LEVEL 6 - UNIT 7 FAMILY LAW SUGGESTED ANSWERS JANUARY 2016

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 7 FAMILY LAW SUGGESTED ANSWERS JANUARY 2016 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2016 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. Question 1 SECTION A The meaning of parentage has undergone significant changes over recent years, and particularly since the introduction of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) on 6 April The Act has widened the scope of who can be a parent, and it can include people with no biological link to the child. The Act has taken the definition of parent into the 21 st century, and has allowed assisted reproduction to be extended to gay couples. Assisted reproduction encompasses artificial insemination of a woman with a husband/partner's sperm or with donor sperm, and also donor egg or donor embryo insemination. Surrogacy is also covered by the legislation, a method of assisted reproduction which involves a woman carrying and giving birth to a child for the benefit of another person (referred to as the commissioning parents). The Act moves away from the traditional mother and father approach to parentage, specifically providing for a mother and other parent. So, the definition of the parent who is not the mother has changed to reflect changes in relationships, and to allow for homosexual parenting, and parenting by those with no biological link. However, a key definition within the Act is that of mother within S.33, which remains unchanged the woman who...has carried a child as a result of the placing in her of an embryo or of sperm and eggs. What is interesting, and reflects changes in society is this notion of other parent, which is referred to throughout the Act, and is relatively complex, depending on the type of relationship. Page 1 of 16

2 For married couples, the husband is deemed to be the other parent irrespective of whether or not his sperm has been used, as long as he has consented pursuant to S.35, if another man's sperm has been used. Furthermore, pursuant to S.38, there is a continued presumption of legitimacy for married parents. There are provisions for other fathers under S.36, which allow a man to be the father of the child if certain conditions are met, even though their sperm is not used to fertilise the egg. This covers the situation where no-one else is treated as the other parent of the child. The conditions are that the impregnation/insemination must take place at a licensed centre, and the agreed fatherhood provisions under S.37 are met, which involve continuing consent at the time of impregnation and no withdrawal of the consent at any stage. Unfortunately, the Act does not specify whether it needs to be written or verbal consent. S.41 covers sperm donors. There is still concern in this area following the case of Re M (Sperm Donor: Father) (2003). The provision states that a person cannot be called the father of the child where he donates sperm or treatment services or non-medical fertility services. However, the aforementioned case stated that the person could be treated as the father where the procedure was not undertaken in the prescribed manner and not at a licensed centre. The case illustrates that, irrespective of this Act, caution must be exercised when donating in a more informal manner. Furthermore, S.47 covers egg donation and states that a woman who donates the egg will not be the other parent simply by virtue of donating, unless of course she wishes to be the other parent and satisfies the other parent conditions. The major change resulting from this legislation relates to female same sex couples. Under S.42 and S.43 it is now possible for the female partner of the mother to be the other parent, thus demonstrating the impact of the Act is far reaching and is recognising same sex parenting. If the female is the civil partner of the mother at the time of the impregnation/insemination, then the female partner will be the other parent and the child will be legitimate, provided the female partner has consented (in the same way as the married couple previously mentioned). If the female partner and the mother are not civil partners, but are living as cohabitees, the female partner can still be the other parent provided no-one else is being treated as such and the parties comply with the female parenthood conditions under S.44, which are similar to those within S.37 for other fathers, namely consent at the time of impregnation, continuing consent, and no withdrawal of that consent at any point. Regarding surrogacy the Act has made an impact, but it has limited scope. The surrogate mother still meets the definition of mother under S.33 until such time as the child is formally adopted. However, the commissioning parents can be spouses, civil partners, or living as partners in an enduring family relationship (same sex or opposite), thus extending the scope of commissioning parents to reflect changes in adult relationships in the 21st century. The commissioning parents can apply for a parental order under S.54 in relation to the child. However, such an order is only effective if the commissioning parents have the baby living with them and the mother agrees. There is still the risk at birth that the surrogate will not give the baby to the commissioning parents and even this Act has been unable to change that. Furthermore, any attempts to apply to the court for intervention have been met with disappointment because the courts are reluctant to intervene once the child has bonded with the natural (surrogate) mother. Page 2 of 16

