Divorce Law: Matrimonial Causes Act 1973

Irretrievable Breakdown of Marriage

1. Buffery v Buffery
H and W had been married for 20 years; their children had grown up and left
home. H and W had gradually "drifted apart"; W complained that H did not take
her out, that they had lost the ability to talk to each other, and that they had
"nothing in common". Her petition for divorce was denied: although the marriage
had apparently broken down, W had not shown any unreasonable behaviour on
H's part and so had failed to satisfy the requirements of s.1(2)(b).
2. Biggs v Biggs
W obtained a decree on the basis of H's adultery. H had been in prison, released
and W told her solicitor not to finalise the divorce. Relationship deteriorated, W
applied for the decree nisi to be made absolute. Held: appeal rejected, marriage
had not broken down irretrievably
3. Richards v Richards
Facts: Jerilyn wanted to ride in Leos truck. Leos employer made her sign a
passenger authorization, which included exculpatory language. Then they got
into an accident in the truck where Jerilyn got injured. Jerilyn tries to sue her
husband and his employer. The trial court found for the defendants by summary
judgment, citing the exculpatory clause in the contract. The intermediate
appellate court affirmed, and Jerilyn appealed to the Supreme Court of
Wisconsin.
Issue: Shall the exculpatory agreement be enforced against Jerilyn, barring her
suit?
Rule: A court may find an exculpatory agreement void if on balance the interest
in compensating injured people outweighs the freedom of contract.
Analysis: The majority says that three factors come together to make the
exculpatory agreement void:
1.
The contract has two purposes, but they arent both clear at a glance. The
contract both serves as a permission slip in a sense and also as a release of
the company from liability. The court says that the two parts should have been
split up into separate agreements to make it clear to the signer just what they
were getting into.
2.
The release is very broad, which means that it is vague as well as too
biased towards the company which drafted the contract.
3.
The contract is a standardized form that is take it or leave it without room
to bargain.
Any of the factors alone would not be enough to void the agreement, but the
court says that taken together they swing the balance in favor of the public
policy that injured people should have the opportunity to be compensated.
Conclusion: The lower courts are reversed.

S1(2)(a): Adultery Intolerability

1. Dennis v Dennis
Adultery involves voluntary/consensual sexual intercourse with a 3rd party of the
opposite sex
2. Re B (Children) Care Proceedings: Standard of Proof
There had been cross allegations of abuse within the family, and concerns by the
authorities for the children. The judge had been unable to decide whether the
child had been shown to be likely to suffer significant harm as a consequence.
Having found some evidence to suggest that sexual abuse had taken place, the
judge had been concerned not to transfer the burden of proof.
Held: The House declined to depart from In re H and to overrule re M and R. The
task of the local authority in carrying out an investigation differs from that of the
court which is to hear the evidence put forward on behalf of all the parties to the
case and to decide, first, whether the threshold criteria are met and, second,
what order if any will be best for the child.
The balance of probabilities remains the sole and simple test and standard of
proof. That test is not qualified by the seriousness of the allegation. The court
should have instructed the expert that it was not satisfied that the allegations
were true, [and] they cannot form the basis for asserting that there is a current
risk of the same type of harm occurring in the future. Inherent probabilities must
be assessed in the light of the actual circumstances of the case.
Lord Hoffmann said: If a legal rule requires a fact to be proved (a fact in issue),
a judge or jury must decide whether or not it happened. There is no room for a
finding that it might have happened. The law operates a binary system in which
the only values are 0 and 1. The fact either happened or it did not. If the tribunal
is left in doubt, the doubt is resolved by a rule that one party or the other carries
the burden of proof. If the party who bears the burden of proof fails to discharge
it, a value of 0 is returned and the fact is treated as not having happened. If he
does discharge it, a value of 1 is returned and the fact is treated as having
happened.
and the time has come to say, once and for all, that there is only one civil
standard of proof and that is proof that the fact in issue more probably occurred
than not.
and There is only one rule of law, namely that the occurrence of the fact in issue
must be proved to have been more probable than not. Common sense, not law,
requires that in deciding this question, regard should be had, to whatever extent
appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent,
it is common sense to start with the assumption that most parents do not abuse
their children. But this assumption may be swiftly dispelled by other compelling
evidence of the relationship between parent and child or parent and other
children.
Baroness Hale of Richmond said: if a judge finds it more likely than not that
something did take place, then it is treated as having taken place. If he finds it
more likely than not that it did not take place, then it is treated as not having
taken place. He is not allowed to sit on the fence. He has to find for one side or
the other. Sometimes the burden of proof will come to his rescue: the party with
the burden of showing that something took place will not have satisfied him that
it did. But generally speaking a judge is able to make up his mind where the truth
lies without needing to rely upon the burden of proof. and
The threshold is there to protect both the children and their parents from
unjustified intervention in their lives. It would provide no protection at all if it
could be established on the basis of unsubstantiated suspicions: that is, where a
judge cannot say that there is no real possibility that abuse took place, so
concludes that there is a real possibility that it did. In other words, the alleged

