A person commits adultery if he or she has voluntary sexual intercourse with another person, one or both of them being married to someone else. The intercourse must involve some penetration but need not be complete. Oral and anal intercourse are probably not adultery in themselves, but between a man and a woman may give rise to an evidential presumption of vaginal intercourse as well; they may also amount to "behaviour ..." under s.1(2)(b). The first of the five facts involves a two-part test. It is not enough to show that the respondent has committed adultery; the petitioner must also show that she finds in intolerable to live with the respondent. The petitioner's own adultery is not a ground for divorce, and if the petitioner as well as the respondent has committed adultery it may be difficult to convince the court that it is intolerable for them to continue living together.
If the petitioner and the respondent live tighter for a period of six month after petitioner discovers the respondent’s adultery, the petitioner cannot rely upon unless the adultery continuing. Any period or periods totalling less than six months will be disregarded. However, the court will consider an accumulative period of six moths or more. There is no requirement to actually name the person with whom the respondent has committed adultery. However, if the person is known, it must be stated in the petition. Cleary v Cleary (1979) wife left husband for another man, but then returned to him for a few weeks before leaving again this time to live with her mother. Husband petitioned for divorce. Held; divorce granted as she had committed adultery and he found it intolerable to live with her.
If the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, this may be used as one of the facts.
The first test is unreasonable behaviour. This is an objective test. The court will look at the behaviour it self and judge whether it is unreasonable.
The sort of conduct that is reasonable will depend on the circumstances. This does not necessarily include physical violence. Verbal abuse, threats, insults, nagging, demanding or refusal sexual intercourse unreasonably, intimate relationships with others, cruelty and failure to provide money, excessive drinking or financial extravagance, for example would suffice; but worth bearing in mind that court doesn’t insist on really severe allegations of unreasonable behaviour in order to grant divorce. Relatively mild allegations such as devoting too much time to a career, having no common interest or pursuing a separate social life may well suffice. Using mild allegations may also make it easier to agree the contents of the petition with your spouse before you issue it. There is no need to prove that the petitioner intended to inflict misery on the petitioner. Ash v Ash (1972) W petitioned for divorce on the grounds of H's alcoholism and violence towards her. Granting the petition, the judge said the test was whether the particular petitioner could reasonably be expected to live with the respondent: thus, for example, a violent petitioner can reasonably be expected to live with a violent respondent, an alcoholic petitioner with a respondent similarly addicted, or a flirtatious husband with an equally susceptible wife.
If the respondent has deserted the petitioner for a period of more than two years immediately before the petition is given to the court, this may be one of the facts entitling the petitioner to a divorce.
However there must be an intention to desert, the petitioner must not consent to the separation; the respondent must not have good cause for deserting the petitioner. The desertion must be for a continuous period of two years. The period of desertion must be continuous period of two years and separate periods cannot be added together. However, if the parties have lived together for any period or periods that total less than six months during two years, this is disregarded.
Living apart includes a mantel element and is necessary to show that at least one of the spouses regarded the marriage as being at an end. If the parties have lived apart for a period of two years immediately before petition is given to the court and both consent to a decree of divorce or judicial separation, the court will grant a decree.
The petitioner will give their consent by issuing the petition and confirming that the details in the petition are correct. The respondent may give their consent in the acknowledgement of service. This is a questionnaire sent by the court to the respondent with the petition. It contains a number of questions. One of the questions asks if the respondent gives their consent. If respondent does not give their consent in the acknowledgement of service, it is possible for them to give their consent at formal hearing.
It is possible for two people to live apart in the same house. However, they will be expected to live independent lives. This will include cooking, washing, eating and sleeping separately. If the two parties live together for a period less than six months during the two year period, this will be disregarded. Mouncer v Mouncer (1972) the parties began to sleep in separate bedrooms but continued to take meals together and to share the cleaning although each did their own washing left and petitioned divorce on the basis of two years separate plus consent. Petition dismissed. It was held that the parties had continued to live in the same household. Sleeping in separate bedrooms is not enough. Need to show that the parties living separate lives.
It is important that the grounds for divorce are established. They are that the marriage has irretrievably broken down. The court will make enquiry of the petitioner as to when and the circumstances surrounding them coming to the conclusion that the marriage was at an end.
