Principles of Family Law - Assignment Example

Principles of Family Law Question 1 When answering the above it is necessary to look at the recognised ways in which an applicant can apply for divorce procedures. Under the Matrimonial Causes Act 1973 s1 an applicant can apply for a divorce if the marriage has broken down irretrievably. There are five ways in which a court can come to the conclusion that there has been an irretrievable breakdown of the marriage. These include where the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; where the respondent has behaved in such a way that the petitioner cannot reasonable be expected to live with the respondent; where the respondent has deserted the petitioner for a continuous period of at least 2 years preceding the presentation of the petition; where the parties have lived apart for a continuous period of 2 years and the respondent consents to the petition; or the parties have lived apart for a continuous period of 5 years. The Divorce Reform Act 1969 introduced the notion of irretrievable breakdown of marriage in the same terms as have now been included in the Matrimonial Causes Act 1973. When looking at a petition for a divorce based on an allegation of adultery the court would need to be satisfied1 that not only had the respondent committed adultery but that there was evidence to justify a finding that this was so offensive and deeply wounding that any further married life with the respondent would be intolerable2. The introduction of the requirement to prove that the petitioner must find it intolerable to live with the respondent after they have committed adultery seems to make a mockery of the law’s traditional insistence that adultery was a serious matrimonial offence which required a high standard of proof3. Under the Reform Act the form asks the respondent whether the adultery was admitted and an affirmative answer will constitute proof4. Under this Act it is no longer necessary to name the third party involved, even if the petitioner knew his or her identity5. In this particular instance Mandy could opt for either trying to prove that Andy has been committing adultery with Cassandra or that Andy’s has behaved in such a way that she cannot be expected to continue to live with him. The difficulty she might face in trying to prove adultery is that although he has been photographed with Cassandra in some rather salacious photographs this might not be sufficient for the court to accept that he has committed adultery. It may well be that Andy would attempt to contest the divorce on the grounds of adultery and then Mandy would be required to prove that he has committed adultery. If Mandy were to rely on the behaviour of Andy she is more likely to be successful as she could point to the fact that he has previously had a problem with drugs and had to go into a rehabilitation clinic. She could use the fact that he is now behaving in the same manner as he used to when he was taking drugs before and that because of this she believes he may be taking them again. If there is any proof that he is taking drugs again she should be able to get a divorce fairly easily as the courts should come to the conclusion that she cannot be expected to live with him under these circumstances. Question 2 If the court decides to grant Mandy the divorce they would then have to decide how the money and property should be apportioned. The legal framework for deciding on how the finances should be decided is governed by the Matrimonial Causes Act 2973 as well the Family Proceedings Rules 1991 (SI 1991 No 1247). This has subsequently been amended by the Family Proceedings (Amendment No 2) Rules 1999 (SI 1999 No 3491). From June 2000 onwards a new set of procedural rules for dealing with applications for financial provision came into force. The main aims of the new procedure were to give the court more control over the issues raised and the evidence used in each case, to provide better ways of controlling costs, to direct parties towards settlement where possible and to encourage full and frank disclosure. Section 25 of the Matrimonial Causes Act 1973 lays down the matters that the court will take into consideration when deciding on how the money should be divided. Under s25 it states the court shall in particular have regard to the following matters- (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to he marriage to take steps to acquire. (b) The financial needs, obligations and responsibilities each of the parties to the marriage has or is likely to have in the foreseeable future (c) The standard of living enjoyed by the family before the breakdown of the marriage (d) The age of each party to the marriage and the duration of the marriage (e) Any physical or mental disability of either of the parties to the marriage (f) The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family (g) The conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard it. Having decided which of the above factors are relevant for the particular case before the court they will then weigh up each relevant factor to decide which are crucial to the proceedings and which are less important. It is obvious that one of the most relevant factors will be the income and earning capacity of the parties and any other financial resources that might be applicable. When deciding on a settlement the courts have the power to order a lump sum payment or periodical payments. The decision is often based on the ability of the parties to be able to raise a lump sum amount so that a clean break can be achieved. As many people do not have sufficient resources to make a lump payment the