perpetrator would have to prove that it did not. and

the standard of proof in finding the facts necessary to establish the threshold
under section 31(2) or the welfare considerations in section 1 of the 1989 Act is
the simple balance of probabilities, neither more nor less. Neither the
seriousness of the allegation nor the seriousness of the consequences should
make any difference to the standard of proof to be applied in determining the
facts. The inherent probabilities are simply something to be taken into account,
where relevant, in deciding where the truth lies. and there is no logical or
necessary connection between seriousness and probability
3. Goodrich v Goodrich
When determining intolerability the question should be whether 'this' petitioner
finds it intolerable to live with the respondent, not whether a reasonable
petitioner would
4. Cleary v Cleary
Adultery can be the reason behind a divorce even if it did not play a significant
part in the breakdown of the marriage. W committed adultery, H forgave her and
took her back. W then left H, subsequent behaviour which H found intolerable
not the adultery. Held: supported the husband, two factors did not have to be
linked
5. Carr v Carr

S1(2)(b): Behaviour
1. Bradley v Bradley
H was violent towards W, she applied for divorce but was still living with him 2
years after the behaviour started. Held: allowed her claim, she had no choice but
to live with him so should not be barred from making a claim
2. Katz v Katz
3. Buffery v Buffery (same case as above)
4. Livingstone-Stallard v Livingstone-Stallard
Section 1(2)(b) is expressed in very simple language, and is . . quite easy for a
layman to understand. The court considered the necessary test for whether
unreasonable behaviour had reached a point such as to allow a decree of
divorce.
Dunn J said: Coming back to my analogy of a direction to a jury, I ask myself the
question; would any right-thinking person come to the conclusion that this
husband has behaved in such a way that this wife cannot reasonably be
expected to live with him, taking into account the whole of the circumstances
and the characters and personalities of the parties?
Statutes: Divorce Reform Act 1969 1(2)(b)
5. Birch v Birch
In 2010 the parties compromised their respective claims for ancillary relief. This
compromise was embodied within a consent order approved by the court on 26
July 2010. The order recorded the following undertakings given by W:
4.3 To discharge the mortgage on the FMH and to use her best endeavours to
secure the release of H from any liability under the mortgage; or
4.4 To secure his release from the mortgage by sale of the property.

