The Right to Matrimonial Property after Dissolution of Marriage

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.

  

REFERENCES

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v  Bainham, A., & International Society on Family Law. (1999). The International survey of family law, 1997. The Hague: Martinus Nijhoff.

v  Blackstone-Ford, J., & Jupe, S. (2004). Ex-etiquette for parents: Good behavior after a divorce or separation. Chicago: Chicago Review Press.

v  Boele-Woelki, K., & International Conference Devoted to the Perspectives for the Unification and Harmonistaion of Family Law in Europe. (2003). Perspectives for the unification and harmonisation of family law in Europe. Antwerpen u.a.: Intersentia.

v  Collier, J. G. (2004). Conflict of laws. Cambridge: Cambridge University Press.

v  Eekelaar, J., Katz, S. N., & Maclean, M. (2000). Cross currents: Family law and policy in the United States and England. Oxford [u.a.: Oxford University Press.

v  Frenner, H. (2009). Peaceful separation/peaceful divorce.

v  Gilmore, S., & Glennon, L. (2014). Hayes and Williams' family law.

v  Glendon, M. A. (1989). The transformation of family law: State, law, and family in the United States and Western Europe. Chicago: University of Chicago Press.

v  Gould, J., & Martindale, D. (2007). Art and Science of Child Custody Evaluations. New York: Guilford Publications.

v  Great Britain. (2012). Matrimonial property, needs and agreements: A supplementary consultation paper. London: Stationery Office Ltd.

v  Kahn-Freund, O. (1953). Matrimonial property law in England. S.l: s.n..

v  Kanjama, C., & Juma, K. (2009). Family law digest: Matrimonial property. Nairobi: LawAfrica.

v  Kiralfy, A. K. R. (1972). Comparative Law of matrimonial property.

v  Levinger, G. (1979). Divorce and separation: Context, causes and consequences. New York: Basic Books.

v  Murphy, P. J. (2008). Divorce. Oxford: Heinemann Library.

v  Netto G., Pawson H. & Sharp C. (2009) Preventing Homelessness due to Domestic Violence: Providing a Safe Space or Closing the Door to New Possibilities? Social Policy and Administration

v  Oberlin, L. H. (2008). Surviving Separation and Divorce: Regaining Control, Building Strength and Conficence, Securing a Financial Future. Avon: Adams Media.

v  Peter Nicolas, The Lavender Letter: Applying the Law of Adultery to Same Sex Couples and Same Sex Couples, 63 Fla. L. Rev. 97 (2011).

v  Probert, R. (2011). Family law in England and Wales. Alphen an den Rijn: Kluwer Law International.

v  Richards, L., Letchford, S& Stratton, S. (2008) Policing Domestic Violence. Oxford. Blackstone‘s Practical Policing Oxford University Press

v  Sanders, P., & Myers, S. (1997). Divorce and separation. Brookfield, Conn: Copper Beech Books.

v  Stetson, D. M. (1982). A woman's issue: The politics of family law reform in England. Westport, Conn: Greenwood Press.

v  Stewart, J. (2011). Family law: Jurisdictional comparisons. London: Thomson Reuters.

v  Taft, R. S. (2013). Tax aspects of divorce and separation. S.l.: Law Journal Seminars Pr.

v  Todd, J. E., Jones, L. M., Great Britain., & Great Britain. (1972). Matrimonial property: A survey carried out on behalf of the Law Commission, among married couples and formerly married people in England and Wales, establishing the current pattern of ownership of matrimonial property and the opinions of those interviewed on some of the fundamental issues of matrimonial property. London: H.M.S.O.

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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