Lecture Notes Unit 4 Divorce

'ee Thompson v. Thompson  /102 P3134 /102 1 ,ll E5 6! where 'achs held that nothing must have happened during the period of seven years from which the Petitioner as a reasonable person would conclude that the other spouse was still alive. 7romley 8although the point was left open in Thompson v. Thompson the +ourt is hardly li-ely to accept that the belief is reasonably held unless the Petitioner has made all appropriate en9uiries. The jurisdiction is discretionary# therefore even if the Petitioner can claim the presumption the court will not pronounce a decree# contrary to the justice of the case where there is a probability that the other party is alive. This might occur if an eplorer had epressed his intention of spending more than seven years in a country in which communication was impractical. , decree nisi must be rescinded if the other spouse is found to be still alive. ;nce it has been made absolute however it dissolves the marriage irrev ocably even though the spouse subse9uently reappears.

DIVORCE

The first principle was the 1? of the ,ct it is not necessary that both parties agree to end the cohabitation. +ohabitation can be brought to an end by the action or conduct of one of the parties only. 'ee T"e an# T"e >1=?  ,L5 0F at 0!F 8 The fact of separation is the critical element. It can be an act by unilateral intention of one spouse that does not have to be communicated to the other spouse. , distinction must however be made between between a unilateral act simpliciter and an involuntary one. Dhile the ,ct loo-s at the fact of separation rather than the intention behind it #if there is evidence of a contrary intention# that is an intention to -eep the marriage on foot inspite of a physical separation# then separation will not legally come into eistence so as to put an end to the marital relationship. 'ee Whiteoak v. Whiteoak  /1"62 GL+ 6@"!= @ a case in which the husband was imprisoned# after imprisonment the wife continued to visit him in prison but ceased to do so a couple months after and communicated her intention to him to end the marriage relationship.

e!aration an# till $iving un#er the same roof  (nder section >F? the parties can be separated in law notwithstanding that they continue to reside under the same roof and continue to provide household services for each other. Dhat is important is that the main incidents of the consortium vitae has ended. ;ne such element that is sometimes alleged as negating the eistence or continuation of separation is seual intercourse. Saunders v. Saunders >1=? 1F ,L5 F"!#F" 8 F"= Cowans  came to the conclusion of acts of seual intercourse on an isolated or causal basis being consistent with living separately and apart. 'ee also Spanos and Spanos >1"6?  Gam L5 !30 . 'ee  AB v. CD >77 F66! &+ F=# +arilaw# 7arbados? 'ee also the judgment of 'y-es  in  Alva Melford Heron – Muir v. Maureen Veronica HeronMuir  >amaica 'upreme +ourt# delivered ;ctober F1#F660?. ustice 'y-es analyed the decision in !ave" v. !ave"  (1976) 10 ALR 259 and concluded thus at paragraph 13 of the judgment: What the Court is saying is that living under the same roof is prima facie proof that the parties have not separated. It simply raises (I ish not to use the or! presumption ith all o" hat that entails an! to a#oi! arguments a$out re$utting the presumption an! presumption $e%oming %on%lusi#e i" not re$utte! an! so on) the pro$a$ility& that the %ouple ha#e not separate! an! li#ing apart' I oul! not go as "ar as saying that %orro$oration is reuire! an! I oul! not so !e%i!e in this %ase espe%ially $e%ause (1) the point as not e#en hinte! at in the su$missions ma!e (en! o" page 6) $e"ore me an! (2) there is the !anger o" en%rusting the statute ith i!eas an! %on%epts that the legislature seeme! to ha#e !eli$erately a#oi!e!' his is not to say that the *ull Court has not raise! a #ali! point' What I understand the Court to be saying, hich is good sense, is that here it is being alleged that parties have separated but still under the same roof the evidence should be e!amined carefully.   he nee! "or %are"ul e+amination is highlighte! here the petition is %onteste! an! the party opposing the petition is saying that the parties ha#e not separate! an! li#e! separate an! apart "or the tel#e months' "he evidence that the parties have separated and lived separate and apart for the re#uired period though under the same roof should be clear, cogent and une#uivocal.

'ee anche% v. anche%  F66 G*+, fam F0 for an application of the principles in !ave" v.!ave" . Judgment in Sanchez available on www.austlii.com website.

“Separated and thereafter lived separate and apart for a continuous period of not less than twelve months immediately preceding the date of filing of the petition for that decree.”

