Bonus Question 1
Divorce and Dissolution of Civil
Partnerships – bonus question
H and W married six months ago after a brief courtship. From the outset, the relationship
was fraught with problems. W had led a very sheltered life and found some of the sexual
practices H forced her to undergo extremely repugnant. H responded by claiming that W
was very cool towards him, unaffectionate and sexually inhibited. W began to shop frequently, often spending enormous amounts of money on luxury items, despite the fact
that she and H were not well off. Whilst out shopping last week, W saw H emerging from
a restaurant with his arm around X, his secretary. H had been working late recently, and
W accused him of an adulterous affair with his secretary. H was furious at this, denied
any impropriety and slapped W across the face.
Advise W, who wishes to obtain a divorce.
How to Read this Question
Answers should consider whether W would be able to petition for divorce and if so which
fact she would be most likely to use. The question is fairly open – it just asks you to advise
W and therefore it would be appropriate to make a brief mention of the consequences of
divorce. This must, however, necessarily be brief as there is little information about the
resources and needs of the couple.
Applying the Law
A couple have to be married for at
least a year before divorce is available
(Matrimonial Causes Act 1973 s 3(1))
H and W have only been married for six months
The petitioner has to show
one of the five facts in the
MCA 1973 s 1(2)
The ground for divorce is that
the marriage has broken down
irretrievably (Matrimonial
Causes Act 1973 s 1(1))
Adultery
(MCA 1973 s 1(2)(a))
Behaviour the petitioner can
not reasonably be expected
to live with (MCA 1973 s 1(2)(b))
Adultery:
Sapsford v Sapsford
Intolerability
What is H’s behaviour?
Relevance of
W’s behaviour
2
Q&A Family Law
ANSWER
In order for W to petition for divorce under the present law, the marriage between her
and H must have lasted for at least one year. The Matrimonial Causes Act (MCA) 1973 s 3(1)
imposes an absolute bar on the presenting of petitions for divorce within one year of marriage, regardless of the hardship or injustice to the petitioner, therefore W cannot petition
for divorce until the expiry of one year from the date of the marriage, although incidents
within that period may be relied on to support the petition: MCA 1973 s 3(2).1
After the expiry of one year from the date of the marriage, W can then petition for divorce
on the grounds that the marriage has broken down irretrievably: MCA 1973 s 1(1). This
concept of irretrievable breakdown must be established by proving one of the five facts in
the MCA s 1(2): Richards v Richards (1972). In this case, proof of one of the five facts would
give rise to the presumption that the marriage had broken down irretrievably and it
seems unlikely that the couple could be reconciled.
The first possible fact that W could rely on is that of adultery and intolerability in the MCA
s 1(2)(a). As the petitioner, W would need to establish that H has committed adultery and
that she finds it intolerable to live with him. Adultery may be defined as voluntary sexual
intercourse between persons of the opposite sex, at least one of whom is married to
another. W will need to establish that H had sexual intercourse with his secretary; sexual
behaviour that does not amount to intercourse is insufficient to establish adultery (Sapsford v Sapsford (1954)). H clearly denies that there has been intercourse and therefore W is
faced with the difficulties of proving that intercourse took place. Circumstantial evidence
of inclination and opportunity may be used: Farnham v Farnham (1925). It seems unlikely
that H had the opportunity to indulge in intercourse in the restaurant, even if he did have
the inclination. Likewise, the recent excuse of working late is very flimsy evidence, since W
does not even know whether the secretary was present or not. Adultery is a serious accusation to make, and the courts have always insisted on strong evidence to support such a
weighty accusation: Serio v Serio (1983). W may therefore experience difficulty in establishing that H had voluntary intercourse with his secretary. If intercourse can be established, W must then show that she finds it intolerable to live with H. The test is subjective
and the intolerability does not have to be caused by the adultery: Cleary v Cleary (1974).
Thus W could rely on H’s sexual practices and his response to her accusation as supporting her claim of intolerability.
The facts do not disclose whether W has ceased to live with H, or whether they are still
living together. Periods of cohabitation that total six months or less may be ignored when
a petition is presented on the basis of adultery: MCA 1973 s 2(1). However, if W continues
to live with H for a period in excess of six months from the last act of adultery complained
of, the petition will fail.
1 In a divorce question remember to check whether the couple can actually divorce. Here, they have only
been married six months so would have to wait. Even though divorce is not immediately available, the
facts that could be relied on after the year should still be discussed.
Bonus Question 1
3
Another option open to W is to petition relying on the fact in s 1(2)(b) that the respondent
has behaved in such a way that the petitioner cannot reasonably be expected to live with
him. In this case, H has insisted on sexual practices that W finds embarrassing and
degrading. There is no detailed evidence as to what these practices are, and there seems
to be a conflict in evidence between W who objects to the practices and H who feels that
W is sexually inhibited, given her sheltered upbringing. Behaviour must be some action or
conduct by one spouse that affects the other and is referable to the marriage (Katz v Katz
(1972)), and it may be that if H’s actions are really perverted, then this will constitute
behaviour such that W cannot reasonably be expected to live with him. However, W could
also argue that H’s lack of understanding, his taunts and his forcing her to do something
she finds repugnant constitute behaviour.2
It would also be possible for W to include in her petition the violent response of H, but H
would probably argue that this was a one-off incident after extreme provocation, and so
should be excluded. H’s relationship with his secretary, if not adulterous, could also be
used by W to support her petition if it was more than merely platonic, or if H were flaunting this friendship to try to force W to be more sexually accommodating, since such relationships can be very destructive: Wachtel v Wachtel (1973). Cumulative incidents can be
included in a petition even if each individual incident would be insufficient, since their
total effect can be examined: Livingstone-Stallard v Livingstone-Stallard (1974). It would
then be necessary to look at the character of the petitioner and respondent (Ash v Ash
(1972)), and ask if it would be reasonable to expect these individuals to live together. This
approach combines a subjective and objective approach: Livingstone-Stallard v Livingstone-Stallard (1974). Whether it is reasonable to expect W to live with H, given their
totally different characters and attitudes to sex, is arguable. Cohabitation is not a bar to
petitions based on behaviour (MCA s 2(3)), but it is important for W to remember that the
longer she lives with H, the weaker her argument that it is unreasonable for her to have
to do so becomes. It is highly likely that H would defend a petition based on behaviour,
and W should be advised of the possibility that H will cross-petition based on her
behaviour. H may well cite her unaffectionate nature, but since this is a state of affairs
rather than deliberate behaviour (Pheasant v Pheasant (1972)), he will need more to
support his petition. A complete and deliberate refusal to have any kind of sexual intercourse might well be behaviour, but her unsatisfactory sexual performance would not be
(Dowden v Dowden (1977)). In addition, H might want to cite W’s financial irresponsibility
in spending large sums of money on luxury items which the family finances could not
afford. Such behaviour might well, if very extreme, result in it being unreasonable to
expect H to live with W (Carter-Fea v Carter-Fea (1987)), especially if H was financially
prudent, yet faced debt and financial ruin because of W’s habit.3
2 The question under s 1(2)(b) is whether this particular petitioner can reasonably be expected to live with
the behaviour of the respondent, It is therefore important to examine the petitioner’s own behaviour as a
less than innocent petitioner might be expected to put up with a less than innocent spouse.
3 Note how the answer considers the effect of continued cohabitation on a petition using the adultery fact
and a petition using the behaviour fact.