courts are likely to order periodic payments in a large majority of cases. When looking at earnings the courts are entitled to look at not only what the spouse is earning at the time of the application but also to take into account what he or she may be capable of earning. To assess this the court will require clear evidence of relevant skills, marketability and opportunity. When considering other resources the courts will only consider those that are in realistic terms available. This could mean that a personal injury claim for damages may not be taken into account6. A court can draw inferences as to resources they believe should be available if there is sufficient reason for doing so7. This may well happen if there has been a serious non-disclosure by one of the parties8. Future inheritances will not be included as an additional resource. The courts can consider resources available from a cohabitee but that income would not be simply added to that of the party9. It will be assumed that cohabitees with an income will use some of it to contribute to the household in which they live10. If a claimant spouse remarries his or her right to maintenance will cease. A claimant spouse who is intending to remarry a wealthy person may only get limited capital provision11. Problems can arise where an asset was purchased or inherited by one spouse before the marriage. Such property can still be taken into account12 but on the actual facts of the case it may be left out of the account13. When assessing the needs of the parties the courts will take into account details of the mortgage, gas and electricity bills. Needs can be interpreted to include any reasonable expense of living and therefore should be fully investigated. Obligations can include any legal or moral obligations to meet an expense including obligations to third parties such as relatives, cohabitees or children who are being supported14. This could mean in some cases that the resources of one man might have to be divided between his former wife and his new wife or cohabitee. The applicant spouse will normally take precedence. When considering the standard of living of the family before the breakdown this will only be done in a general sense as it will rarely be possible to maintain the exact standard. An exact standard of living can only be maintained where the couple are wealthy. The age of the couple will also play a part in the decision making process. This might be the case where the age of the divorcing couple is such that it is unrealistic to expect that party to work. The duration of the marriage can impact on the settlement if the marriage has been an extremely short one15. Where the marriage has been very short the courts will look to see if either spouse has suffered financially as a result of the marriage before deciding whether a provision should be made. In some of these cases an award is made but at a very low level16. When examining the conduct of the parties it used to be the stance of the court that they would only take this into account if the conduct was ‘gross and obvious. This was modified in 1984 into the current test. The current test is that the conduct will be taken into account if in the opinion of the court it would be inequitable to disregard it. Adultery is not considered sufficiently serious unless there is some aggravating factor such as the adultery is with the father in law17. The case of Wachtel v Wachtel [1973]Fam 72 proposed the use of the one third rule. The intention of the one third rule was that the spouse claiming provision should be ordered such provision as would result in his or her getting one third of the joint capital and one third of the joint income. The one third rule was a staring point rather than a rule and it was intended primarily for the case where one spouse had significantly more assets than the other. where there is a clean break and both parties have significant assets equality of division has been seen as more appropriate18. The one third rule has been partly replaced where there is a significant level of income or capital by the principle of seeking to meet the applicant’s reasonable needs. The case of Conran v Conran [1997] 2 FLR 615 highlights the problems of seeking to meet reasonable needs. The principle of equality has arisen where wealth has been built up or was being earned by one spouse rather than both spouses. In the case of White v White [2001] 1 All ER 1 the House of Lords said that before making an award a judge should check tentative views against a yardstick of equality of division, and should depart from this equality only if there was good r4eason for doing so. In this case the couple had built up a successful dairy farm during their 30 years of marriage which was worth £3.5 Million. At first the court held that the wife’s reasonable needs would be met by her having £980,000 of the joint assets. The Court of Appeal increased this to £1.5 million and both spouses appealed against this. The House of Lords upheld the decision of the Court of Appeal on the basis that the efforts of both had built up the business and there was no reason why the wife should be limited by her reasonable needs. Equality of division has since been applied in Dharamshi v Dharamshi [2001] 1 FLR 736, D v D (Lump Sum: Adjournment of Application) [2001] 1 FLR 633 and Cowan v Cowan [2001] 2 FLR 192. It is likely in this particular case that the courts would come to a similar conclusion and make a substantial award to Mandy especially as she gave up her career as a model to help manage her husband’s career as a golfer. It is unlikely that any account would be taken of