In order to establish that the full 1F months period of separation has run its course before the applicant can become entitled to a decree of dissolution of marriage it is important to have regard to: a? The date on which separation is alleged to have occurred b? The date on which the application is filed. In ,ustralian case of &n the Marriage of To## 'No.2(  F0 GL5 F6# FF Datson  held: 'hree concepts reuire examination/ a) separation, (b)living separately and apart, and (c)resumption of cohabitation. "n my view “separation”   means more than physical separation 0 it involves the destruction of the marital relationship ( the consortium vitae). $eparation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on the intention+ or alternatively, act as if the marital relationship has been severed. hat comprises the marital relationship for each couple will vary ,2arriage involves many elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and  private relationships. hen it is asserted that a separation has taen place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. hether there has been a separation will be a uestion of fact to be determined in each case.  As to the second element, that of living separately and apart , this element is  present and continues to be present unless there is a substantial resumption of the marital state. Casual acts of intercourse do not constitute an interruption of separation. An agreement to resume cohabitation which is not carried out is insufficient. ust as intention (or acceptance) and action thereon are ingredients in the element of separation so intention (or acuiescence) and action thereon are necessary ingredients in the termination of separation.  As to the third element resumption of cohabitation, once the necessary  period of separation has been established, the decree for dissolution should be made unless the court is satisfied that there is a reasonable lielihood of cohabitation being resumed. 'he onus of establishing such lielihood is on the spouse who asserts it . 2ore than the liely resumption of some elements of the marital relationships must be shown 0resumption of cohabitation must be shown

 

to be liely 0that is a bilateral intention on the part of both spouses to resume living together.

he approa%h o" Watson , in o!!-s %ase as appro#e! $y the *ull Court o" the *amily Court o" Australia in avey v. avey  (1976) 10 ALR 259' In this %ase the Court "o%use! parti%ularly on the element in the separation hi%h in!i%ates the mental $rea. $eteen the parties relationship' hat su%h mental element is a matter o" signi"i%an%e is shon $y the role hi%h the li.elihoo! o" a resumption o" %oha$itation has to play in the la o" !i#or%e' he *amily Court in avey v. avey   also a!!e! to the %he%.list in !odd and !odd ("o.#) regar!ing e#i!en%ing %onsortium the /nurture an! support o" the %hil!ren o" the marriage  Also the "ull Court in avey v.avey  stresse! that to as%ertain hether in any parti%ular marriage a $rea.!on ha! o%%urre!& it as not enough to go to a me%hani%al %he%.list& $ut the signi"i%an%e o" the #arious items in that list to the parti%ular persons in the light o" their li"estyles !uring the marriage as an ongoing relationship must $e %onsi!ere!' ee avey v. avey  at page 26' 3 e also agree with the statement in !odd$s case that 3what compromises the marital relationship for each couple will vary."t is for this reason why it is difficult to formulate a satisfactory test in cases where the parties live under one roof. As section 45 is concerned with the marriage of the parties ,it is the content of their marital relationship which must be examined, not a definition of what a marital relationship ought to include. 'his of course does not mean that the various statements about the content of the marital relationship are useless. 'hey do  provide valuable checlist in each case, but they cannot be applied mechanically. "f, during the marriage the parties treat as of little importance something which may ordinarily be a significant part of the marital relationship, then that aspect of their life may be of little importance in determining whether they have separated. 'he constituent elements of the marital relationship was referred to in 'odd6s case in these words (19%-) 9 A78 11 at 4#/ 2arriage involves many elements such as dwelling under the same roof, sexual intercourse, mutual society and  protection, recognition of the evidence of the marriage by both spouses in public and private relationships.  'o this general statement wewish toad but one phrase, the nuture and support of the children of the marriage. 'his is probably implicit in the various cases to which !odd$s case referred but in view of the provisions of the ss.4#,-1 and %1 of the :amily 7aw Act,it is important that it be made explicit.

