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Summarised family law lpc notes
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Summarised family law lpc notes
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Under S3(1) Matrimonial Causes Act (MCA) 1973 “(1) No petition for divorce shall be presented tothe court before the expiration of the period of one year from the date of the marriage.” Maurice
and Arabella have been married since 2013 so they have satisfied this one year bar to bring the
divorce petition to court.
Under S(1) MCA 1973 “… a petition for divorce may be presented to the court by either party to a
marriage on the ground that the marriage has broken down irretrievably.” It is clear that Maurice
and Arabella’s marriage and relationship have broken down irretrievably as they have been living
apart frequently because of their careers, things had changed between them since the incident of
domestic violence towards Arabella, Arabella made it clear to Maurice that she does not want to live
in the countryside and they acknowledged relations deteriorated further since Maurice found those
photographs thus best to part ways.
Divorce is usually undefended and as per Maurice’s statement he has agreed to a divorce so this is as
per advise a solicitor would usually give as more likely to succeed if undefended (authority in Owens
V Owens 2018).
Under s1(2) MCA 1973, the court will only hold a marriage has broken down irretrievably if the
petitioner satisfies the court that one or more of the 5 facts in this section applies being adultery,
behaviour, desertion, 2 years separation & consent and 5 years separation. 1 of these must be
proven but the actual fact doesn’t have to be the cause of the breakdown.
As per the divorce petition, the fact being relied upon is behaviour (fact B). Although there was
evidence of Arabella kissing another man, this will not constitute adultery as no evidence or
confession of voluntary penetrative sexual intercourse taking place between Arabella and this other
man (s1(2)(a) MCA 1973).
Under s(1)(2)(b) MCA 1973, the respondent must have behaved in such a way that the petitioner
cannot reasonably be expected to live with the respondent. So this fact is fault based, an objective
test with subjective elements. The behaviour does not need to be grave nor weighty nor
unreasonable merely that the expectation of continuing life and continue living together should be
unreasonable.
It is clear from Maurice’s statement and the divorce petition that this fact can be relied upon as the
Maurice did throw the tractor tyre perhaps not with the intent of hurting Arabella but knowing there
is a risk of harm. The tyre did hit her causing substantial bruising and dizziness which lead to
obtaining non-molestation order against Maurice. Maurice and Arabella were frequently living apart
due to their jobs and it appears Maurice did not make much of an effort to maintain the relationship
with Arabella. They want to live in different areas and want different things , they have grown apart
it seems.
After the domestic violence incident which seems to be the last incident of behaviour as per
Maurice’s statement in the timeline, Arabella used to stay at the farm twice a month (every other
weekend) and Maurice went to Amsterdam 3-4 times a year so a more than 6 months cohabitation
period after the last incident of behaviour could be argued here which the court may not disregard
(would if 6 months & under) and behaviour may be continuing (resets 6 month period).
Best not to name the co-respondent as this will make them a party (FPR 7.10(2)), as per good
practice under Law society protocol and it is not a legal requirement to name them, usually comes
into play if the applicant believes the respondent is likely to object/defend the divorce.
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