#17065 - Family Introduction - Family Law

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 proceedings are begun.

England and Wales- Sarah can issue as petitioner under (d) and (e), Wilhelm can issue as petitioner under (c)

Germany- Sarah can issue as petitioner under (b) and (c), Wilhelm can issue as petitioner under (b), (d), (e)

Able to dispute over jurisdiction if applicable

Act quickly before other party proceed proceedings in another jurisdiction

If started, instruct another solicitor in that jurisdiction

Choice of forum

1. Act quickly

2. Instruct a family lawyer in Germany to advise on

   1. Laws that a German court will apply

   2. Type/ quantum of financial orders

   3. Any material difference in law/ procedure/ enforcement

3. Compare position England and Wales v Germany and advise client about pros and cons

INTRODUCTION AND CHILDREN’S RIGHTS

• Parentage- Natural/ Legal

• Parenthood- Disputes of Maternity and Paternity

• Parental Responsibilities- Automatic/ Acquired

• Disputes of Children- custody/ visitation/ upbringing

• Child protection

• Adoption- Policy and changes

Who is a child?

• S1(1) FLRA 1969 Family Law Reform Act: 18 is the age of majority

Wide Discretion: designed as such as every family is unique to act sensitive tailor make what best is for the child

look at facts of case with specific reason by judge- heavily case base one issue may have different outcome

• Art 1 UN Convention on Rights of the Child 1989: every human being under 18, unless under applicable law majority is attained earlier

• (UK)Anyone under 18

Who is child of the family?

• Child of both spouses of civil partners

• Any other child treated by both these parties as child of the family- no need to be biologically related

• Legal term: can be biological child of any of the parent from current or previous relationship

Changing Nature of the Parent – Child Relationship:

• Traditionally, father had almost absolute rights over legitimate children at common law

• Until they reach 21: Thomaset v Thomaset

• Father had right to legal custody

• Traditionally, property of one parent, then same level modernisation, have own identity and rights rather than an extension of parents

• Direct property and physical procession of Father- right to remove from mother

• Equity intervened and was much more flexible in dealing with issues

• Could provide a variety of remedies

• Equity could deprive father of his common law rights if contrary to child’s interest

• Equity not apply in every case, no right of mother’s interest

• Father had no common law rights over illegitimate children

• Mother’s position is strong – but other stigmas

• However, gradually mother’s position began to strengthen

Talfourd’s Act 1839: empower Court of Chancery to give mother custody until 17 and access until majority – but not if guilty of adultery

• Illegitimate children: Father no right- Mother absolute right, but suffer from autism and social stigma

• From 19^th century, Mother’s right But carries element of morality

• Custody of Infants Act 1873: empower courts to give mother custody until 16 – but not if guilty of adultery (Moral element)

• Guardianship of Infants Act 1886: extend mother’s custody till 21 and take away father’s power to appoint testamentary sole guardians (Men can always defeat mother’s right to custody upon men’s death by appointing another sole member)

• Guardianship of Infants Act 1925: in any court proceedings, neither parent has a superior claim (Equal footing- in best interest of child, both in position of parity)

• Guardianship Act 1973: each parent of legitimate child have equal and separately exercisable rights

Recognition of the Child’s Position:

• Early legislation was more concerned about parents’ rights towards...