3 To conclude, it is clear that the 2008 Act demonstrates how domestic law has adapted to fit changes to the types of adult relationships in the 21 st century. We have moved away from the traditional notion of who is a parent, so as to become more inclusive. The introduction of the other parent as opposed to limiting to father has catered for homosexual parenting and parenting for those who are not the natural parents of the child. The Act also extends provisions relating to assisted reproduction, including surrogacy, to ensure that gay and straight people can use such methods. However, the definition of a mother remains unchanged, as does the provision that a child can only have two parents. Question 2 The courts have actively encouraged the concept and philosophy that is important that a child has contact with both parents. Contact is the right of the child not the parent. Following the introduction of the Children and Families Act 2014 (CAFA 2014), the courts have removed residence and contact orders, and now consider a child arrangements order. The sole order regulates arrangements relating to with whom a child is to live, spend time, or otherwise have contact. The latter, can cover a variety of arrangements. It can be direct contact which involves personal visits, or it can take an indirect form, such as letters, telephone calls or s. It could also be supervised, usually by a third party, at, for example, a specialised external centre. Alternatively, the arrangements could just be for reasonable contact. In considering whether or not to make a child arrangements order, it is primarily governed by the three general principles within S.1Children Act 1989 (CA 1989):- Paramouncy Principle - the child's welfare is the court's paramount consideration Non Intervention Principle - the court should not make an order unless it would be better for the child than making no order at all No Delay principle - any delay in dealing with matter is likely to prejudice the child's welfare. Additionally, the court are required to consider the factors listed within the welfare checklist within S.1(3) CA 1989, which includes the wishes and feelings of the child (if of sufficient age and understanding), the physical, educational and emotional needs of the child, the capability of the parents, the need to maintain the status quo, and the risk of any harm. The question of whether or not a contact order should be made where there is a history of domestic violence has been the subject of much conflicting case law. The above-mentioned principles and factors still have to be taken into consideration, but the courts must act with caution. The point is that just because there has been a history of domestic violence, it does not equate to no contact There has been some discussion that only indirect contact is appropriate where there is a history of domestic violence, as was stated in Re H (Contact: Domestic Violence) (1998). However, in Re S (Violent Parent: Indirect Contact) (2000), the judge clearly stated that direct contact would only ever be possible if at all, when the child's fear of her violent father had diminished, thus not ruling out direct contact completely. Page 3 of 16

4 The court have gone further, and in some cases, have ordered that no contact take place where it is clear that there is a history of domestic violence and the child is distressed even by the indirect contact. In the case of Re C (Contact: No Order for Contact) (2000), the child had destroyed letters and cards sent to him by his father, and had become extremely distressed by the fact that the correspondence made reference to him meeting his father in the future. The Court of Appeal heard appeals from four fathers together against the refusal of contact in 2000 Re L (Contact: Domestic Violence), Re V (Contact: Domestic Violence), Re M(Contact: Domestic Violence), Re H (Contact: Domestic Violence). All four appeals were dismissed, but it was the Court of Appeal's decision to set out the approach to be taken when the court is deciding a contact application where allegations of domestic violence have been raised. The guidelines:- Any allegations of domestic violence had to be determined by the court and found proved or not proved (a finding of fact hearing) initially. If violence is proved, and where the fears of the resident parent are justified, the court then has to consider: the conduct of the parties to each other, the conduct of the parties towards the children, the effect of the violence on the children, the effect of the violence on the resident parent, and the motivation of the party seeking contact. The court should assess the seriousness of the violence, the risks and impact on the children, and weigh those against the advantages to the child of maintaining contact. If the violence is serious, the violent parent should illustrate an acceptance of the seriousness of his behaviour and show a genuine effort and desire to change. The court should ensure, as far as possible, that any risk of harm to the child was minimised and that the safety of the residential parent is secure before, during and after any contact. Even if violence is proved it should not automatically prevent contact, but the court should use discretion in exercising and applying the welfare principle and the welfare checklist. The approach above-mentioned was followed in the case of Re G (Domestic Violence: Direct Contact) (2000), where the court ended the direct contact between the child and her father because of the history of serious violence and the effect on the child. The court, did, however, allow indirect contact at Christmas and on birthdays. Further, in the case of Re W (Direct Contact) (2012), the judge had ordered indirect contact even though there was some doubts about whether the mother s allegations of violence were true. The Court of Appeal allowed the father s appeal and stressed that is was almost always in the child s best interests to have contact with the non-resident parent unless there were cogent reasons for that not to happen. It would appear that the court's are reluctant to stop all contact, even where there has been serious domestic violence, with a leaning towards indirect contact. However, it will sometimes be appropriate for contact to be ended, as in the recent case of AB v BB and Others (2013), due to the parent s violence, numerous previous convictions and the level of seriousness of those convictions. The judge stated ending contract is a draconian order that the court should be slow to make unless the children s welfare demands it. Thus, on application of the welfare principle and checklist, and the guidelines in the joint appeals, it is clear that if the child is distressed by even indirect contact, the court would make no order for contact at all. Clearly this approach to cases involving domestic violence does adhere to the Government's view that contact should take place with both parents where it is safe and in the child's best interests. Page 4 of 16

