The
Right to Matrimonial Property after Dissolution of Marriage
Introduction
Marriage
was defined in Hyde v Hyde[1] as the ‘voluntary union of one man and one
woman to the exclusion of all others.’ This research paper intends to analyse
Fanny’s position and advise her accordingly, regarding her rights over the matrimonial
house. In doing so, I will first examine if the marriage was rightfully
dissolved and the ramifications of this; Entitlements to property after
dissolution, and finally the approach that courts ought to employ in matters
relating to children. Above all, I will explore the various remedies that Fanny
can access with respect to getting her husband out of the house and any
benefits or compensation which accrues to her. The essay will be wrapped up
with a conclusion which will encapsulate an elaborate advice to Fanny.
Adultery
The
classical approach has been that adultery; if proven by the petitioner out
rightly constitutes a ground for divorce. However, in this case, there is a
twist of events because Bernard is dating another man, Frank. It would not be
prudent for Fanny to proceed to court on this claim. This view has been
strongly supported by recent jurisprudence across the world.[2] The reason for this is that ideally, Adultery
is defined as an act of sexual relationship between a man and a woman and that
is the legal position.[3] In
fact a person within a gay family set up cannot successfully rely on adultery
if his partner cheats on him with another man. Therefore it is equally unlikely
for a lady in a normal relationship to succeed in this claim.
Dissolution
of Marriage
For
a person to bring forth a successful petition for divorce in court, they must
have suffered exceptional hardship. In light of this, there are a number of
grounds which have been enlisted to suffice a pronouncement of divorce upon
parties to a marriage.
In
the current dispute between Bernard and Fanny, unreasonable behavior, as
explained above, is the most plausible ground for Fanny to seek divorce because
indeed, it was unforeseeable that Bernard would cheat on her with another man.
Adultery is also another ground but this should be approached cautiously.
However, the biggest impediment to the petition under the premise of adultery
is the concept of condonation. Condonation is the forgiveness of a marital
offence and reconciliation between the two parties who have full knowledge of
the circumstances. Fanny had already admitted that she had withstood all other
adulterous acts of her husband, meaning that she had been forgiving him over
and over again. In the case of Cramp v
Cramp,[4]
it was held that, a husband who has sex with his wife with full knowledge
of her adulterous endeavors must be conclusively presumed to have condoned the
offence.
Domestic
violence
There
has been a significant transformation in the domestic violence regime in the UK
especially with respect to violence that occurs in marital relationships. The
shift has always been towards further protection and securing of the rights of
vulnerable parties within a marriage set up. The Family Law Act 1996 is however
the statute in force and it has substantive provisions on domestic violence
which are applicable to persons within an existing marriage and also to those
who have just ended the relationship. Part IV of the Act sets out a range of
remedies available for a non-owning spouse or civil partner. It also goes ahead
to regulate the occupation of the home if one partner has been persistently
abusing the other. The Civil Partnership Act 2004 made an amendment to part IV
of the Family Law Act 1996 such that its scope was expanded to cover also civil
partners in the same way that it protects married couples.
But
since Fanny has just been granted a divorce by the court, the most appropriate statute
to invoke as relates to domestic violence during subsequent appearance in court
is the Protection and Harassment Act 1997 which caters for domestic violence
cases which happen after separation. If the application is deemed appropriate,
then Fanny might be given ouster orders, to force Bernard out of the house for
the peace of Everett and Fanny to prevail. The applicant may also use the
Housing Act 1996 which offers supported housing for victims of domestic
violence. Also, the Homelessness Act is mandated to prevent homelessness with
respect to victims of domestic violence by offering the Supporting People Housing program.[5]
There
are other initiatives that Fanny could explore in order to dispense the threat
of living with a violent and irresponsible husband. To start with, Fanny has
the option of applying for a non-molestation order. Fanny satisfies all the
requirements set out in section 62(3) of the Family Protection Act 1996. The
good thing with this order is that application for it can either take the form
of a notice or it could also be ex parte.
