Discussion Topic:

Carl and Gail have been married for eight (8) years. They jointly own a three-bedroomed house worth 450,000. They have one child, Julia aged seven (7).

Gail gave up her successful job as a successful accountant to look after Julia. Carl works as a successful lawyer and earns 250,000 a year. The couple also own a cottage that Gail inherited from her mother before she and Carl met but she rents this cottage out to pay for Julia's school fees.

In the last two (2) years Carl and Gail's relationship has changed in that Carl decides everything for Gail; from what sheis allowed towear to what she can do and to whom she can talk. Gail loves Carl and wants to please him. She tries very hard, but Carl always finds fault and punishes her. He is often violent to Gail, pushing her down the stairs, hitting her, and on one occasion he broke her arm: she never reported it to anyone, as she was very embarrassed.

In recent weeks Carl has become even angrier and has taken his frustration out on Julia ona number ofoccasions, shaking her violently. Gail cannot afford to move out as Carl controls the spending of the household income and she wants to stay with Julia in the house. Gail has had enough and wants to divorce Carl in the long term and wants him out of the house, so that she and Julia can live in peace.

To taunt her one night, Carl comes home drunk and starts banging on the bedroom door. When Gail threatens him with the police, he shouts that he will come back later and 'finish them all off.' Gail is now extremely frightened. She wants the violence to stop immediately and then to divorce Carl, but she is worried that the court will award himall ofthe marital property and as she has no job,she is worried that her and Julia will be left destitute.

In the light of the above consider the following for discussion:

1. Advise Gail on how family law can assist her in the short term with regards to Carl's violence and threats against her and their daughter, Julia.

2. If Gail chooses to divorce Carlon the basis oftheir marriage having irretrievably broken down due to his unreasonable behaviour, how might the court redistribute the marital property?

Response Post:

Irretrievable Breakdown of a Marriage:

Section 1(1) of the Matrimonial Causes Act 1973 states that either party or both in a marriage can apply to the court for a divorce order that will dissolve the marriage on the grounds that the marriage has broken down irretrievably¹. The law is now governed by the Divorce, Dissolution and Separation Act 2020 which amended the MCA. This act makes clear that irretrievable breakdown would be the justification for the grounds for divorce. The message this sends is that divorce is not just an individual choice but allows the law to determine when the marriage has broken down². Section 1(3) states that the court dealing with such application should take the statement to be conclusive evidence that the marriage has broken down and under subsection (b) make a divorce order³. This means that the statement of one saying that the marriage has broken down would be conclusive. This is the only way of retaining the breakdown clause without having to prove it, which could lead to a fault base system.

As mentioned in my initial post, the court will take into consideration the spouse's behaviour when dividing the marital assets upon divorce, these being personal and financial misconduct. Personal misconduct will cover cases that such conduct has passed the threshold, including activities of a legal nature such as rape and serious violence's such as domestic violence and s18 related offences⁴. This type of behaviour will be cited as a ground of unreasonable behaviour when applying for a divorce. Adultery and excessive drinking will not usually be a sufficient basis for grounds in splitting the financial assets.

The court has the discretion to consider financial management of a spouse that has caused such a determinant to the marriage. Such examples are gambling, failing to pay tax bills and having little to no consideration in transferring assets to their spouse for their own benefit⁴. The case ofFinch v Baker[2021] looked at whether the spouses financial conduct should have impacted the final settlement.

Does anything I have mentioned above relate to the case for Carl and Gail?

1- Matrimonial Causes Act 1973, S1(1)

2- J, Herring, Family Law, (10th edition, Pearson 2021) Chapter 4

3- Divorce, Dissolution and Separation Act 2020S1(3)(a)(b)

4- Yellowlees F, 'Does Bad Behaviour Affect the Financial Settlement in a Divorce?' (WBW Solicitors) accessed 20 April 2024

5- Finch v Baker [2021] EWCA Civ 72

Respond to the above response post using OSCOLA referencing for the primary and secondary sources.