5 Question 3(a) This question relates to ancillary relief on divorce or dissolution and the provision of compensation. In the joint appeals of Miller v Miller and McFarlane v McFarlane (2006) the House of Lords stated the overriding objective of the courts in ancillary relief cases is to produce a fair outcome by reference to specific guidelines, one of which is expressed as compensation. If there is a significant economic disparity between the parties as a result of the way in which they conducted their marriage for example if one party worked while the other looked after the family thus allowing the other party to become a high income earner at their own expense, then there should be compensation built into the financial settlement. In the case of P v P (2006) the wife was a 47 year old director of a recruitment agency with an income of 15,000 to 20,000 per annum. Her husband was an investment banker earning approximately 400,000 per annum. After they had twins, she gave up her career to support her husband's career and be the homemaker and the main carer for the children. In this case the Judge made reference to compensation not being part of the S.25 MCA 1973 statutory factors, but that it is a consideration of the court, and a recognition through an award that she had contributed to her husband's success by giving up her career, but different elements of her claim should not be treated like heads of damages. In the later case of CR v CR (2008), the Judge found that if a wife who gives up only ordinary career prospects is adequately compensated by an equal division of assets. In this case the Judge held that the wife should be compensated because the husband was a very high income earner and this was as a result of the wife giving up her career, and looking after the family when her husband was away on business. She was due compensation for the loss of this income stream that she substantially contributed to creating. It was not a separate head of claim, but simply factored in through a generous interpretation of the wife's needs. The concept of compensation was brought together in the case of VB v JP (2008). In this case the wife had given up work to have children. Later, when she wanted to restart her career the husband resisted as they did not need the money. The judgement contained important provisions relating to the concept of compensation in ancillary relief cases: Compensation is a consideration when the assets are divided at the end of the marriage. It is part of the overall assessment of fairness, not a head of claim in its own right. The partnership ends with the marriage, and the wife has no right to continuing economic parity unless considerations of needs and compensation require it. Where there are sufficient assets to achieve a clean break, it is likely that a wife who gives up ordinary career prospects will be adequately compensated by an equal division of assets If a wife is entitled to compensation by way of ongoing periodical payments, this is best dealt with by a generous assessment of her needs. Compensation is a live issue. What is apparent is that giving up an ordinary job is not likely to give rise to the compensation aspect of ancillary relief, and the courts are looking more to compensate for loss of career. Furthermore, although Page 5 of 16

6 compensation is not a separate head of claim, it is certainly a factor to be considered by the court as illustrated by the case law. Question 3(b) A foreign decree of nullity, divorce or judicial separation will be recognised as valid by the English courts if it meets the requirements of S.46(1) Family Law Act 1986 (FLA 1986). The requirements are threefold:- The decree must have been obtained by means of proceedings. This, in essence, requires some paperwork and the involvement of some state body. The decree must be effective/enforceable under the law of the country where it was originally obtained. Either party to the marriage must have been habitually residence in that country, or domiciled there, or have been one of it's nationals at the time the decree was granted. Only if all three requirements are satisfied do the English courts recognise foreign decrees. The problem arises with those countries which allow the annulment or dissolution with no actual formality or paperwork. They are obtained by means other than proceedings. In an attempt to deal with such cases, S.46(2) FLA 1986 provides for an alternative set of requirements, but which are more onerous because English law prefers to see marriages ended formally. In such cases both parties must be domiciled in that country, or one party must be domiciled there and the other in another country which would also recognise the validity of the decree. Furthermore, neither party must have been habitually resident in the United Kingdom throughout the year preceding the decree. It is important to note that even if the requirements of S.46(1) or S.46(2) are satisfied, under S.51 FLA 1986, the English courts can still refuse to recognise a foreign decree of nullity, divorce or judicial separation in the following circumstances:- The foreign decree is irreconcilable with a previous judicial decision made or recognised by a UK court. The foreign decree was made at a time when there was no valid marriage under UK law. Where the foreign decree was obtained by means of proceedings, the respondent had not been given proper notice or a reasonable opportunity to take part in the proceedings. Where the foreign decree was obtained otherwise than by means of proceedings, there is no official document certifying the decree as effective in the country. Recognition of the foreign decree would be manifestly contrary to public policy. Thus, it appears there is statutory provision to allow the courts to recognise such decrees, but with a suitable level of discretion being exercised. Question 4(a) Cohabitation refers to two persons (same or opposite sex) who are not married or within a civil partnership living together as if they were. Many cohabitants feel they are common law spouses, but the term has no legal meaning. Page 6 of 16