Andy’s adultery when making the award as there are no aggravating factors surrounding the affair. In Miller v Miller19 the court applied the principle of need compensation and sharing when making its decision on the amount to award the applicant. This case is very similar to the above in that the wife gave up her successful career as a solicitor to look after the children and support her husband in his business. The courts took into account the fact that she had given up her career and potential earning capacity and took this into consideration when making the award as well as taking onto account the fact that the marriage had only lasted 3 years. Question 3 When examining the situation with Debbie and Fred the decision as to whether the order made under the Family Law Act 1996 will continue could be dependent on the wishes of Debbie. In general terms the court will not take account of the relationship between Fred and his daughter as proof that he should be allowed to live in the house again. The courts have a duty to consider the welfare of the child as paramount and despite the fact that Fred has never hit his daughter before they will be mindful of the fact that witnessing her mother being beaten can be damaging to the child. Debbie would be entitled to apply for a continuation of the occupation order20. The court can grant an occupation order if they are satisfied that the applicant or any relevant child is likely to suffer significant harm from the conduct of the respondent if such an order is not made21. An occupation order can exclude Fred from the house22. As well as taking into account the harm that the applicant and child might suffer the courts also have a duty to consider the housing needs of both parties as well as financial resources and other considerations as listed under the Family Law Act 1996 s36 (6). If Debbie feared a further attack by Fred she could apply for a non molestation order, if granted restrictions can be placed on Fred to prevent him from harassing her or her daughter23. When granting these orders the court may accept undertakings by the parties which would prevent a power of arrest being attached to the order24. The Domestic Violence Crime and Victims Act 2004 has repealed s41 of the Family Law Act 1996 which required the court when considering the nature of the relationships of cohabitants or former cohabitants to have regard to their non married status. This would mean that Debbie would be entitled to be treated in the same way in which a married woman would be with regard to dealing with the domestic violence. Occupation orders as often referred to as ouster orders. The FLA 1996 distinguishes in the first instance between applicants who are entitled to occupy the family home and those who are not. Non entitled applicants may only get orders against former spouses, cohabitants or former cohabitants whereas entitled applicants can get access to the fullest protection. Occupation orders can be declaratory or regulatory. The latter regulate the occupation of the family house, whereas the former create rights for the entitled applicant. Under s33 of FLA 1996 the courts have the power to make regulatory orders. When making such orders the courts will take into consideration the housing needs and resources of the parties and any relevant children, the financial resources of the parties, the likely effect of an order on the health, safety and well being of the parties or any relevant child and the conduct of the parties in relation to each other. The balance of harm test requires the court to make a regulatory order if it appears that the applicant or relevant child is likely to suffer significant harm attributable to the respondent if the order is not made. The courts are entitled to take into account whether the respondent is likely to suffer equal or greater harm if the order is made25. Harm has been defined in s63 FLA 1996 as ill treatment or the impairment of health and in relation to a child it means the same as well as including impairment of development. When looking at the situation in respect of Fred and Debbie it could be argued that because the accommodation Fred is living in is damp that there is a detriment to the health of Fred as the conditions are worsening his pre existing problem with asthma. It may well be in such circumstances that the court would decide that allowing the occupation order to continue would cause Fred to suffer a greater harm than would be suffered by Debbie or the daughter if he was allowed to return to the home. The fact that he is also keen to get back together with Debbie as a family could also effect the courts decision. A further factor that could persuade the court that it would be better to not issue a further occupation order is the fact that the relationship between the child and Fred is very good and that he has maintained regular contact with her throughout the separation. There is nothing to suggest that he has attacked Debbie since the incident which led to him being excluded from the house which could also impact on the court’s decision. Debbie might have to let Fred live in the house with her and her daughter or find alternative accommodation for them both if she does not like the idea of him being there. If the courts allow Fred to occupy the house they may require him to allow Debbie to enter and remain in the house or part of the house. Question 4 . When dealing with this situation it is necessary to have a brief discussion about parental responsibility given that Fred and Debbie are not married. It odes not state in the situation above whether Fred was given parental responsibility for