Family Introduction Notes

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:

1. 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

2. Behaviour – O’Neill v O’Neill

3. 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

4. 2 years’ separation with consent – Mouncer v Mouncer no marital conduct even live in same house(Meal arrangement, financial arrangement, social)

5. 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)

Communication

To Myles

• Correct Tone

• 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

Jurisdiction

Procedural-

• 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)?

• 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?

Enforcement considerations

• 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?

Ancillary considerations

• 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

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...

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