7 A cohabitation contract is a contract that regulates the relationship of cohabitants. It could deal with: (1) ownership of property including personal property, (2) payment of bills, ownership of bank accounts, (3) surnames and maintenance of children, (4) division of household chores. Traditionally such contracts were void on the grounds of public policy because they undermined the status of marriage. However, with the rise in cohabitation it would appear that contracts between cohabitants which regulate their financial and property matters during or after termination of cohabitation would be upheld provided there was an intention to create legal relations and no undue influence. However, this must be clearly distinguished from contracts for cohabitation which require parties to cohabit and in a defined way, which are still void on the grounds of public policy. The distinction in the two types of cohabitation contract was highlighted in the case of Sutton v Mishcon de Reya and Another (2004).This involved a negligence claim against a firm of solicitors who had drafted a cohabitation contract for a gay couple. The contract provided for the claimant to live with the other man in a master and servant relationship, the claimant being the master. Furthermore, the servant was to transfer all of his personal wealth to the claimant as part of the contract. The servant subsequently changed his mind, and the settlement that was then negotiated was less favourable to the claimant (who had been advised by the solicitors). The claimant sued the solicitors alleging that they had negligently drafted the cohabitation contract. The court held that the contract was in fact a contract for cohabitation as drafted and was therefore void on the grounds of public policy. The Law Commission published a report Cohabitation: The Financial Consequences of Relationship Breakdown in July 2007 with recommendations to reform rights for cohabiting couples who separate. It suggested to be eligible couples should either have a child together or have cohabited for a minimum period of between two and five years. It also suggested taking into account factors such as the financial needs and obligations of the parties, their financial resources, their conduct and the welfare of any minor child (similar factors to S.25 Matrimonial Causes Act 1973). Another attempt at reform was the introduction of The Cohabitation Bill, in December This Bill provided a framework of rights and responsibilities for cohabitants to provide basic protection on the breakdown of their relationship. The protections were based on points raised within the Law Commission Report. However, the Bill also contains an opt out scheme where the parties have obtained independent legal advice. The Bill was subject to much debate and amendment before the general election in There has been no further developments and there is ongoing pressure for reform. It also demonstrates that we are behind Scottish law, who introduced financial remedies for cohabiting couples on the breakdown of their relationship in In the Scottish Appeal case of Gow v Grant (2012), Baroness Hale stated that there was a need for similar remedies in England and Wales because it was more practical and fair. Question 4(b) When modern divorce law was introduced in 1971 it was feared that the provision allowing divorce without consent after five years separation (S.1(2)(e) Matrimonial Causes Act 1973 (MCA 1973) would be a Casanova's Charter permitting unscrupulous husbands to divorce innocent and abandoned wives. As Page 7 of 16

8 a result, the legislation incorporated some measure of protection for spouses divorced against their will. The provisions of S.5 MCA 1973 were introduced. Such provisions equally apply on dissolution of a civil partnership if pursued on the basis of 5 years living apart. S.5 MCA 1973 and S.47 Civil Partnership Act 2004 (CPA 2004) provide a defence to divorce/dissolution. It basically allows the Respondent to a petition based on five years' living apart to object to the granting of the final decree absolute on the basis of grave financial or other hardship and that it would therefore be wrong, in all the circumstances, to dissolve the marriage/civil partnership. Thus, there are two limbs to be successful on this application. Quite often the Respondent may succeed on the first limb but not on the second. The courts are reluctant to stop a divorce from proceeding after five years living apart. Financial hardship cases are most likely in relation to loss of pension rights, which a spouse or civil partner would otherwise have acquired. Such an application would be discouraged if your client already had substantial assets in his/her own right, because by definition, they are not in financial hardship. These applications were more so prior to the courts actually being permitted to make pension sharing and pension attachment orders. They were often used by solicitors representing the Petitioner as a bargaining tool against Respondents and to push them into making adequate provision or compensation for loss of the pension right, otherwise they would be prevented from being divorced. This is not really applicable anymore because the pension asset is dealt with as part of the financial settlement and the court has power to make orders in that regard. The pension asset has now been incorporated into the S.25 MCA 1973 statutory factors and therefore is considered in any event. The defence is probably more applicable in terms of those categories of case where the Respondent is pleading other hardship. This reference is to social or religious ostracism, and therefore has particular relevance to divorce. This has been alleged in several cases, for example Banik -v- Banik (1973. Both parties were Hindu. The wife said that a divorce would make her a social outcast and deny her spiritual benefits. The defence failed because the wife could not physically substantiate that. Similar cases have also failed. This demonstrates the court's reluctance to see social ostracism as other hardship. It would appear that if they cannot see it, they do not accept it. Aside from establishing the hardship, the Respondent also has to establish that it would be wrong in all the circumstances to dissolve the marriage/civil partnership. This is a balancing act the empty shell of a marriage as against alleged hardship. The courts have stated quite firmly in the case of Brickell -v- Brickell (1974) where a wife establishes grave financial hardship, the defence will fail because the wife contributed to the marital breakdown by her conduct. Thus, even if the Respondent can establish one form of hardship, there is no saying that it will prevent the divorce as can be seen in this case. Page 8 of 16