The respondent to a petition for divorce in which the petitioner alleges five years' separation may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage. Le Merchant v Le Merchant (1977) in this case Husband petitioned for divorce on the basis of separation opposed on the basis that she would suffer financial hardship if it granted, namely the loss a widow’s pension. The husband had sufficient assets to alleviate the hardship. It was held that the loss of such pension was evidence of grave financial hardship and the appropriate course would be dismissing the petition unless the petitioner could put forward an acceptable financial offer.
Often one spouse may be able to establish grave financial hardship where the other spouse has a significant pension with the surviving spouse benefits. If the granting of the decree does not add to a hardship already suffered, the court will grant the decree.
It is possible for two people to live together under in the dame house. If they do live in the same house, they must live separate lives independent of each other. This means that they will cook, eat, wash and sleep separately. Saunders v Saunders (1965) in this case wife left husband after 5 years of marriage alleging desertion on the basis of his conduct towards her, expecting her to work long hours in their shop eve when she was pregnant, failing to support her in her confrontations with her parents-in-law, opening her mail and general inconsideration towards her. It was held that the conduct amounted to constructive desertion. The test was whether the other spouse had ’been guilty of such grave and weighty misconduct that the only sensible inference is that he knew that the complainant would in all probability withdrew permanently from cohabitation with him, if she acted like any reasonable person In her position’.
Section 3 of MCA prohibits petitions for divorce within one year of marriage. No petition for divorce shall be presented to the court before the expiration of the period of one year from the date of the marriage. Nothing in this section shall prohibit the presentation of a petition based on matters which occurred before the expiration of that period.
Now I am going to look at cohabitation and problem area as inheritance and property.
There is no legal definition of cohabitation; it generally means to live together as a couple without being married. Although the term common-law wife or husband is frequently used to describe cohabitees these relationships do not have legal recognition.
If you are cohabiting and you and your partner have separate bank accounts. Neither if you can have access to money held in the other partner’s account. If one partner dies, any balance in the account will be property of the estate and cannot be used until the estate is settled. If they have joint account if one partner dies the whole account immediately becomes the property of other.
As an unmarried mother you have sole responsibility for a child unless you register the birth of your child together with child, make a formal agreement with the father of the child. In the case of separation, you and your partner may make an informal arrangement for contact with the child. If this is not possible, a court can be asked to intervene. The court order will usually allow contact between the child and the parent whom the child is not living. A male partner is not presumed to be the father of a child. His name can only appear on the birth certificate in certain well-defined circumstances. Both parents are responsible for supporting a child financially. The father is equally responsible even if he is neither living with the mother nor named on child’s birth certificate. He can be contacted by the CSA for maintenance.
A mother can appoint a guardian to act on her death and a father can appoint a guardian to act on his death if he had parental responsibility. If there is no will, the child of unmarried parents has a legal right to inherit from both parents and the families of both parents. If the couple is gay or lesbian, the child cannot inherit form partner who is not child’s parent, unless specifically included in the will. The rules about the nationality of child are complicated and depend on the parents immigration status as well as whether the parents are married or cohabiting. Cohabiting couple cannot adopt a child as joint parents. One partner must apply to adopt as a single person.
In all legal proceedings, whether civil or criminal, cohabiting partner are treated as if the had no relationship and so can act against each other. If one partner dies without leaving a will, the surviving partner will not automatically inherit anything unless the couple owned property jointly. You and your partner are liable for your own debts, for the whole of debts in joint names and for debts for which you are jointly and severally liable. If you have acted as guarantor for your partner. You will be liable for the debts. A couple can separate informally without the intervention of a court.
Now I am going to look at the Children’s Act 1989 which provides a framework for decision making and legal intervention relating to the care of children in the context of the family, in relation to local authority assistance to families and in relation to intervention for the protection of the child. The frame work defines how families, courts, local authorities and voluntary organisation will work together to determine and meet the child’s welfare.
The welfare of child is the leading concept in the Children’ Act 1989. S1 (1) of CA 1989 is ‘When a court determines any question with respect to (a) the upbringing of a child, or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration’. The ‘welfare principle’ will determine any contested proceedings under S8 of CA 1989 and it will also extend to care proceedings (S31 of the CA1989).
