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Grounds for divorce- Dissolution-> Adultery
Matrimonial Causes Act 1973
The only ground for a divorce or dissolution is S1(1) irretrievable breakdown. (Theoretically no-fault)
5 facts to evidence a marriage has irretrievably broken down:
S1(2)(a) Adultery (cannot use adultery to prove that a civil partnership has IBM) - and intolerable to live with- 6 months upon discovery of affair(last act of adultery) intolerable to live with (not applicable for same sex affair, even with same sex couple)-> cannot rely on own adultery
S1(2)(b) Behaviour - O'Neill v O'Neill
S1(2)(c) Desertion (2 years) - G v G with no intention to return, no communication needed
Beeken v Beeken No just cause- violence or drinking problem- justified to leave
S1(2)(d) 2 years' separation with consent - Mouncer v Mouncer no marital conduct even live in same house(Meal arrangement, financial arrangement, social)
S1(2)(e) 5 years' separation
Buffery v Buffery- If proved one without the other, divorce decree not granted
List of documents needed for filing a divorce
D8 Divorce Petition + Service Copies (3)
Original marriage certificate- or certified copy from registrar (need translation if not married in UK)
Statement of Reconciliation
Court fee or fee exemption form (£550 all inclusive fee)
Explain why using behaviour
Draft letter/ petition for prior approval
Any sensitive timing issue?
To other party/ lawyer
Set the tone for the rest of negotiations
Draft petition for approval prior to issue
Separate letters for children issues
Follow examples of good practice e.g. P.8 Guide to Good Practice
Which law will the foreign court apply?
does it depend on religion or nationality?
might the foreign court apply English law in accordance with Rome III or Article 15 of the EU Maintenance
Regulation? If so, how will it establish what English law is?
is there a limit on the quantum or duration of maintenance?
how is child maintenance dealt with?
is conduct taken into account?
what approach is taken to pre-owned or inherited property?
is the legal ownership of an asset likely to be significant?
what weight is given to any nuptial agreement?
can the court vary post-nuptial settlements (for example, trusts)? Family Law
are there clean break powers?
What approach is likely to be taken to a party's capital and income needs?
Where are the pensions? Can the court make an order against foreign pensions, or indeed any pensions? If not, is there any trade-off?
How will the foreign court approach assets held in, and income earned by, a company in which a party has an interest? ie. Pension sharing orders, pre-nuptial agreement
What approach does the foreign court take to trust assets and income? Is it likely that these will be considered to be nuptial or non-nuptial?
Will the foreign court make inter parties costs orders? Will they be for meaningful amounts?
Will the foreign court recognise the marriage or civil partnership and have jurisdiction to deal with dissolution? This is of particular relevance to same sex marriages and civil partnerships.
Will a decree of divorce from the foreign jurisdiction be recognised in all countries that it needs to be?
Where are the assets? Will the financial orders obtained be enforceable in the jurisdiction where the assets are?
What means of enforcement exists in the foreign jurisdiction and how effective and costly are they?
If a financial order is made abroad, will the other party still be able to apply to the English court for further financial provision?
Can freezing orders or other relevant interlocutory injunctions be obtained in the foreign jurisdiction and enforced?
Will foreign recognitions be automatic or require a new set of proceedings in the country where enforcement will take place?
Will there be tax or immigration consequences of admitting domicile or residence in a country?
Will there be any impact of the choice of jurisdiction (or any orders made) on the parties' wills, inheritances and issues of forced heirship?
What impact will a forum dispute have on children, health and well-being of the family as a whole?
Drafting Behaviour Particulars
Draft petitioner as first person "I" and respondent as "Respondent"
Intro, for example, "Throughout the marriage" or "Since"
FACTS in chronological order
Select 5-6 'more serious incidents' (including 'first, worst, last') as a basis
When Where What Who How
Try not to be provocative/ hostile
Conclusion "As a result (say what happen)"
Action do not need to deliberate upset partner
Do not criticised role as a parent
Box 7.2- Date Order
Emotional impact throughout the marriage
Affair plus taunts about others
Suspicion of same sex relationship
Last- material of an explicit nature
Jurisdiction Family Law
Habitual Residence: centre of activity ie. Tax, property, employment
Domicile: Born with, can change, permanent resident (usually nationality)
Brussels II: (Any EU state other than Denmark)
No 2201/2003 known as Brussels IIa (currently under review by the European Commission). The English courts have jurisdiction to hear a divorce suit only where: (Replace ENGLAND AND WALES for any court you would like to proceed)
(a) both parties are habitually resident in England and Wales; or
(b) both parties were last habitually resident in England and Wales, and one of them still resides there; or
(c) the respondent is habitually resident in England and Wales; or
(d) the petitioner is habitually resident in England and Wales and has lived there for at least a year immediately before the petition is filed; or
(e) the petitioner is domiciled in England and Wales and has been residing in England and Wales for at least six months immediately before the petition is filed; or
(f ) both parties are domiciled in England and Wales; or
(g) if none of (a)-(f ) above applies and no court of another EU State has jurisdiction, either of the parties is domiciled in England and Wales on the date when the proceedings are begun.
England and Wales- Sarah can issue as petitioner under (d) and (e), Wilhelm can issue as petitioner under (c)
Germany- Sarah can issue as petitioner under (b) and (c), Wilhelm can issue as petitioner under (b), (d), (e)
Able to dispute over jurisdiction if applicable
Act quickly before other party proceed proceedings in another jurisdiction
If started, instruct another solicitor in that jurisdiction
Choice of forum
1. Act quickly
2. Instruct a family lawyer in Germany to advise on a. Laws that a German court will apply b. Type/ quantum of financial orders c. Any material difference in law/ procedure/ enforcement
3. Compare position England and Wales v Germany and advise client about pros and cons
INTRODUCTION AND CHILDREN'S RIGHTSParentage- Natural/ Legal
Parenthood- Disputes of Maternity and Paternity
Parental Responsibilities- Automatic/ Acquired
Disputes of Children- custody/ visitation/ upbringing
Adoption- Policy and changes
Who is a child?
S1(1) FLRA 1969 Family Law Reform Act: 18 is the age of majority
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