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:

Herring states that when determining a just outcome, the court takes into account the duration of the marriage and the presence of dependent children. ^[1] The Matrimonial Causes Act 1973, specifically Section 25, holds significant importance in ensuring the suitable financial resolution. ^[2]

Gail was married for a duration of 8 years, during which she had Julia who is 7 years old. Gail inherited a cottage before her marriage. ^[3] Will this cottage be taken into account in the court's assessment? The court has the option to choose between Jones' approach ^[4] or Scatliffe's approach ^[5] when determining Gail's financial status. ^[6]

It can either consider the cottage as part of the marital assets without deviating from the principle of equality (Miller; McFarlane) ^[7] , or it can exclude the cottage as a non-marital asset, obtained before the marriage, and still deviate from the equality principle ^[8](see, e.g. N v F (2011) ^[9] ; B v PS (2015)). ^[10] Nonetheless, the court will differentiate between matrimonial assets (McCartney(2008)) ^[11] and non-matrimonial assets (Hart v Hart(2017)). ^[12] Regardless of the approach taken by the court, fairness will always be (Martin v Martin). ^[13]

Would Carl's conduct count?^[14]

Carl's behaviour could potentially justify deviating from the principle of equality. ^[15] In the case of H v H(2006), the husband assaulted the wife with a knife, leading to a conviction of attempted murder and a 12-year sentence. ^[16] Similarly, in K v L, the husband committedsexual abuse against the wife's grandchildren, prompting the court to find substantial reason to award the husband with no assets. ^[17] Additionally, in FZ v SZ , a baseless accusation of domestic violence was deemed adequate grounds to depart from the principle of equality. ^[18]

Potential outcome

Due to absence of prenuptial agreement, and due to the nature of Carl's conduct, the court is unlikely to consider equal sharing principle, though Gail's cottage won't be included. Nonetheless, Gail can either purchase Carl's share in the property, or can postpone the sale till Julia reaches full education age or move out of the house.^[19]

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Footnotes

^{[1] Jonathan Herring, Family Law (10th edn. Pearson 2020) 262.}

^{[2] Matrimonial Causes Act 1973, s. 25.}

^{[3] BD v FD (Financial Remedies: Needs) [2016] EWHC 594 (Fam); JL v SL (No. 2) (Financial Remedies: Rehearing: Non-Matrimonial Property) [2015] EWHC 360 (Fam)}

^{[4] Jones v Jones[2011] EWCA Civ 41.}

^{[5] Scatliffe v Scatliffe[2016] UKPC 36.}

^{[6] Herring (n 1).}

^{[7] Miller; McFarlane [2006] UKHL 24.}

^{[8] White v White [2000] 3 FCR 555.}

^{[9] N v F (Financial Order: Pre Acquired Wealth) [2011] EWHC 586 (Fam).}

^{[10] B v PS [2015] EWHC 2797 (Fam).}

^{[11] McCartney v Mills-McCartney[2008] 1 FCR 707.}

^{[12] [2017] EWCA Civ 1306.}

^{[13] Martin v Martin [2018] EWCA Civ 2866.}

^{[14] Matrimonial Causes Act 1973, s. 25(2)(g).}

^{[15] Herring (n 1).}

^{[16] H v H (Financial Relief: Attempted Murder as Conduct)[2006] Fam Law 264.}

^{[17] K v L [2010] EWCA Civ 125.}

^{[18] [2010] EWHC 1630 (Fam).}

^{[19] Mesher v Mesher[1980] 1 All ER 126; Martin v Martin[2018] EWCA Civ 2866.}

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