S1 (3) establish that the court must have regard in particular to; the ascertainable wished and feeling of the child (considered in the light of his age and understanding); the child’s physical, emotional and educational needs; the likely effect of any change in circumstances; child’s age, sex, background and any relevant characteristics; any harm suffered or at risk of suffering; capability of parents and other relevant persons, of meeting the child’s needs and range of power available to the court under |the CA 1989 in the proceedings in question. In S1(2) any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. S1(5) is Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.
Parental responsibility s2 Of CA 1989, Is a concept of parenthood encompassing both the obligations and the corresponding rights of parents which flow from their responsibility. Parents do not necessarily have Parental Responsibility (PR) and people may have PR even if they are not parents.
Parental Responsibility s2 of CA 1989 establish which type of persons gets parental responsibility. Mother (married or not) and married father can get parental responsibility. Unmarried father did not used to automatically get PR and had to acquire it under s4 of CA 1989, but s111 of the ‘Adoption and Children Act 2002’ amended s4, so that if the couple jointly register the birth, unmarried father will automatically get PR. Step-parents did not used to automatically get PR but s112 of Adoption and \children Act 2002, created a new section 4A within the CA 1989, allowing step-parents to acquire PR by agreement or court order. More than one person can have PR for the same child at the same time (s.2 (5)).
According to s.3(1) of the Children Act 1989, the phrase "parental responsibility" describes all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. The rights &care not themselves defined in the section, but arise from various common law and statutory sources and are considered below
Parents are expected to retain their responsibilities and to remain as closely involved as is consistent with their child’s welfare, even if the child cannot live at home either temporarily or permanently. Where involved, it is the social worker’s task to enable this.
Mother and married father only lose PR if they lose their parental status e.g. adoption. Unmarried father can lose PR by court order on request of the mother or child s.4 (2A) CA 1989. PR is not lost when a Local Authority takes a child into care (although the LA then acquire PR too if it is under a court order, and the parents right to exercise PR id not restricted). Divorce does not affect PR but Parent’s death ends PR.
Under s.8, four different types of orders can be made in relation to children and these are Residence Orders, contact orders, prohibited steps orders and specific issue order. Each of these orders will determine a particular matter relating to the child’s upbringing. An s.8 orders generally lasts until the child reaches the age of 16.
Now I am going to explain these orders in detail.
A residence order settles the arrangements to be made as to the person with whom the child is to live. Such orders are most commonly sought in proceedings arising from a divorce or judicial separation, and replace the former "custody orders". A residence order is not synonymous with a parental responsibility order - the "other parent" normally retains full parental responsibility subject to any restrictions imposed by the order - but where a residence order is made in favour of an unmarried father currently without parental responsibility, s.12(1) requires the court to make a parental responsibility order in his favour as well. Under s.12(2), limited parental responsibility (excluding the right to consent or refuse consent to adoption or the appointment of a guardian) is conferred automatically upon any other person in whose favour a residence order is made.
A contact order requires the person with whom the child lives (or is to live) to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other. It thus replaces the former "access order", and is most often used to preserve the child's links with both his parents (and perhaps other relatives too) after their marriage or other relationship has broken down.
A prohibited steps order is an order that no step, which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court. It is thus equivalent to a prohibit injunction, but under s.9 (5) the court must not make a prohibited steps order to achieve a result that could equally well have been achieved by a residence or contact order.
A specific issue order, as its name suggests, is an order giving directions for the purpose of determining a specific question which has arisen, or may arise, in connection with any aspect of parental responsibility for a child. Such an order, for example, might enable the court to resolve a dispute about a proposed change of name, a move overseas, medical treatment, the child's education, or an abortion for a pregnant schoolgirl. Like a prohibited steps order, a specific issue order must relate to an aspect of parental responsibility and must not be used to compel a local authority to provide support nor where a residence or contact order would be appropriate.
A care order is an order placing the child in the care of local authority and a supervision order is an order putting the child under supervision of a L.A or of a probation officer. Application for a care order or supervision order can be made only by L.A. or NSPCC. A court has no power to require a L.A. to commence proceedings and neither can it make an order unless there has an application.
