level 6 unit 20 practice of family law ... unit 20 family practice...page 1 of 17 level 6 – unit...

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LEVEL 6 – UNIT 20 – PRACTICE OF FAMILY LAW SUGGESTED ANSWERS – JUNE 2013

Note to Candidates and Tutors:

The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2013 examinations. The suggested answers set out a response that a

good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in

their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers.

Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on

student performance in the examination.

Question 1

(a) Mr Irving cannot rely on fact (a) adultery as he has done in his petition. This is

because he and his wife reconciled for more than 6 months after he discovered the adultery and this is an absolute bar to a divorce proceeding on the basis of

adultery. We know that the adultery was not ongoing, as Mr Irving tells us that his wife broke off the affair as soon as he discovered it and that her behaviour

since then had been blameless. Therefore, there appear to be no other instances of behaviour by his wife to

enable him to rely on fact (b). The facts of the case do not point to fact (c), desertion as the Respondent cannot be in desertion and Mr Irving left due to his

wife’s adultery. In any event given his wish to proceed amicably for the sake of the children, the best fact for him to rely on is the no-fault fact of separation. The client tells us that his wife will not contemplate a divorce, so we cannot use fact

(d) of two years’ separation with her consent. Therefore the most suitable fact for us to use is fact (e) 5 years’ separation.

There is a statutory defence to fact (e) which arises under section 5 of the Matrimonial Causes Act (MCA) 1973. Mrs Irving would need to prove to the court

that the divorce would cause her grave financial or other hardship and that it would in all of the circumstances be wrong to dissolve the marriage. The hardship

must result from the divorce, not the breakdown of the marriage and the hardship must be grave.

We are aware from Mr Irving’s Attendance note (Document 2 in the Case Study Materials) that his wife works part-time as a supply teacher and that he is paying

her voluntary spousal maintenance. He has furthermore offered to transfer the former matrimonial home to her outright upon divorce. He will also have to pay

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child maintenance to Mrs Irving in respect of the parties’ two children. On the

facts that we have it thus seems highly unlikely that Mrs Irving can succeed in convincing the court that she will suffer grave financial hardship.

To establish “other” hardship is very unusual and case-law suggests that Mrs Irving would need to cite religious reasons which are not available to her on the

facts of the case.

(Section 10(2) MCA is not directly relevant here as it does not act as a defence to the divorce, it merely delays it).

(b)

The petition needs amending as follows:- Page 1: Mr Irving has a middle name so it should say Paul Michael Irving, not just

Paul Irving.

Page 2, Part 1: Both parties have middle names so it should read Paul Michael Irving and Emma Samantha Irving.

Page 2, Part 2: The place of marriage is not taken verbatim from the marriage certificate. It should read:-St. Mary’s Church in the Parish of Clayton in the County

of Barnardshire. Page 3, Part 3: It is the wrong jurisdiction, it should read that the Petitioner and

Respondent are both habitually resident in England and Wales.

Page 4, Part 4: The boxes relating to “This is an application based on five years’ separation” and “no agreement has been made or is proposed to be made” (or on the basis of the voluntary agreement “an agreement has been made or is

proposed to be made”) should both have been ticked as five years’ separation is the best fact to rely on.

Page 4, Part 5: The five years’ separation box should be ticked.

Page 5, Part 6: The statement of case should read “My wife and I separated on 10th June 2008 when I moved out of the former matrimonial home. We have been

separated for a continuous period of five years with no attempts at reconciliation.”

Page 5, Part 6: We need to check Mr Irving’s son’s name, is he Alexander or Xander as Mr Irving refers to both names in the Attendance note. We also need to tick that a statement of arrangements for the children is attached as they are

children of the family who are of an age where the court will require one.

Page 7, Part 9: The Service details need inserting as follows:- Box 1: Name of solicitor: Graham Hughes.

Name of firm: Kempstons LLP. Address to which all documents should be sent for service: The Manor

House, Bedford MK42 7AB. Telephone number (01234) 622964, Fax number (01234) 622965, DX number Bedford 3721. Your ref: GH/LR/I103.

Box 2: As above. Box 3: 2 Juniper Avenue, Clayton, Barnardshire, BH8 5TP.

Box 4: We should tick that there is no Co-Respondent.

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Page 8, Part 10: The Prayer should be completed as follows:-

Box 2: there is likely to be no claim for costs as this will proceed on the basis of a no-fault fact.

Box 3: To ensure that Mr Irving can apply for any financial orders necessary we need to tick box 3(a) and all of the subsequent boxes and although it is likely that child maintenance will be resolved via the CSA we should tick

box (b) and all of the subsequent boxes too. This action will also protect against the remarriage trap although this seems unlikely to be a factor on

the facts which we have. Question 2

(a)

We know that the Decree Nisi of divorce has been pronounced by the court. We can apply for the final stage of the divorce Decree Absolute, six weeks and one

day after the Decree Nisi pronouncement date. In order to apply we will simply need to lodge the application for Decree Absolute form and fee at court. Should

Naomi not apply then three months after the six weeks and one day period has passed, her husband Aaron can apply. The court would serve Naomi with any Decree Absolute application lodged by Aaron and list the matter for a hearing and

she would be given the opportunity to raise any objections to Aaron’s application.

