Problem Question, Divorce& FInancial Provision

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Sakina and Raj, now aged 52 and48, met 17 years ago and have been living together. They had two children, Tuscan and Umbria, now aged 15 and 12. However, after Raj discovered that Umbria was not his daughter but George’s instead, he and Sakina split up after 7 years of cohabitation. George was a very wealthy business man. She marries George, who dies a year later.

Sakina inherited George’s estate worth £10 million. Two years ago, she and Raj met again. Raj proposed marriage; Sakina accepted on condition that Raj formally agreed that, were their marriage to end within five years, he would agree to a lump sum of £100000 “full settlement”. Raj was at that time unemployed. He agreed to her condition.

After the marriage they lived together in the house Sakina had inherited. Raj started a business, using Sakina’s capital. She also provided valuable working experience, whist continuing to bring up the children. The business prospered.

A year ago Raj suspected that Sakina was having an affair with Vince. Rather than confront her directly, Raj had her followed by a private detective. She became convinced that she was being stalked by a stranger, suffered a nervous breakdown and is now incapable of looking after the children or assisting with the business.

She admits adultery with Vince, but Raj does not want a divorce. She wishes to divorce Raj and marry Vince.

Consider the legal implications in relation to:

Divorce; and

Financial and property matters on divorce.


Before the enactment of the Matrimonial Causes Act 1857[1] no decree of divorce could be obtained but a decree of judicial separation and didn’t entitle the parties to remarry. The only way to obtain a divorce and able to remarry was to procure a private Act of Parliament, but it was expensive and accompanied by unwanted publicity. Judicial decrees of divorce can be grant by the enactment of Matrimonial Causes Act 1857. From the beginning, divorce was based on the idea of matrimonial fault and men and women were treated differently[2] in the application. Until the Matrimonial Causes Act 1923[3], husband and wife were put in the same position. The grounds were extended[4] further in the Matrimonial Causes Act 1937[5]. [6]


Today the law on divorce is governing by the Matrimonial Causes Act 1973[7], however a various proposals for reform have been suggested due to the difficulties and problems[8] identified in 1973 Act. Criticism contained in the Law Commission report persuaded the Government and Parliament decided to reform through Family Law Act 1996. However the results of the pilot studies were regarded by the Government was very disappointing. It therefore decided not to implement the Family Law Act 1996[9] and Part II[10] of the Act (which deal with the divorce procedure) will be repealed. [11]

The reasons given for the failure of the FLA 1996 were unsuccessful piloting of information meetings. Firstly, the information meetings were not effective in saving marriages as they were too late. Secondly, the meetings tended to incline those who were uncertain about their marriage towards divorce. Thirdly, the meetings were too inflexible to provide information which meet people’s personal needs. Fourthly, in majority of cases, only the person petitioning for divorce attended the meeting but the other parties[12] depend for their success on the willing involvement of both parties. [13]

Besides, the complex procedures in Part II were likely to lead to significant delay and uncertainty in resolving arrangements for the future. This would not be in the best interests of either couples or their children. It would be unhelpful for families at what is always a difficult and emotional time. Part II would not fulfil the principles[14] of Part I[15]. [16]

Since Sakina’s marriage has lasted more a year, she can apply for a petition of divorce, s3(1) MCA 1973[17] could be disregarded. In order to divorce she must prove the sole ground divorce ---irretrievable breakdown of marriage s1(1) MCA 1973[18]. Further, one of the five facts under s1(2)[19] should be proved in order to establish irretrievable breakdown of marriage.  Both need not to be casually linked (Buffery v Buffery [1988][20]), provided the two are proved (Richards v Richards [1972][21]). S1(3)[22] is always coupled with s1(1) the irretrievable breakdown of marriage, which direct court to inquire (so far as it reasonably can) into the fact which alleged by both parties respectively, which suggest court to investigate whether there has been such a breakdown. [23]

Cleary, Sakina has committed adultery, but she cannot raise s1(2)(a)[24], because it must be respondent who commits it. However, she may well raise s1(2)(b)[25] behaviour, as  Raj had followed her by a private detective. She have to prove that Raj has behaved in such a way that she cannot reasonably to live with him.