9 SECTION B Question 1(a) Matthew has the protection of the Family Law Act 1996 (FLA 1996) by virtue of being an associated person, pursuant to S.62(2) FLA He is associated by virtue of being a cohabitee/former cohabitee. This protection allows him access to certain orders. Matthew could seek an occupation order in relation to the privately rented property, which regulates occupation of the family home. Matthew also satisfies the requirements that they have actually lived at the rented property together as their family home. Matthew s application would be made under S.33(1) FLA 1996 as a person who is entitled to occupy the home by virtue of being joint tenant of the family home. Under S.33(3) FLA 1996 Matthew would be asking the court to allow him to remain in the privately rented property and occupy it, and for an order that Paul leaves the property. The court will first look at the balance of harm test under S.33(7) FLA 1996 as stated in Chalmers v Johns (1999). If the applicant is likely to suffer significant harm if the order is not made, then the court must make the occupation order unless the Respondent will suffer greater harm if the order is made. Primarily assessing where the greater harm lies. Significant is not defined in FLA 1996, but for an adult it means ill treatment or impairment of health. If the test reveals that the greater harm would be caused by not making the order, then the court must make an occupation order. Application of the test is demonstrated in B v B (Occupation Order) (1999). In this case, Matthew and Paul are both adults, there is no violence, and each want to remain in the privately rented accommodation, and it would appear difficult to assess where the greater harm would lie in terms of making/not making the order. If that is the case, and the balance of harm test is not satisfied, then the court will look at the factors within S.33(6) FLA 1996 in deciding whether to exercise discretion to make an order in favour of Matthew. The factors to be considered are as follows:- The housing needs of the parties. Both Matthew and Paul require a home, but Paul already has an alternative property to move into (the purchased property in his sole name) whereas Matthew does not. The financial resources of the parties. Paul earns substantially more than Matthew and is easily able to pay the mortgage on, and live in, the purchased property. Matthew is not able to afford to pay the mortgage and the expenses on the purchased property. If Matthew remained a tenant of the existing property, alone, he would be entitled to housing allowance for assistance with the rent. The likely effect of either making an order or refusing the order on the health, safety and well being of the parties. If an order is not made and Matthew has to move out, he will have to seek alternative rented accommodation with limited means, which will probably mean applying to a Local Authority and going on a waiting list. However, Paul could easily afford to move out, into the other property which he insists is his, and pay the mortgage and expenses without any financial effect. The conduct of the parties. It does not appear that either Paul or Matthew have conducted themselves in an inappropriate manner, other than Paul Page 9 of 16

10 stating that he wants Matthew out of the house and stating he is not getting anything from the purchased property. It is more likely on the application of the factors that Matthew s application for an occupation order in relation to the rented property would be granted. If that is the case, then Matthew can also apply for the transfer of the tenancy into his sole name under S.40 FLA 1996, additional powers of the courts. Question 1(b) On the basis that Matthew and Paul were not married, any property dispute regarding the purchased property will be governed by Trust and Land Law, and primarily under the Trust of Land and Appointment of Trustees Act (1996) (TLATA 1996). Matthew will be seeking to establish an implied trust, and have his interest valued, because the purchased property is in the sole name of Paul. Matthew will be able to establish a resulting trust. Where one party makes a direct financial contribution towards the cost of purchasing the property at the outset, there is a presumption that the parties intended to create a resulting trust in favour of the person making the contribution. The contributing party will get a share of the property in the same proportion to the contribution. Matthew has paid 50,000 deposit and he will be entitled to that. However, such trusts are rigid and do not provide financial recompense in cases such as Matthew s where he has undertaken more than paying just the deposit. Matthew will hope to establish a constructive trust, which is more flexible, however he will have to demonstrate that there was a common intention to share the property and that he acted to his detriment in reliance on that intention. The leading case on such trusts is Lloyds Bank v Rossett (1990). Matthew s case falls within the remit of where there is an agreement between the parties to share the property based on express comments made by Paul that the property belongs to us both. In the case of Hammond v Mitchell (1992) it was enough for the man to say don't worry about the future because when we are married it will be half yours anyway and I will always look after you. However, common intention is not enough and Matthew would also have to establish detrimental reliance. He would establish that by reference to the substantial works that he has undertaken on the property building and remedial works as well as redecoration. As was stated in Midland Bank v Dobson (1986) purchasing small amounts of equipment and some redecoration would not suffice; it has to be more substantial. The court would value Matthew s share by reference to his contributions using the case law available. It was stated in Midland Bank v Cooke (1995) that the court will try to give effect to the parties intentions. Furthermore, in the later case of Oxley v Hiscock (2004) it was said that the court would make a division based on what is fair having regard to the whole course of dealings between the parties in relation to the property. This was reinforced in the case of Jones v Kernott (2011). Page 10 of 16

