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Supervision 2 - Divorce Divorce/Dissolution Procedure
1. Easier or Harder?
a. Kahn-Freund says promoting marriage is more complex than this crude question. b. Davis & Murch say too easy to dismiss as conservative/liberal. The 1996 Reforms emasculates the Court's duty to inquire and becomes box-ticking. Hasson agrees. Bromley says law becomes template for lawyer to fit facts. c. Restrictive emphasises seriousness of marriage. Forces unhappy people together. d. Scherpe says easy divorce promotes marriage by reserving for "good quality" rels e. Hasson says "fault" doesn't lead to easier divorce: it makes it quicker than separation factors; but the 1996 Act would make quicker than separation factors. But fault does make it more emotionally difficult. f. Law Commission says the court should merely retreat to supervising financial ordering. Their survey showed 90% wanted mutual consent divorce but many also want fault based quicker divorces. g. Hasson states the CPA 2004 was a failed opportunity to refresh the law on separation. They should look at how marriage is and not how it ought to be.
2. Grounds of Divorce/Dissolution (s1 MCA / s44 CPA) a. There is a one year bar per s3 MCA 1973 and s41 CPA 2004. b. There is only one ground "irretrievable breakdown" proved by five facts: i. Adultery & Intolerability (ONLY MARRIAGE)
1. It must be voluntary and not rape per Redpath v Redpath.
2. Must be heterosexual full sex per Dennis v Dennis.
3. Two don't have to be causally linked per Cleary v Cleary.
4. Intolerability is subjective not objective - Goodrich v Goodrich.
5. Cohabitation after of <6 months is fine per s2 MCA. ii. Behaviour
1. Objective test against reasonable husband/wife per Livingstone Stallard v Livingstone Stallard.
2. Sexual complaints aren't sufficient per Pheasant v Pheasant.
3. Collection of trivial acts is good per O'Neill v O'Neill.
4. Physical or emotional abuse is good per Stevens v Stevens.
5. Financial Irresponsibility per Carter-Fea v Carter-Fea.
6. Cohabitation <6 months is fine per s2(3) MCA or s45(6) CPA. iii. Desertion
1. Must be for two years
2. Where living together separately it isn't good per Le Brocq v Le Brocq.
3. Must leave without good reason: Belief in adultery or mental illness isn't good per Glennister v Glennister. 5
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