"n %ussell v. %ussell  (19%-) 9 A78 1# at 14& and ;ractice 8eporter %&, 1%4 acobs  said 3 the recognition by society of rights and duties of husband and wife in respect of the children of their marriage and of the relationship f the children of the marriage to theor parents springing from their status as children of the marriage lies not on the periphery but at the center of the social institution of marriage.  "f the parties to the marriage say that they have stayed together for the sae of the children then they are saying that they are endeavouring to fulfill the responsibilities that the lawote also that un!er se%tion 27 prior to the grant o" a !e%ree a$solute or nullity o" marriage the Court must $e satis"ie! that a!euate arrangements ha#e $een ma!e "or a %hil! ho is un!er the age o" 1=  rele#ant %hil!' Section &' of the Matrimonial Causes Act  pro#i!es as "ollos? !%. (1) =otwithstanding anything in this Act but subect to subsection (!), the Court shall not mae a decree for the dissolution or nullity of marriage in any proceedings unless it is satisfied as respects every relevant child who is under eighteen that * (a) arrangements for his care and upbringing have been made and are satisfactory or are the best that can be devised in the circumstances+ or

(b) it is impracticable for the party or parties appearing before the Court to mae any such arrangements. (!) 'he Court may, if it thins fit, proceed without observing the reuirements of subsection (1) if * (a) it appears that there are circumstances maing it desirable that the decree should be made absolute or should be made, as the case may be, without delay+ and (b) the Court has obtained a satisfactory undertaing from either or both of the parties to bring the uestion of the arrangements for the children before the Court within a specified time. $ee &a eorgia et al v.'ailey  2 !5 $C # (Carilaw citation) and Sebastian v. Sebastian 2 199# CA !& (Carilaw Citation) in respe%t o" se%tion 27 o" the atrimonial Causes A%t !he arrangements for a relevant child of the marriage is usually in relation to* +) custody #) care  control-residence ) access /) maintenance 0) education 1tems +2/ will be dealt with in other units in more depth.

pon a Detition "or the issolution o" a arriage it is important to remem$er that the Court is primarily %on%erne! a$out the el"are o" all relevant children to the marriage' he atrimonial Causes A%t !e"ines a relevant child in the interpretation se%tion as? a) a %hil! o" $oth parties to the marriage in uestion or $) a %hil! o" one party to the marriage ho has $een a%%epte! as one o" the "amily $y the other party'

 An! in paragraphs (a) an! ($) o" this !e"inition /%hil! in%lu!es a!opte! %hil! an! %hil! o" a #oi! marriage' En the issue o" hether the %hil! has $een a%%epte! as one o" the "amily see?  3dams v. 3dams , 200= C77 (Carila %itation) 4ion v.4ion  F1967G  All HR 659

n!er e%tion 2 o" the atrimonial Causes A%t as amen!e! $y se%tion 2= o" the aintenan%e A%t& the Court may ma.e su%h or!er "or the %usto!y& maintenan%e an! e!u%ation o" any rele#ant %hil! or "or the maintenan%e o" a spouse in pro%ee!ings "or !issolution o" marriage $e"ore or a"ter the !e%ree a$solute is grante!' hese pro%ee!ings "or %usto!y an! maintenan%e may $e %ommen%e! a"ter the presentation o" the Detition "or !issolution o" marriage' he or!ers "or maintenan%e ma!e $y the Court in respe%t o" the maintenan%e o" any %hil! or spouse must $e in a%%or!an%e ith the pro#isions o" the aintenan%e A%t'(ee se%tion 2 (2) $elo)  ee se%tion 22 o" the A%t hoe#er "or hen the or!ers are to ta.e e""e%t' &+. Custody, maintenance and education !#. (1) 'he Court may mae such order as it thins ust for the custody, maintenance and education of any relevant child or for the maintenance of a spouse. (a) in any proceedings under section 1, or in any proceedings for dissolution or nullity of marriage before, by or after the final decree5 (b) where such proceedings are dismissed after the beginning of the trial, either forth with or within a reasonable period after the dismissal, and in any case in which the Court has power by virtue of paragraph (a) to mae an order in respect of a child the Court may, if it thins fit, direct that proper proceedings be taen for  placing the child under the protection of the Court. (#) 3n order under subsection (+) for the maintenance and education of any relevant child or for the maintenance of a spouse shall be in accordance with the provisions of the 6aintenance 3ct . (#) ;arties to a marriage or two persons in contemplation of their marriage to each other may,

for the purpose of facilitating the settlement of their affairs under this section with respect to the issue of maintenance, mae such maintenance agreement as they thin fit. (4) :or the purposes of this ;art, a maintenance agreement means an agreement that* (a) maes provision in respect of the support rights and obligations of the parties with respect to each other or any child that either party has an obligation to maintain under the 2aintenance  Act+ and  (b) includes provisions in respect of* (i) financial matters+ (ii) the right to direct the education and moral training of their children+ or  (iii) any other matter in the settlement of the affairs of the spouses, including an agreement that varies an earlier maintenance agreement. (0) !he provisions of sections #/() to (++), #/(+) and #0 of the 6aintenance 3ct shall have effect, with the necessary modifications, to maintenance agreements made under this section.7 