11 Question 2 There are two potential ways in which the marriage can be ended, either divorce proceedings, or nullity proceedings. S.12 Matrimonial Causes Act (MCA) 1973 contains grounds upon which a marriage is voidable. The effect of a voidable marriage it that the marriage is valid unless and until it is avoided by the court on one of the specific grounds. Simon can seek to have the marriage annulled by virtue of S.12(b) MCA 1973 that the marriage has not consummated due to wilful refusal. We are told that sexual intercourse has not taken place. It is said to need a settled and definite decision arrived at without just excuse per Horton v Horton (1947). It is essential to look at the history of the marriage as was stated in Ford v Ford (1987), and if the conduct shows a clear intention not to pursue a married life then the marriage will be annulled, as it was in this case. The court will take into account all the circumstances of the case. Thus, for Simon they will look at the whirlwind romance, but how Hannah has stated she is not ready for the physical relationship and that has continued for 6 months. Furthermore, it may be said that she has an excuse for not consummating the marriage, but even then it can still constitute nullity as per Jodla v Jodla (1960). Simon may also seek to rely on S.12(h) that one party had an acquired gender before the marriage. This would mean Simon establishing that Hannah had acquired her new gender before the marriage, but only told him after the marriage. Under S.13(3) MCA 1973 the court will only grant Simon a nullity decree if they are convinced that Simon had no knowledge of this prior to entering the marriage. For Simon to succeed under S.13(2) MCA 1973, he must bring the proceedings within 3 years from the date of the marriage. However, there is no requirement to be married for any particular length of time before commencing proceedings. Bearing in mind the marriage was fairly recent Simon would be within the time limit for pursuing this matter. In all probability an order for annulment would be granted on either ground. Under S.16 MCA 1973 the marriage is valid until the decree of nullity is obtained. Upon granting the decree of nullity, the court has full jurisdiction to make arrange of financial relief orders under the MCA Thus Simon could proceed to deal with the financial aspects of the dissolution. It is important to note that either Simon or Hannah will still be able to make a claim on the death of the other under the Inheritance (Provision for Family and Dependants) Act Hannah could proceed with a divorce on the basis that the marriage has broken down irretrievably, the only ground for divorce, contained within S.1(1) MCA In accordance with S.3(1) MCA 1973 Hannah must wait until she has been married for one year before she can submit the application for divorce. Hannah will have to establish irretrievable breakdown proving one of the 5 facts contained within S.1(2) MCA These are: S.1(2)(a) adultery and intolerability. S.1(2)(b) unreasonable behaviour. S.1(2)(c) desertion. S.1(2)(d) living apart 2 years with consent..s.1(2)(e) living apart 5 years no consent required. There are potentially 2 facts which Hannah could rely on for her divorce proceedings. The stronger fact would be S.1(2)(b) that the respondent has Page 11 of 16

12 behaved in such a way that the Petitioner cannot reasonably be expected to live with the respondent. This is a two part test, both objective and subjective as illustrated with the case of Livingstone-Stallard v Livingstone-Stallard (1974), where you ask 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?. Basically, any reasonably minded person would come to the conclusion that Hannah could not reasonably be expected to live with Simon. Hannah could rely on Simon's conduct verbal abuse, working all the time, going out all the time, and sleeping with another woman. Behaviour can be acts or omissions, or a course of conduct as stated in Katz v Katz (1972). Simon's behaviour would constitute a course of conduct for the purpose of a behaviour petition. Equally, Simon could rely on unreasonable behaviour in an application for divorce on the basis of Hannah's deceit about her sexuality. Hannah could also rely on S.1(2)(a) MCA 1973 for her divorce proceedings. This states that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent. It is a two part test the adultery and the intolerability. What is strange is that the intolerability does not have to relate to the act of adultery. For example, the respondent may well have committed adultery, but the reason the petitioner finds it intolerable to live with him is his propensity to snore as opposed to the adultery. Adultery is described as voluntary sexual intercourse between two persons of the opposite sex, of whom one or both is married but who are not married to each other. It may be difficult to prove adultery unless Simon admits to court that he had a brief sexual encounter. Hannah must then satisfy the intolerability aspect, which is subjective does this petitioner find it intolerable to live with this respondent? If Hannah can establish this subjective intolerability, whether or not it is linked to the adultery, or something entirely separate, then she meets the requirements. It is therefore likely that Simon would be successful if he pursued nullity proceedings based on either ground previously stated, which he could do immediately. Equally, Hannah is likely to succeed if she applies for a divorce based on either S.1(2)(a) or S,1(2)(b) MCA 1973, although the latter is more likely. However, Hannah would have to wait until she has been married one year before commencing proceedings. As final point, if Hannah has not obtained a full gender recognition certificate following her change in sexuality, then the marriage could be void under S.11 MCA Question 3 Financial provision for Claire following divorce will be governed by Matrimonial Causes Act 1973 (MCA 1973). The types of order that the court could make are contained within S.22 to S.25 MCA 1973, including periodical payments orders, lump sum orders, property adjustment orders and pension sharing and pension attachment orders. In deciding what order(s) to make, the court will take into account all the circumstances of the case ( including the pre-nuptial agreement), the statutory factors in S.25(2) MCA 1973, the clean break in S.25A MCA 1973, and the case law that has developed. The court will look at the contents of the pre-nuptial agreement entered into by Zach and Claire before the wedding. Although such agreements are contrary to public policy, recent case law demonstrates more willingness by the courts to attach some weight, although how much depends on the circumstances. In K v K (Ancillary Relief: Prenuptial Agreement)(2003) the agreement dealt with capital but not income on the breakdown of a very short marriage. The judge decided Page 12 of 16