Before it is granted, the court will consider all the circumstances surrounding
the application in which case the nature of the molestation and the extent to
which the victims have been affected must be proved. If this order is granted
by the court, then Fanny will be entitled to call the police any time if
Bernard breaches it and they can easily arrest him.[6]
Another
option available for Fanny is to press criminal charges against Bernard for the
offences of battery and assault contrary to section 39 of the Criminal Justice
Act 1988 or assault occasioning bodily harm as provided for in the Offences
against Persons Act 1861. The remedial effects of this channel may result in
Bernard being incarcerated for a while and in that case, the remaining family
will be relatively secure.[7]
The
Ancillary Relief
The
concept of Ancillary relief has it that courts have to determine the financial
consequences of a divorce or dissolution of a marriage. The case of White v White[8]
set out the yardstick which must be employed by courts. It insisted on equality
as the primary factor to be considered by judges before issuing this
discretionary award. The statutory provisions are quite elaborate in providing
for the factors that should influence the court. For instance, section 25 of
the Matrimonial Causes Act indicates that the court must consider the
following:
(a)
The
income and property and earning capacity of both parties and if there are any
reasonable steps that either party can do to enhance their earnings.
(b)
The
financial needs or obligations which both parties have or may foreseeably have
in future
(c)
The
standard of living which the parties enjoyed before the marriage broke down
(d)
Age
of each party to the marriage
(e)
Any
disability that either of the parties suffers
(f)
The
likely future commitments of either party towards caring for the family
(g)
Conduct
of both parties during and after dissolution of the marriage. If any party
acted inequitably, this influences the court’s decision
Since
Fanny does not have any income and it is anticipated, from the facts of the
case that she is the one who is going to take the obligation of raising Everett;
plus The fact that Bernard’s conduct has been wanting the court can be inclined
to grant an enhanced remedy to Fanny.[9]
On
top of the above considerations, the court also has to factor in the plight of
the child. While deliberating on the order, it will be influenced by the
financial needs of the child, the income of the child, if any and the manner in
which he was being educated. Fanny stands a good chance of getting an enhanced
ancillary relief because Everring is only 8 years old and she still has a long
way to go in her education. She does not have any income and it is likely that
Fanny is the one who will raise her even though she does not have an income. In
that case the court is likely to award her more relief. In the case of Radmacher v Granatino,[10] the
court noted that the first task of the court in such proceedings after divorce
is first to secure shelter for the child and his carer. Before a permanent
residence is found, the court must devise a way of how the child will survive
and in that case the parent with an income will be the one to bear the weight
of the estimated costs. From this step, the courts then consider other needs
such as education, travel expenses and general upkeep as was noted in the case
of Re
P (Child: Financial Provision)[11]
Ownership
of the House
The
landmark decision that transformed the approach of courts when it becomes to
division of matrimonial property was the case of White v White.[12]
In this case, the couple had lived together for 34 years and they had been
working together in the farms for all those year. However, upon divorce the
court of first instance awarded the wife £800,000 given that the whole property
was worth £4.6 million. After appealing, the Court of Appeal enhanced the award
to £1.5 million; an amount which was affirmed by the House of Lords.
The
first hurdle that has to be jumped by Fanny if she wants to get closer to
acquiring ownership of the house is to prove that the house is matrimonial
property because otherwise, the courts may not interfere with property under
sole ownership. The courts cannot assume the role of the Land Registrar. This
was the position in S v S.[13]
From
this step, it follows that the three stages elucidated in Millerv Miller and McFarlene
v McFarlene[14]
will be followed so as to adequately cater for an applicant of such a relief.
The first thing that the court must look at is to ensure that the needs of the
applicant are sufficiently met. If the needs are met and there still are
resources from the estate, the court should endeavor to compensate the
applicant for the input they have made towards the growth of the estate. The
final thing that the court might do if there is still part of the estate left
is share the estate in a proportional manner which is also meant to be
equitable and favorable to the members of the dispute; especially, the
applicants.
It
must be acknowledged that Fanny has absolutely no income and that she has even
gone a step further to apply for state benefits. Ideally, from the recent
jurisprudence, the courts are reluctant to pass over an individual’s
responsibility to the state. This was noted in Delaney v Delaney.[15]
Therefore, Bernard’s obligations cannot be easily delegated to the state
that easily. But a precaution to this is that courts are also reluctant to put
a person in a position whereby they would be better of not working; as was
explained in the case of Furniss v
Furniss.[16]
But
in the interim, it would be prudent for Fanny to apply for an occupational
order. This relief goes hand in hand with a non-molestation order and it
regulates the people who can live within the family home. In addition to this,
it can bar the violent member of the family from accessing that home.[17]
Breach of this order also warrants arrest of the offender by the police if the
incident is promptly reported.