Jade when her birth was registered. If Fred was not entered onto the birth certificate as the father of Jade then he would not have an automatic right to parental responsibility and would have to apply to the courts to obtain this. Without parental responsibility Fred would not be able to prevent Debbie from taking Jade out of the UK. If Fred does have parental responsibility he can apply to the courts to prevent the removal of Jade from the UK. It is possible that Debbie would be able to take Jade permanently out of the UK if Fred did not raise any objections to her removal. If Debbie attempts to remove Jade from the UK without the permission of Fred she could face charges under the Child Abduction Act 198426. Under this Act it is an offence for a person connected with the child27 to remove a child under 16 from the UK without the appropriate consent28. By criminalising the act of taking a child out of the country in such a manner the court has effectively given the police a role to enforce an action where there is no court order in place29. Where the person taking the child is a parent of that child they can still be charged with kidnapping if the child does not consent to the removal30. Where there is reasonable suspicion that an offence will be committed the police have the power to arrest a parent and to prevent the removal of the child from the country31. If the parent has already taken the child from the country it may be possible to have the abductor extradited back to the country of origin with the child if there is an agreement between the two countries. The use of section 8 orders can assist in preventing the removal of the child from the country32. A residence order allows the residential parent to remove the child from the country for up to one month33. If the non resident party is afraid that the resident parent is likely to permanently remove the child from the UK he may ask the court to impose further restrictions34 so that any removal without consent is prohibited35. The parent with care needs to make teachers or childminders aware of the risk so that the parent who is likely to abduct the child is not allowed to remove the child from their care. Where it is feared that the non resident parent may abduct the child the resident parent can ask the courts to order supervised visits. Where it is the non resident parent who is concerned about the removal of the child from the country as in this instance the non resident parent can ask the Passport Agency not to issue a passport36. Where the child already has a United Kingdom passport the court may require its surrender if there is an order prohibiting or otherwise restricting the Child’s removal from the United Kingdom37. Where it is feared that a child is about to be abducted the police have the power to issue an all ports warning38. In order to issue this the police must be satisfied that the danger of removal is ‘real and imminent’ and that it might occur within the next 48 hours39. A court order is only required if the child is over the age of 1640. It is likely in this case that Fred would object to her removal as he is hoping to get back together as a family. It is therefore likely that if Fred does have parental responsibility that he would take the above action to prevent Debbie from removing Jade from the UK. Debbie could face criminal charges for abduction if she tries to remove Jade from the UK without the necessary permission. Bibliography Clarke Hall and Morrison, Vol 2 para 5 Cretney & Masson, Principles of Family Law, 6th Ed, 1997, Sweet & Maxwell Criminal Law Revision Committee 14th Report, Offences Against the Person Cmnd 7844 (1980 Fortin, J., ‘Children’s Rights and the Developing Law’ (2003) Butterworths Home Office Circular 21/1986 para 9 Home Office Circular 75/1984 para 6 Inns of Court School Of Law, Family Law in Practice, 5th Ed, 2002, Oxford University Press Lord McKay [1991] Fam Law 457 Lord Stow Hill Official Report (H.L) Vol 303 Col 296 Milka Oldham, Statutes on Family Law, 10th Ed, 2002, Blackstone’s Practice Direction [1986] 1 All ER 983 Report of the Matrimonial Causes Procedure Committee (Chairman: the Hon Mrs Justice Booth DBE) (1985) para 2.15 Table of Cases Atkinson v Atkinson (No 2) [1996] 1 FLR 51 Bailey v Tolliday (1982) 4 FLR 542 Baker v Baker [1995] 2 FLR 829 Barnes v Barnes [1972] 1 WLR 1381 Bastable v Bastable [1968] 1 WLR 1684 Brett v Brett [1969] 1 WLR 487 Burgess v Burgess [1996] 2 FLR 34 C v C (Financial Provision: Personal Damages) [1995] 2 FLR 171 Conran v Conran [1997] 2 FLR 615 Cowan v Cowan [2001] 2 FLR 192. D v D (Lump Sum: Adjournment of Application) [2001] 1 FLR 633 Dharamshi v Dharamshi [2001] 1 FLR 736 Ette v Ette [1964] 1 WLR 1433 H v H (Family Provision: Remarriage) [1975] Fam 9 Heseltine v Heseltine [1971] 1 WLR 342 Krystman v Krystman [1973] 1 WLR 927 Macey v Macey [1981] 3 FLR 7 Miller v Miller [2006] UKHL 24 [2006] 2 A.C. 618 [2006] 2 W.L.R. 1283 [2006] 3 All E.R. 1 [2006] 1 F.L.R. 1186 [2006] 2 F.C.R. 213 [2006] Fam. Law 629 (2006) 103(23) L.S.G. 28 (2006) 156 N.L.J. 916 (2006) 150 S.J.L.B. 704 Times, May 25, 2006 Independent, May 26, 2006 O’D v O’D [1976] Fam 83 R v D [1984] AC 778 Re D (a minor) (child: removal from the jurisdiction) [1992] 1 FLR 637 S v F (Occupation Order) [2000] 1 FLR 255 (FamD) Thomas v Thomas [1995], 2 FLR 668 Wachtel v Wachtel [1973]Fam 72 Table of Statutes Child Abduction Act 1984 Divorce Reform Act 1969 Domestic Violence Crime and Victims Act 2004 Family Law Act 1996 Family Proceedings (Amendment No 2) Rules 1999 (SI 1999 No 3491). Family Proceedings Rules 1991 (SI 1991 No 1247). Matrimonial Causes Act 1973 Read More