemed to take the approach that it was the
husbands money and assets and so long as
the wife's requirements were met she had no
2.4.4 White v White (2001). Lord Nicholls
rejected attaching significance to the wife's
'reasonable requirements' and favoured a
fairness test. Describing fairness as lying
in the eye of the beholder.Fairness should
be understand as non discriminatory so
that contributions to the marriage and
family in all forms are recognised
regardless of source. This is not to
advocate and equal division but rather to
affirm that importance of considering all the
factors. In the majority of cases one party
will benefit more than another. Before a firm
conclusion is reached it should be
measured against the 'yardstick of
equality'. There should be no discrimination
between husband and wife or between
money earner and home-maker.
2.4.5 Miller v Miller; McFarlane v McFarlane (2006). Fairness is an
elusive concept, grounded in social and moral values. The idea of
fairness may change over time. Like cases should be treated alike
the court should articulate in a broad sense the unspoken principles
guiding the court's approach. Three different elements of fairness.
Meeting the parties future needs; reflecting that a relationship
creates interdependency and therefore provision is needed for the
independence to be re-established. Providing compensation for
any economic disadvantage one party may suffer as a result of the
relationship. Sharing/award to reflect both parties' entitlement to
share in the assets of the relationship as a result of their equality in
the relationship and commitment to each other during the
relationship. The yardstick of equality is an aid not a rule.
184.108.40.206 Baroness Hale refers to this as the three
distributive principles. The objective is to
give each party an equal start on the
road to independent living. there cannot
be a hard and fast rule about whether we
should start with equal sharing and then
departing or whether we should start with
need and then balance to make it equal.
2.4.6 Charman v Charman (2007). All property
apart from exceptions subject to
computation and not a reason to depart
from equality. There is an inter-relationship
between the three distributive principles if
there is conflict then fairness will determine
the outcome. Equal sharing is not a starting
point the enquiry is in two stages
computation and then distribution.
2.4.7 The meaning of compensation. RP v
RP; There is a finite pot of money to
be divided depending on the weight
of the two claims. The parties
contributions equal but different are
to be given importance. On the basis
of equality the word compensation
adds very little. In CR v CR; in
achieving fairness it is important not
to double count and adding
compensation as an extra. In regard
to loss of career prospects this should
not be factored into the outcome. Any
loss of career is likely to have been
compensation by the lifestyle
provided by the husband. In VB v JP;
compensation should not be
separated out but be treated as one
of the strands to be considered in the
fairness test. Any compromise by the
wife and to the outcome if she had
not done so is speculative. It is not
practical to try and place a monetary
value on such a compromise.
220.127.116.11 Two developments occurring at the same time. First shifts between focusing on the statute and focusing on judicial
principles. More erratic than gentle pendulum swing in either direction. Second shifts between focusing on the different
elements of the Section 25(2) exercise in 'big money' judicial decisions, decisions which have also sought to clarify the
overarching ideas of the exercise at the same time.
2.5 Application Section 25 MCA 1973
2.5.1 Lawrence v Gallagher. Civil partnership case.
Stick to the legislated checklist the phrases in
judgments are designed to safeguard against
the unfair outcome. The linguistic devices risk
placing weight on the wrong factors.
2.5.2 Section 25(1) the welfare of
the children is the first
consideration. Suter v Suter
and Jones, Miller, McFarlane.
2.5.3 Section 25(2)(a). Non-matrimonial
assets, White and Lord Nicholls.
Miller, McFarlane and Lord
Nicholls and Baroness Hale.
Difference on what is to be
considered matrimonial property. J
v J (2009) pre acquired gift or
asset or increase in value of the
company after separation. N v N
(2010) If there is a good reason to
depart from the sharing principle
in relation to some of the assets
then it should only look at those
assets not the assets as a whole.
18.104.22.168 K v L (2011) to recognise a wife's
contirbutions to the home and then to
recognise her financial contributions in
addition is not to discriminate but
recognises a substantive
difference.Special contirbution arises in
circumstances in which a spouse's
contirbuition to the creation of the
matrimonial property has been so
extraordinary as to dictate departure
within the sharing principle from the
ordinary consequence of its equal
division.Jones v Jones potential of a
company taken at valuation date of
marriage. S v AG and another lottery
winnings non-matrimonial property. Also
look at earning capacity and subsequent
increases in income/captial.
2.5.4 Section 25 (2)(b) comes within
Miller, McFarlane. J v J (2009) the
starting point for determining the
wife's relationship generated needs
is the substantial income support
provided by the husband during the
marriage. The standard of living
throughout the marriage.
2.5.5 Section 25 (2)(d) impact upon the needs
assessment, compensation arguments
and the equal sharing principle. May
include pre-marital cohabitation depends
on the circumstances. McCartney v
Mills-McCartney (2008), the wife's needs
are the dominant factor as the husbands
fortune was earned before the marriage,
the standard of living lasted only through
the short marriage, the daughter will be
provided for and house generously.
2.5.6 Section 25 (2)(f) core to the
equal sharing principle. Cowan
v Cowan, stellar contributions.
Consider the relationship
between (d) and (f) if
homemaker contributions are to
be valued equally to
breadwinner contributions does
the duration of the marriage
change the outcome of the
2.5.7 Section 25 (g) speaks most
clearly to equal sharing rather
than equal division. Presence of
nuptial contact could be taken
into account here. Very rarely a
2.5.8 Section 25A(3) and 28(1A).
there is a duty on the court to
consider whether a 'clean
break' can be achieved. This
is a procedural rather than a
2.6 The role for private ordering
2.6.1 Private ordering is a way to resolve
financial provision without litigation.