Orders
available for the court to make regarding the welfare of Fanny
The
court has a great discretion when giving directions regarding financial
provisions. To start with, since the couple has just divorced, the court can
make a periodical order, for Fanny to get Periodical payments form her husband because
she does not have any income. What is unclear however, from these facts is
whether Bernard had a permanent job because this would greatly determine the
quantum of payments.[18]
Also,
since Fanny may not be interested in interacting with Bernard any longer.
Therefore, her most appropriate recourse will be to apply for a lump sum order
which will entitle her to equal division of the matrimonial property with
Bernard. If Bernard insists on living in the matrimonial home, then this will
entitle Fanny to a larger amount of this lump sum.[19]
Finally,
the court has the discretion to issue a pensions order which will divide the
pensions of the husband while factoring in the years one partner has spent in
forbearance of her career and chance to work.[20]
Legal
Protection of Children
Following
the overriding provision in the United Nations Convention on Rights of a Child
(UNCRC), the primary interest of any state should be to protect the best
interests of the child in all circumstances. In the UK, there are several legal
instruments aimed at safeguarding the plight of the child. Part 1 of the
Children’s Act 1989 contains a no order principle which provides that the court
should not issue any order if it is not convinced that the result of it would
be in the best interest of the child. Considering the case at hand the court is
required to conduct a welfare checklist which puts into consideration the age
and sex of the child, interests and wishes of the child, level of education and
the harm they are likely to suffer.[21]
It
is for this reason that the court might make a child maintenance order pursuant
to Section 8 of the Children’s Act. Such orders include residence orders,
contact orders and specific issue orders. The court must also be concerned with
the survival of the child, and thus it may make maintenance orders upon
considering the factors listed above regarding the conditions of the child and
the mother. Therefore it is squarely within the behest of the court to make
orders about where the child is to live so long as the order in the best
interest of the child.
Conclusion
In
a nutshell, this paper has demonstrated that there are numerous approaches and
avenues that can be employed by Fanny in order for her to get a satisfactory
remedy. Even if she fails to succeed in having the house transferred to her
sole name, she can still obtain an ouster order against Bernard so as to
protect her daughter from this predicament. If all these fail, she is still
eligible for state protection under the Housing Protection Act.
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[1][1858]
LR 130
[2] Peter
Nicolas, The Lavender Letter: Applying
the Law of Adultery to Same Sex Couples and Same Sex Couples, 63 Fla. L.
Rev. 97 (2011).
[3] The
Matrimonial Causes Act 1973, Section 3.
[4] (1920)
AELR p.120
[5] Gould,
J., & Martindale, D. (2007). Art and Science of Child Custody Evaluations
[6] Richards,
L., Letchford, S & Stratton, S. (2008) Policing
Domestic Violence.
[7] Blackstone-Ford,
J., & Jupe, S. (2004). Ex-etiquette
for parents: Good behavior after a divorce or separation
[8] [2000]
UKHL 54, [2001] 1 AC 596.
[9] Murphy,
P. J. (2008). Divorce. Oxford
[10] [2008]
EWCA Civ 649, [2009] 2 FLR 1181
[11] [2003]
EWCA Civ 837, [2003] 2 FLR 865
[12] [2000]
UKHL 54, [2001] 1 AC 596.
[13] [2006]
EWHC 2793 (Fam)
[14] [2006]
UKHL 24, [2006] 2 AC 618. The two cases were enjoined together before the House
of Lords, thus the same citation.
[15] [1990]
2 FLR 457
[16] (1982)
3 FLR 46.
[17] http://www.womensaid.org.uk/domestic-violence-survivor
handbook.asp?section=000100010008000100330002
[18] Great
Britain. (2012). Matrimonial property,
needs and agreements: A supplementary consultation paper.
[19] Murphy,
P. J. (2008). Divorce
[20] Stetson,
D. M. (1982). A woman's issue: The politics of family law reform in England.
[21] Gould,
J., & Martindale, D. (2007). Art and
Science of Child Custody Evaluations
