Family and Child Law: Ending the Marriage

Student Name
Professors Name
Course
Date
Ending the marriage.
In order for Gilbert to be able to end the marriage the courts have to believe that his marriage has been irretrievably broken down and nothing else can be done to fix it. Gilbert can file for divorce based on the ‘unreasonable behaviour’ ground against his wife. Veronica’s decision to not work full time anymore can make things incredibly challenging for Gilbert and the fact that she isn’t willing to compromise or even consider any other options. As well as the fact that she took on an extra art course, which obviously costs money. This is extra money that she cannot afford that Gilbert will have to cover for or contribute towards. She also does.t want Lulu to spend more time but carry on going to the nursery 4 days a week, even though she is at home as she has more time and will be more available to take care of Lulu. Gilbert suggested this as he has started to notice that it was going to be more expensive for him to cover Lulu’s nursery fees as well as the mortgage and hose bills etc. This could be seen as unreasonable behaviour as it could be argued that she behaved in such a way that Gilbert cannot be reasonably be expected to live with her. According to the case of Owens v Owens [2018], there is a three-stage enquiry for determining unreasonable behaviour and they are: first, determining what the respondent did or did not do by reference to the allegations of behaviour in the petition. (factual). The second is assessing the effect of the behaviour on this particular petitioner in all of the circumstances. (subjective). The third is evaluating whether as a result of the first and second, it would be unreasonable to expect the petitioner to continue to live with the respondent. (objective). This can also be applied to Gilbert and Veronica’s situation, as veronica’s behaviour is definitely considered unreasonable by Gilbert as any type of behaviour can be considered unreasonable so that is the fact of the situation. The effects of Veronica’s behaviour on Gilbert are lot and it is clearly making Gilbert’s life harder and if it was to carry on eventually, he would start to struggle financially as he’s the one making most of the money and Veronica makes less than him and does not contribute towards the household expenses. And evaluating these two points it would be unreasonable to expect Gilbert to continue to live with her.
On the other hand, it could be argued that Veronica’s dismissive behaviour is due to the way Gilbert speaks to her or treats her. It was mentioned that he called her ‘Lazy’ in a heated argument and it seems he always disagrees with her choices regarding everything. Meaning that it could be argued that Gilbert can’t file for divorce based on unreasonable behaviour as it could be seen that he is what causes Veronica to act ‘unreasonably’.
It was mentioned that the couple separated two weeks ago, meaning that’s they sleep in different rooms but they continued to live in the same house and have meals together as a family. According to s.2(6) Matrimonial Causes Act 1973, the definition of separation is when the couple are living apart in different households. If the couple continue to live under the same roof but sleep and different rooms, they might not be considered ‘separated’ as they still have meals as a family and live together in one house. This can be seen in the case of Mouncer v Mouncer [1972] where the spouses were separated but they still spoke to each other and had family meals, etc for the sake of the children. The court ruled that based on this they were not to be considered separated in any way and therefore their application was denied.
B) Financial orders
The court will make financial orders based on 2 categories. The first one is ‘income orders’ and within this there is ‘maintenance pending suit’. Which means one of the parties cannot support themselves fully. This gives them a certain amount of money regularly over a certain period of time. There is also something called ‘periodic payments’ under income orders. This means that the person will be getting payments until they remarry or however long they agreed on. The second category is called ‘capital orders’. Within capital orders there is something called ‘lump sum’ which is payment if full or installment. The amount and time can vary. This cannot be taken away if the person receiving remarries. There are also property adjustment orders and this can be subject to appeal. Since Gilbert and Veronica have a child that is less than 18 years old, the court will consider this as one of the factors to consider when making financial orders. According to the ‘Mosher orders’ relating to settlement of property, if they were to sell the property it would have to wait until the child is 18 years old or ceases full time education. Since Lulu is not in full time education and is not 18 years of age, the sale of the property should be differed. Another factor would be the fact that Veronica has no savings and does not own a property and cannot really support herself as she only works part-time so she is earing half of what she used to earn. This shows that she is completely dependent on Gilbert and if they were to get a divorce she would not be able to support herself. In this case the best-case scenario would be to give Veronica a maintenance pending suit. However, before the court makes any financial orders there are a few things they have to keep in mind. These are known as the s.25 factors and they are: whether the financial orders made by the court allow the parties to have a clean break considering they have a young child in this case. Some could argue that this would allow for a clean break for Gilbert and Veronica as they have only been married 4 years, which could be considered a short marriage, as well as the fact that both spouses have a well-established careers, regardless of Veronica working part-time only as this is a choice she made based on the fact that she said, “there is more to life than slaving away at a boring job”. Which suggests that she is more than capable of working a full-time job. However, on the other hand, it could be argued that if after the divorce she gets custody of Lulu, this will change the situation slightly as she will not have the enough time to work full time and take of Lulu who is only three years old. However, if she were to work full-time again and still was to get custody of Lulu, she could pay her nursery fees which keep Lulu for 4 days of the week and helps with her development. Gilbert on the other hand is able to take care of Lulu and her expenses as well as the household expenses if he was to divorce his wife Veronica. And Veronica would be able to support herself as she would move back with her family and she would still be earning a salary of £18,000, which is enough to support one person who doesn’t have children to care for or any house related fees to pay as she does not own a property.