A court may make a care order or supervision order in respect of a child under 17 only if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm; and the harm or likelihood of harm is attributed to the care given to the child or likely to be given to him if order were not made, not being what it would be reasonable to expect a parent to give him or the child’s being beyond parental control.
Assuming an application has been made, the court must next satisfy itself that the "threshold conditions" for making a care or supervision order - they are the same in both cases - have been met. The conditions apply even if the parties to the proceeding all agree to the making of an order, though the court's enquiries in such cases may be less rigorous than in cases where the application is opposed.
Having crossed the threshold the court must also apply the welfare test, using the standard checklist in s.1(3), and may not make a care or supervision order unless it considers that doing so would be better than making no order at all. A number of decisions have made it clear that the welfare test is quite separate from the threshold: even where a child is suffering significant harm, his welfare does not necessarily require him to be removed from his family.
Court must not make an order unless it considers that doing so would be better for the child than making no order at all. S.1 (5), the ‘no order’ presumption.
Orders available to the court on hearing an application for a care or supervision order and these orders are; a care order and supervision order if threshold criteria satisfied, a residence or other s.8 order, whether or not criteria satisfied, a s.8 order in combination with the supervision order if criteria satisfied and a family assistance order under s.16 with agreement of all persons (other than child) named in the order, whether or not criteria satisfied.
In application for a care order. The L.A. should outline what plans it has if a care order is made. Care plan are scrutinised by the court. If the court makes a care order, it is on the basis of the L.A.’s care plan, over which the court does not have control.
When a care order is granted the local authority acquires limited parental responsibility: it can exercise most of the powers of a normal parent (subject to a general duty under s.22 to take into account the views of the child, his parents and other interested parties), but cannot appoint a guardian for the child, consent or refuse consent to his adoption, or cause him to be brought up in a different religion. The parents' parental responsibility is not removed by a care order, but the local authority has power under s.33 (3) to determine the extent to which they may be permitted to exercise that responsibility. Thus, for example, the parents retain the right to manage the child's property, and are normally allowed to make parental decisions as to his education, and (if appropriate) consent to his marriage under 18.
Under s.34(1), the local authority must allow a child in care reasonable contact with his parents and/or guardians, and if there was a residence order in force immediately before he was taken into care, with the person in whose favour that order was made. The authority may of course allow contact with other friends and relatives too, but has no statutory obligation to do so. Contact may be refused for up to seven days where this is urgently necessary to protect the child's welfare, but Regulations require the authority in any such case to give written notice to the child (if he is able to read it) and to any person whose contact is being refused.
Before making a care order, the court is required by s.34 (11) to consider the local authority's arrangements for contact and allow the parties to comment on them. If the local authority wishes to prevent contact between the child and a person who would otherwise be entitled under s.34(1), or if there is any disagreement as to what constitutes "reasonable contact", the court has powers to make such contact orders (or no-contact orders) as it thinks appropriate. On the application of the local authority or the child the court can make, vary or discharge any contact order; on the application of a person entitled under s.34(1) or (with leave) of any other person it can make, vary or discharge an order regulating the child's contact with that person. (Thus, for example, one parent cannot apply for a termination of the child's contact with the other.)
The conditions under which the court can make a supervision order are the same as those for the making of a care order, though it is worth noting that a supervision order is among the orders that can be made by the youth court in criminal proceedings. A supervision order lasts for one year, but may be extended to three, and places the child under the supervision of a social worker who is under a duty to advise, assist and befriend him or her. It does not in itself confer on the supervisor any right to enter the child's home or to remove him if he appears to be further abused. Unlike a care order, which vests (shared) parental responsibility in the local authority, a supervision order leaves parental responsibility entirely with the parents and gives the local authority has no powers to limit their exercise of it. The choice between the two orders is not therefore a matter of chance: it is important for the court to ensure that the order made is the right order in the circumstances.
A supervision order comes to an end after a year unless it is renewed; a care order terminates when the child reaches the age of 18. Either kind of order may be discharged by the court before that date, however, or either is discharged automatically by any subsequent residence order. The child, a person with parental responsibility, the supervisor, or a person with whom the child is living and on whom a condition has been imposed, may apply to the court for the variation or discharge of a supervision order. (A care order cannot be varied.)