W was unable to secure the release of H from his mortgage obligations. On 18

November 2011 W applied to vary the undertakings so that H would only be
released from the mortgage upon their youngest child reaching the age of 18 or
completing their full-time education.
Both the District Judge, who heard the matter at first instance, and the Circuit
Judge, who heard the first appeal, held that Omielan v Omielan [1996] 2 FLR 306
had the effect of excluding the court's jurisdiction to entertain W's variation
application.
The argument before the Court of Appeal
W argued that the undertaking given at 4.4 was in reality an order for sale under
section 24A of the MCA1973 to which the power of variation under section 31(3)
and section 31(2)(f) applied without qualification.
H argued that the undertakings were part and parcel of the overall financial
order. The variation sought by W would convert the order made into a property
adjustment order of an entirely different type. It would strike at the "very core" of
the primary section 24 order and not just the ancillary undertakings for sale.
The conclusions of McCombe LJ
Giving the leading judgment, McCombe LJ emphasised that the courts have
sought to achieve finality in determining the financial (and in particular capital)
claims of the parties to a marriage. Thorpe LJ held in Omielan that the court had
no jurisdiction to "revisit the territory" of those adjustments, in the absence of a
vitiating factor such a fraud, misrepresentation or material non-disclosure.
McCombe LJ found that the property adjustment order in favour of W would not
have been made in the absence of the undertakings in question. To accede to the
proposed variation would "undermine the substratum of the final order" and run
counter to the decision of the House of Lords in Dinch v Dinch [1987] 2 FLR 162.
The original order should be varied only in circumstances where a new event "
invalidates the basis or fundamental assumption upon which the order was
made" (per Munby J in L v L [2008] FLR 26).
Consequently, while the jurisdiction to vary the undertakings does exist it would
rarely be exercised. McCombe LJ saw no basis upon which the court should
exercise its jurisdiction in the present case and invited further written
submissions from counsel as to "whether the realities dictate that the right
course is to dismiss the appeal".
Upon reading the judgments in draft, the parties agreed that the appeal should
be dismissed.
6. Ash v Ash
The court considered the standard of behaviour which would support an
allegation that a petitioner spouse should not reasonably be expected to live
with the other spouse.
Held: Tthe court will have regard to the particular petitioner and the particular
respondent in assessing what is reasonable.
Bagnall J said: In order, therefore, to answer the question whether the petitioner
can or cannot reasonably be expected to live with the respondent, in my
judgment I have to consider not only the behaviour the respondent has alleged
and established in evidence, but the character, personality, disposition and
behaviour of the petitioner. The general question may be expanded thus: can
this petitioner, with his or her character and personality, with his or her faults
and other attributes, good and bad, having regard to his or her behaviour during
the marriage, reasonably be expected to live with this respondent? It follows that
if a respondent is seeking to resist a petition on the first ground upon which Mr.
Ash relies, he must in his answer plead and his evidence establish the
characteristics, faults, attributes, personality and behaviour on the part of the

petitioner upon which he relies.

It seems to me that a violent petitioner can reasonably be expected to live with
a violent respondent. A petitioner who is addicted to drink can reasonably be
expected to live with a respondent who is similarly addicted . . and If each is
equally bad, at any rate in similar respects, each can reasonably be expected to
live with the other.
Statutes: Divorce Reform Act 1969 1(2)(b)
7. Thurlow v Thurlow
8. Carter-Fea v Carter-Fea

S1(2)(c): Desertion
1. Naylor v Naylor

S1(2)(d): 2 years separation

1. Mouncer v Mouncer
H and W slept in separate bedrooms but they still ate together and shared
cleaning duties. H stayed because of the children. Eventually left, petitioned 6
months later. Held: petition dismissed, had not been living apart until he left the
house
2. Hopes v Hopes
3. Naylor v Naylor (same case as above)
4. Santos v Santos
Living apart requires physical separation coupled with a mental element. 1 party
has to consider the marriage as no longer subsisting

S1(2)(e): 5 years separation

1. Santos v Santos (same case as above)

S5: Defence-Hardship Bar

1. Talbot v Talbot
2. Rukat v Rukat
3. Reiterbund v Reiterbund
4. Le Marchant v Le Marchant
H petitioned on the basis that the couple had lived apart for 5 years. W said that
she still loved him, marriage had not broken down irretrievably. Held: W's opinion
was irrelevant, 5 year separation in itself was proof of marriage breakdown
5. Banik v Banik
Hindu W, argued that divorce would make her an outcast in the community. Held:
hardship was not grave enough for the purposes of s.1(2)(e) so petition was
upheld
6. Lee v Lee

H and W separated, W lived in the matrimonial home. H paid the mortgage, then
filed for divorce. Proposed to sell the house and split the proceeds 50/50.
Seriously ill son, needed constant nursing, 50/50 would not be sufficient to buy a
suitable flat. Held: hardship provision used successfully, H was denied a divorce