-*)-S - I%A%CIA/ 0-ISI% - S02S) *2-I%3 *I-C) 0-C))*I%3S 4gross or annual sum n!er se%tion 20 o" the atrimonial Causes A%t& in !issolution o" arriages pro%ee!ings the %ourt on the appli%ation o" a !epen!ent spouse may ma.e an or!er "or one spouse re"erre! to in the A%t as the %ontri$uting spouse to pay to the !epen!ent spouse either a gross sum o" money or su%h annual sum not e+%ee!ing the li"e o" the !epen!ent spouse ha#ing regar! to the means o" the !epen!ent spouse& the a$ility o" the %ontri$uting spouse an! to all the %ir%umstan%es o" the %ase' Again the Court must ha#e regar! to the pro#isions o" the aintenan%e A%t se%tion 1 in ma.ing the or!ers' ee se%tion 22 as to hen or!er is to ta.e e""e%t' $ection ! of the 2atrimonial Causes Act provides >(1) ?n any decree for dissolution of marriage , the Court may, if it thins fit* (a) order a spouse (hereinafter in this section referred to as the contributing spouse) to secure to the other spouse (hereinafter in this section referred to as the dependant spouse), to the satisfaction of the Court2  (i) such gross sum of money5 or 

(ii) such annual sum of money for any term not eceeding the life of the dependant spouse, as having regard to the means of the dependant spouse, the ability of the contributing spouse and to all the circumstances of the case, the Court thinks reasonable5 (b) for the purposes of paragraph (a), refer the matter to any attorney*at*law to settle and approve a proper instrument to be executed by all necessary parties, and may order the costs of such instrument to be paid by the parties, or such of them as the Court thins fit+ and  (c) where the matter is referred under paragraph (b), suspend the pronouncement of the decree until the instrument has been duly executed, and on any petition for dissolution of marriage the Court shall have power to mae interim orders for such payments of money to the dependant spouse as the Court thins reasonable. + (#) 1n any such case as aforesaid the Court may, if it thinks fit, by order, either in addition to or instead of an order under subsection (+), direct the contributing spouse to pay to the dependant spouse during their 6oint lives such monthly or ee$ly sum for the maintenance and support of the dependant as the Court may think reasonable.

(#) "f, after any such order has been made, the Court is satisfied that the means of either or both of the parties have changed, the Court may, if it thins fit, discharge or modify the order, or temporarily suspend the order as to the whole or any part of the money ordered to be paid, and subseuently revive it wholly or in part as the Court thins fit. (/) 3n order under subsection (+)(a) or (#) shall have regard to the matters specified in section +/(/) of the 6aintenance 3ct.75

Case &aw on Spousal 6aintenance ending 4ivorce roceedings ee 'arr 86ei9erink v.6ei9erink , !! $C -% (Carilaw Citation) 0application by the wife under section ! of the 2atrimonial Causes Act prior to the amendments by section !5 of the 2aintenance Act.

Surdeen v. Surdeen  7M &88' SC 9& 4Carila citation :appli%ations "or spousal maintenan%e %an only $e ma!e un!er the atrimonial Causes A%t in the upreme Court pen!ing !i#or%e pro%ee!ings'

*arby v. *arby , 2007 C 59 (Carila %itation) ;err v.;err  , 2006 C 6= (Carila Citation) 7arrett v. 7arrett , 2000 CA 2 (Carila Citation) !i#or%e !oes not o" itsel" $ring an en! to maintenan%e agreement alentine v. alentine  (1992) ,LR 5 %ite! $y ;roo. , in ;err v. ;err 

Maragh v. Maragh  , 2009 C 15 ( Carila Citation) Case a"ter the re%ent amen!ments to the atrimonial Causes A%t $y the aintenan%e A%t' 0rince Campbell v. Campbell , 200= C 1 (Carila Citation)

 RECOGNITION OF FOREIGN DECREES

ee @ e%tion 2 o" the atrimonial Causes A%t @

Re%ognition o" "oreign !e%rees' ee :oan ;unice 6cCalla v. :ohn 3rchbald 6cCalla & upreme Court o" ,amai%a& !eli#ere! eptem$er 26&2006& ;roo.s ,'