13 that the agreement was valid because the wife had understood the terms of the agreement and had been property advised and had willingly signed the document. Furthermore, in Radmacher v Granatino (2010) it was said in the right circumstances a pre-nuptial agreement could be given enough weight to be the decisive factor in determining an application for ancillary financial relief...it is unrealistic not to allow adults to decide on their own future financial relationships, always balancing with safeguards to protect people who enter into these agreements without a full understanding of the consequences. In relation to Claire, the court will consider the pre-nuptial agreement, which only deals with pre and post marriage assets very starkly, but will note that Claire did not take independent advice on the consequences, and therefore only limited weight may be attached to the agreement (if any) The court will also take account of the statutory factors within S.25(2) MCA 1973 as follows:- S.25(2)(a) income, earning capacity, property and other financial resources now or in the future. Zach's earning capacity far exceeds that of Claire. Although Claire no longer works, she would be expected to obtain work based on her work history, career and age. The Florida property is worth 1 million, several shares, policies and pensions that Zach has will probably be worth millions, none of which Claire has. In addition the matrimonial home has net equity of 1.4 million. It was stated in Cowan v Cowan(2007),that the court must take into account all property matrimonial and non-matrimonial, the latter being what the parties owned before the marriage. Clearly Zach had his 4 million fortune, shares and policies, and the Orlando property before he married Claire. However, it was further stated in Cowan that there is more likely to be good reason to depart from equality with non-matrimonial property. Thus, it may be that Claire will receive less than 50%. S.25(2)(b) Needs and Obligations. It is important to ensure that Claire has a home and sufficient monies for food, clothing and bills. Zach has more than enough. Claire will also be encouraged to obtain work, but it may take a while before she is able to achieve her pre-marriage income or status, which she gave up at Zach's request. Since White v White (2000) where there are surplus assets, as in this case, the court are no longer limited to meeting reasonable requirements, but apply the yardstick of equality to reach a fair outcome. S.25(2)(c) Standard of Living. The court will note that for the duration of the marriage Zach and Claire enjoyed a lavish standard of living. The courts will try to ensure that both parties maintain, where possible, a good standard of living. S.25(2)(d) Age of parties and length of marriage. The parties are approximately the same age, and relatively young, both with over 20 years left to work. The marriage is short (4 years). There are no children. There is the ability for Claire to get back into the workplace and be a successful beauty therapist again, earning a good income. Whilst she is breaking back into the market, she needs to be supported. S.25(2)(f) Contributions to the marriage by the parties. This is reference to financial and non-financial contributions being of equal value since the case of White v White (2000). Claire's unpaid work hosting dinner parties for clients and colleagues will be taken into account, as will her work in keeping the house to a high standard. In the case of Gojkovic v Gojkovic (1990) a substantial lump sum was awarded to the wife in recognition of her unpaid contributions to the husband's business. That may be the case for Claire, but obviously taking into account other factors including the length of the marriage. There may be the issue in this case of the stellar Page 13 of 16