 Raj must behave in certain way. However it is doubtful that conduct of Raj will be amounted to behaviour under this, as Sakina was affected indirectly by his conduct (via private detective). Raj’s behaviour must be something more than complaint, (Pheasant v Pheasant [1972][26]) and more than a mere state of affairs or state of mind. (Katz v Katz [1972][27]) In Thurlow v Thurlow[28] Rees J introduced that behaviour can be either positive or negative. [29]However, Sakina may be in a better position to point a positive conduct, than a petitioner who seeks to rely on inactivity. (Carter-Fea v Carter-Fea [1987][30]). To be reminded that behaviour neither need be blameworthy (Gollins v Gollins [1964][31]). Besides, behaviour need not be unreasonable but the expectation of cohabitation, (Bannister v Bannister [1980][32]). [33]

Whether Sakina could be reasonably expected to live with Raj is judged both objectively and subjectively. The test formulated by Dunn J in Livingstone Stallard v Livingstone Stallard[34] has been favoured by the courts[35]. [36]It must be the behaviour that a right thinking person would think was such that this petitioner cannot reasonably be expected to live with the respondent; personality of the parties will be taken into account.[37]However if petitioner react unreasonably to the respondent’s behaviour the petitioner may fail. [38]

The MCA 1973 provides two statutory protections for the respondent to a divorce petition. Firstly, s5[39] enables a respondent to defend a divorce based on the fact of five years’ separation. Secondly, s10[40] contains a procedure to enable the court to scrutinise the financial position is granted.  The procedure applies where the petition is based on s1(2)(d) or s1(2)(e) and provides protection for the vulnerable respondent since the decree absolute will not usually be granted until satisfactory financial arrangement have been put in place for his or her benefit. But it is merely a delay method.[41] Raj unlikely to have a defence under s5 or s10, but it can be a bar to divorce if he can prove that marriage isn’t irretrievable breakdown s1(4)[42].

Financial Provision

Courts have a wide discretion in deciding financial provision (Wagstaff v Wagstaff [1992][43]). However, that discretion must be exercised in accordance with MCA s.25[44] (as amended by the Matrimonial and Family Proceedings Act 1984[45]). MCA s.25(1)[46] directs the court to consider ‘all the circumstances’ and to have regard ‘in particular’, but not necessarily exclusively, to specified matters listed in s.25(2)[47]. It should be noted that a principle of sexual equality[48] exists in making financial provision orders. (Calderbank v Calderbank [1976][49]; Browne v Browne [1989][50]).[51] From the question itself, it is seems appropriate that Sakina will be ordered to maintain Raj as she has the greater wealth.

                In the recent years, courts have been producing further guidelines and principles to govern the courts’ discretion. There are three principles has been established as being the rationale for the financial provision contained in the 1973 Act, namely needs, equality and compensation.


 Fairness requires that the assets of the parties should be divided so as to meet their housing and financial needs. Baroness Hale said that the most common rationale for redistribution is that the relationship has generated needs which it is right that the other party should meet. [52]


 White v White [2001][53] suggested that equal division is an appropriate starting point, as each parties contributed to the marriage. It was stressed the nature of parties’ contribution towards marriage shouldn’t be discriminated. Lord Nicholls made it clear that the equality principle is not to be regarded as a presumption, but rather a yardstick, as it can be departed where there have good reasons to do so.[54]

Judges have different point of views in this matter, in Lambert v Lambert [2002][55], Thrope LJ described the yardstick of equality as a ‘cross check’. However, Charman v Charman [2007][56]the Court of Appeal stated that the principle should be used as a starting point and that is how it is generally understood. Hughes LJ in B v B( Ancillary Relief) [2008] [57]express the importance of the principle  which it guards against the discriminatory towards the natures of contribution and it underlines the essential fairness of equal division.[58]

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Lord Nicholls said that compensation is aimed at redressing any significant prospective disparity between the parties arising from the way they conducted their marriage. Baroness Hale described this as compensation for relationship-generated disadvantage, which goes beyond need. McFarlane [2006][59] which suggested that sometimes equal division wouldn’t have produce fairness[60]. VB v JP [2008][61]Sir Mark Potter suggested that compensation was just one of the strands of fairness and it wouldn’t necessarily be appropriate to try to calculate a precise figure as to the loss of earnings caused by the marriage. In a big money case he suggested that normally an equal division of ...

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