Under Section 33A MCA consent orders
can be made. Under Section 34-35
Separation agreements can be made.
22.214.171.124 Post nuptial agreements Macleod v
Macleod(2008). Setting aside policy
concern re all nuptials aside from usual
contractual reasons the only other reason
is that it is contrary to public policy to
plan for future separation. Pre-nuptial
agreements are against public policy.
Post-nuptial agreements and ss34-35
MCA parliament had laid down a way in
which the couple can make arnagements
for their property and finance whilst
married. The parties can make an
application to vary the arrangements
such an application is based on a
change of circumstances or failure to
make proper provision for a child. The
same applies to anicallry relief
proceedings. Pre-nuptial agreements are
generally thought of as being contrary to
marriage. they provide for an uncertain
and unhoped for future wheras as
post-nuptial agreements provide for a
current situation developed through
126.96.36.199 Crossley v Crossley (2008). Pre-nuptial
agreements are of 'magnetic importance' in this
case. The role of contractual dealing the
opportunity for autonomy of the parties is
becoming increasingly important.
188.8.131.52 Radmacher v Granatino (2009). The majority endorses
MacLeod that public policy arguments against
pre-nuptial agreements are obsolete. Also rejects the
confinement to post-nuptial agreements for two reasons;
s35 MCA and and there is no material distinction
between pre and post.The court when considering
ancillary relief is not bound by nuptial agreements and
the couple cannot oust the jurisdiction of the court by an
agreement, any agreement should be given appropriate
weight. e..g those entered into freely and with a full
appreciation of the implications. The parties should be
held to their agreement in such a case if it is fair to do so.
Nuptial agreements are not contracts and it is irrelevant
to consider whether they are.
184.108.40.206.1 The fact of the agreement is capable of altering what is fair and should
be weighed in the balance. Of the three strands identified in White v
White and Miller v Miller it is need and compensation that is most
relevant as an agreement could leave one party in real need while the
other flourishes. Weight should be given to a nuptial agreement through
respect of individual autonomy. Hale says that marriage is a status and a
contract so that parties don't get to decide all it's legal consequences.
220.127.116.11 Reform has been suggested by Baroness Hale in
Macleod. The law com have also suggested reform
based on arguments of supporting marriage,
autonomy, certainty and cost of discretion,
international perspective, hardship and social cost of
reform. The role of marriage and how we marriage
depends on whether we think nuptials are relevant.
18.104.22.168 V v V (2011) the non-discriminatory approach
identified is in line with the autonomy
principle in Granatino. The upshot of Whit
and Granatino is that earlier reasoning
developed as part of the balancing act in
judicial discretion conferred by MCA were
wrong in law and so may not have produced a
fair result judged by reference to the correct
approach to statutory discretion.
2.7 Legal regulation and financial position cohabitees
2.7.1 Sutton v Mischcon de Reya (2004).
There is nothing contrary to public
policy in a cohabitation agreement
governing the property relationship
between adults who intend to cohabit
or who are cohabiting for the
purposes of enjoying a sexual
relationship. The contract will be
between the cohabitors.
2.7.2 Property adjustment for the childrens
benefit comes under s15 Children Act 1989
A v A (1994). Maintenance of children
comes under Section 1 Child Support Act
1991 R (kehoe) v Secretary of state for work
and pensions, Hale says focus should be on
children's rights, Hope says neither parent
has a right against the other.
2.7.3 Ownership of real property. Two stage to
the analysis. (1) Establishing the
existence of the trust- Is there a common
intention that the shares be other than
those at law? (2) Quantifying each party's
share-In what proportions should be the
beneficial shares be held?
22.214.171.124 Stage (1) lloyds Bank v Rosset (1991),
contributions to the purchase price by the
partner who is not the legal owner gives
rise a constructive trust. BUT Stack v
Dowden (2007) AND Abbott v Abbott
(2007) AND Jones v Kernott (2011)
intention can be inferred and may be
imputed but not clear.
126.96.36.199 Stage (2) Oxley v Hiscock (2004) constructive trust and
proprietary estoppel would be the same in this case. If
there is a common intention for both to have a beneficial
interest in the property but there is no evidence as to what
the intended shares would be then it must be decided on
what is fair at the time. In Stack v Dowden (2007) the
fairness/broad merits approach was rejected and advocated
a search for the parties true intention whether actual
inferred impliedimputed. This can take place with the
parameters of fairness.
188.8.131.52.1 Jones v Kernott (2011) attempted to clairfy Stack,
Where people purchase property jointly then
assumption intend jointly in equity. Where in sole
name one party. Both have a common intention
constructive trust. This is practical and recognises the
commitment of joint ownership. The presumption can
be rebutted, where the parties have separate
finances this is strong evidence. An inference is
drawn where an actual intention is deduced from the
dealings of the parties; an imputation is one
attributed to the partiesby the court. It will often be
difficult to find a common intention as to the
proportions to be shared in this case the court must
impute and intention. Where intention can be
discovered this must be followed even if the court
does not consider it fair. Fairness should be
determined by all the circumstances. There is a
difference of opinion between the judges on the
2.7.4 Reform. Cohabitation Bill (2009). Proposes that a cohabitant be
defined as living together as a couple with either a child or have
lived together for a period of 5 years. The standard prohibited
degrees would also apply. There is also to be discretion for
serious financial hardship to apply in 2 year cases. Cohabiting
families are increasing and it is important to protect them.