14 contribution. Where a spouse has made a bigger contribution on the basis of an exceptional financial contribution, thus accumulating wealth beyond what is required to meet needs; it may be argued that there is justifiably a departure from equality. In the case of Cowan v Cowan (2002), the husband had appreciated the potential that plastic bin liners had to revoluntionise waste collection and set up companies to take advantage of this. It was a stellar contribution to the family wealth and it justified a departure from equality with the wife receiving only 38% of the capital assets. It appears to be the case that Zach has created something exceptional, over and above being a good businessman, with the creation of the toy which earned him his fortune, and may award Claire less of the capital assets. S.25(2)(h) Benefits lost. This would consider the loss of acquiring any benefit under the pension which Claire will suffer following the divorce (also covered under income and assets) bearing in mind Zach has several pensions. The courts will also consider that Claire has given up her career at the request of Zach, to allow him to continue to be successful within his business. In Miller v Miller (2006) if a spouse gives up a career to assist the other spouse in their business dealings, they should be compensated for that within the financial settlement. This does not apply to ordinary career prospects. It could be the case that Claire needs to be compensated for giving up her career as a beauty therapist, where she had her own business and earned 50,000 per annum. The courts will also consider whether to exercise their powers under S.25A MCA 1973 and impose a clean break between Zach and Claire, so they can get on with their respective lives without continuing financial dependency per Minton v Minton (1979). A clean break may be an option for Zach and Claire based on the short marriage with no children, although issues of financial disparity would need to be addressed within such an order, possibly a deferred clean break. Initially, Claire would be entitled to maintenance pending suit under S.22 MCA 1973, to allow for financial provision after the issue of divorce proceedings but to conclude on decree absolute. This would provide shortterm support pending divorce. It is highly likely that there would be a deferred clean break order with fixed periodical payments. There are no children and Claire has a good earning capacity and career, which she has only been absent from for a short period of time, but still needs time to get back to it. The starting point would be equal division of assets However, it is highly likely that Zach could establish a stellar contribution, so Claire would receive less of the assets, possibly 40%. In return for not pursuing Zach's pensions and investments, Claire may gain the matrimonial home and short-term periodical payments. The pre-nuptial agreement is likely to carry little weight if Claire has not had independent legal advice. Question 4 (a) Despite the fact that the child was conceived during a one-night stand, Ivan, as the father of the child, has financial liability for Belle. On the assumption that the child is his (following DNA testing or admission), he can be forced to pay money to Olga for the benefit of Belle. It would be advisable for him to enter into a voluntary arrangement with Olga to maintain control over what he pays. Otherwise, Olga would be able to make an Page 14 of 16

15 application to the Child Maintenance Service for maintenance, and can make an application for top-up maintenance under the provisions of Schedule 1 Children Act 1989 (CA 1989). The court can make an order under Schedule 1 in favour of a parent or a guardian or anyone with whom the child lives under a Child Arrangements Order. The court has the power to make the following orders:- unsecured or secured periodical payments a regular weekly or monthly payment for the benefit of the child, to enable the child to be maintained. A lump sum order to provide for a particular item, such as computer, or even in relation to housing a child. A transfer or settlement of property order whereby a property is either transferred directly to a child or to the parent for the benefit of the child, or a property is settled on trust for the benefit of a child. In view of Ivan's wealth, the numerous properties, and Olga's limited financial position, the court would have all the above-mentioned options available in this case. If Olga makes such an application, the orders that the court can make under S.15 Schedule 1 CA 1989 are discretionary. When exercising discretion, the court will consider the factors listed in paragraph 4(1) of Schedule 1: The income, earning capacity, property and other financial resources of the applicant and any parent, at present or in the foreseeable future. Ivan is extremely wealthy with properties worldwide, extensive personal wealth and an extremely good income. Olga is living in rented accommodation, is unable to return to work, so will be reliant on state benefits. The financial needs, obligations and responsibilities they may have or are likely to have in the foreseeable future. Ivan's financial obligations and responsibilities would appear to be of no concern in view of his excessive wealth, whereas Olga will need to obtain employment, pay for child care, and will struggle to make payment of bills on the accommodation where she resides. The financial needs of the child. Olga is going to require suitable (and stable) accommodation for Belle as well as sufficient monies for feeding, clothing and educating Belle. As the natural father, Ivan is equally responsible in meeting those financial needs. The income, earning capacity (if any), property or other financial resources of the child. This clearly is irrelevant in view of Belle being a baby. Any physical or mental disability of the child. This appears to be irrelevant to this scenario. The manner in which she is being, or is expected to be, educated or trained. This will be something for the future. In view of Ivan's wealth, it would not be unreasonable for Olga to expect Belle to be privately educated. In the case of Walker v Jeffries (2006) the Court of Appeal stressed the need to focus on the child's needs as distinct from the mother's. The Judge used the size of the award in Re P (Child:Financial Provision) (2003) as a benchmark in determining the size of the fund in this case. In the case of Re P (Child:Financial Provision) (2003) the father was extremely wealthy. The mother, a young lady, had very little capital of her own and no real earning capacity. The child was very young and the parties had never lived together. At first instance the court concerned itself with the applicant's housing needs, but on appeal it was treated differently and allowed the mother's appeal. The Court of Appeal drew a balance between seeking to give the child a standard Page 15 of 16

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