It mentions in the text that Gilbert inherited £30,000. Because he inherited this money after he got married, it would not be considered a matrimonial asset. This means that Veronica is not entitled to any of it according to the Matrimonial Causes Act 1973. This would mean that the court would only take into account £50,000 of his savings when making financial orders. Gilbert owns the house and he owned it before Veronica moved in and she did not make any type of contributions towards the property. Which means that the only way that Veronica can get the property is if Gilbert says she can, because otherwise the court cannot make financial orders regarding the property in Veronica’s favour. The main benefit that can be lost in this situation is the pension. Under s.25(2)(1) MCA 1973 it states that in the case of proceedings for divorce of a marriage, the value to each of the parties of the marriage of any benefit which by reason of the dissolution of the marriage, that the party will lose the chance to acquire. In this case Veronica is likely to miss out on this benefit as Gilbert saw on the statement that she was not making regular contributions to her pension.
c) Orders regarding Lulu:
When making orders regarding children, the child’s welfare should be the courts paramount consideration. The court determines any questions with respect to, the upbringing of the child, or the administration of a child’s property or the application of any income arising from it. In the case of Re G (Education: Religious upbringing) [2012] EWCA Civ 1233, welfare was defined as, everything that relates to the child’s development as a human being and to the child’s present and future life as a human being. The judge must consider the child’s welfare now, throughout the remainder or the child’s minority and into and through adulthood. How far into the future the judge must peer is determined upon the context and nature of the issue. Furthermore, in the case of J v C [1970] AC668 paramountcy was defined as “reading the words in their ordinary significance it seems to me that they must mean more than the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. When all the relevant facts, relationships, claims and wishes of parents, risks, choices, and other circumstances are taken into account and weighed. The interest of the child’s welfare is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed”. It is important that the court considers all of the welfare checklist. These include the ascertainable wishes of the child and this is under s.1(3)(a) CA 1989. This is represented in the case of Gillick v West Novfolk and Wisbech Area Health Authority [1986] AC112, where the mom did not want any of her three daughters to be taking the contraceptive pill without her knowing as she was their mother, and they were all under the age of 16. The court decided against it as it is up to them and that individual’s doctor and it has nothing to do with the Mother. This shows the court taking into consideration the wishes of the child. Under s.7 CA 1989, the court may obtain a Children and Family Advisory and Support Service (CAFCASS) welfare report on the child. There are other factors that could affect the child’s wishes or make a child change their mind about a certain thing. For example, parental alienation. There is no statutory definition of this, however, it describes a situation where a child has been deliberately manipulated, coerced, or otherwise pressured to prefer on parent over the other. This can include anything from: constantly criticising or belittling the other parent, preventing the child from talking about the other parent, limited contact, removing any presence of the other parent from the life of the child, promoting the idea that the other parent does not love the child or giving the impression that the child must choose between parents or be punished by way of threats or by withdrawing affection and attention. There is also the term “implacably hostile” which again does not have a statutory definition, but it describes extreme, negative behaviour exhibited by one parent to undermine a child’s relationship with the other. There is no provision under the Child’s Act 1989 that deals with parental alienation. The existence of parental alienation is the professional judgement of CAFCASS. Where CAFCASS identifies alienation, it will work with parents and the court towards restoring the parent/child relationship. This can be difficult as cases can be extremely complex, and the entire family can be subject to numerous assessments. This can have a huge impact on children. The courts must carefully balance its decisions against interests of parents and what is in the best interests of the child. How to determine this is dealt with on a case-by-case basis.
The second on the welfare checklist is, the physical, emotional, and educational needs of the child. This is under s.1(3)(b) CA 1989. This includes accommodation, food, and other material provision social environment (school) and needs associated with disability. The standard of day-to-day care offered by either parent in caring for a child’s physical and emotional needs will be considers. This applies in this scenario as the court needs to make sure that if Lulu were to go and live with her mother, she will have the same life standard that she had when her parents were together in terms of school for example. Will Veronica be able to provide the same level of education as she had before? Some might argue that she cannot as she ill not be able to afford it as she now works part-time. It could also be argued that since Veronica will move back with her family, Lulu growing up around family will make her emotionally stable and they could also help with her education and physical needs even though they are not obliged to. It is not about the level of material comfort offered by the parents. Financial orders may equalise parents’ situation. The third of the welfare factors to be considers is the effect of change in circumstance. This is all about maintaining the ‘status quo’. This is the only factor of the welfare checklist that can be outweighed by some of the other factors. In the case of Allington v Allington [1985] FLR 586, it was said that “in the early years continuity of care in the most important part of the child’s sense security and that disruption of established bonds is to be avoided whenever it is possible to do so. As well as that, in the case of Re B (A child) [2009] UKSC 5, it emphasises that a child should not b...