As Naomi’s faith is Jewish she would need to obtain a “Get” in order for her divorce to be recognised at Jewish law as under Jewish law an individual cannot be married or divorced against his or her will. Aaron would therefore need to go

before a Beth Din court for divorce and deliver this to Naomi who would be obliged to accept it.

Section 10A of the MCA applies where the parties have been married according to particular religious usages and provides that the court may on application by

either party order that the Decree Nisi should not be made Absolute, until both parties have produced a declaration to the court confirming that they have taken

the necessary steps to dissolve their marriage in compliance with the relevant religious usages. Naomi could if necessary rely on this to pressurise Aaron into

providing her with the Get if he decides that he wants the Decree Absolute pronounced.

(b)

Under section 25 of the MCA the court must consider all of the circumstances of the case with the first consideration being given to the welfare of any minor children. The parties have two children, Tabitha (15) and Jacob (13) and they live

with their mother at the former matrimonial home.

Section 25(2) lists the following eight factors to be considered by the court when dealing with ancillary relief for a spouse:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable

future, including in the case of earning capacity any increase in that capacity which it would be in the opinion of the court reasonable to expect a party to the marriage to take steps to acquire. The realisable assets are as follows:-

FMH £375,000

Less mortgage £125,000 Net equity=£ 250,000

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Joint life assurance policies £30,000

Joint value of parties’ shares £150,000 Joint value of parties’ ISA savings £55,000

Total £485,000.00 The unrealisable assets consist of Aaron’s pension which has a CETV of £85,000

and Naomi’s pension which has a CETV of £70,000. Total £155,000.

Naomi works full-time and earns £30,000 net per annum. Aaron earns £35,000 net per annum. There is little disparity between the parties’ incomes and the children are already of an age where Naomi is able to work full-time. It is unlikely

that the court would consider that spousal maintenance was necessary.

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future. Each of them needs a house which must be a minimum of a 3 bedroom property to accommodate the

children. Naomi’s need will be greater than Aaron’s as the children will live with her full-time once the parties have separated. However Aaron will presumably

exercise regular staying contact to them. They both have earned income so should both be eligible for mortgage funding to assist with meeting their housing needs. Their mortgage capacity will be similar although Naomi will have income needs for

herself and the children whilst Aaron will only have income needs for himself. The CSA will assess the child maintenance due.

(c) the standard of living enjoyed by the family before the breakdown of the marriage. This is likely to have been good. The court will endeavour to

reduce each party’s standard of living after the divorce to an equal degree but this is not always possible where there are children in the equation thus Aaron may

well suffer a greater reduction in his standard of living than Naomi. Aaron is 43 and Naomi is 40. They both have future earning capacity. The length of the marriage is seventeen years so it would be considered a long marriage.

(e) any physical or mental disability of either of the parties to the marriage. Not

applicable.

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family. Naomi has looked after the

children and household and worked full-time and will continue to do so and therefore has an ongoing contribution. Aaron has always been the main wage-

earner. Neither of them has made any additional financial contribution (e.g. through an inheritance). It is likely that the parties’ contributions would be weighed equally by the court.

(g) the conduct of each of the parties, if that conduct is such that it would in the

opinion of the court be inequitable to disregard it. Although Naomi has lodged a behaviour petition we are told that she accepts the behaviour cited is relatively minor thus it would not be sufficient to be considered as “conduct”.

(h) in the case of proceedings for divorce or nullity of marriage any benefit which,

by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. Both parties have pensions but the value of Aaron’s is slightly higher than Naomi’s. Naomi is now back at work full-time so arguably she can

build up her pension contributions at this stage and as the parties are 43 and 40 years of age respectively they still have a number of years to add to their pension

funds.

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White v White (2000) suggests that the court should measure their initial findings

after considering the section 25 factors, against a yardstick of equality. The subsequent “big-money” cases of Miller v Miller; McFarlane v McFarlane

(2006) added the principles of ‘needs, compensation and sharing’. We should therefore check our initial thoughts against the yardstick of equality.

The former matrimonial home is a 4 bedroom detached property. It is therefore larger than Naomi requires for herself and the children. Additionally she has told

us in the Attendance note (Document 3 of the Case Study Materials) that she is desperate to leave the property.

She could re-house herself and the children in a 3 bedroom property which would be cheaper to acquire and run. A deferred trust type arrangement such as a

Mesher would seem pointless here as the former matrimonial home is simply too big for Naomi’s needs and she doesn’t want to remain there.

It seems likely that Aaron will agree to a sale, as that way the equity from the former matrimonial home will be released. If for any reason he does not then we

should apply for an order for sale pursuant to a lump sum order for Naomi which the court is likely to order.

Aaron’s pension is valued at more than Naomi’s. She could pursue a pension sharing order in relation to the difference or a pension attachment order.

However now that she is working full-time again she has an opportunity to build up her pension. She may prefer to set-off the difference in the pensions in order to recover more of the realisable assets in the case to re-house herself and the

children.

As the parties’ income positions are comparable any spousal maintenance order is unlikely, including a nominal maintenance order.

The court should consider whether a clean break is appropriate. This is likely in light of the fact that Naomi is now able to work full-time again given the ages of

the children and the fact that the parties’ respective incomes are similar. There is also sufficient capital to enable a clean break to be made.

(d) the age of each party to the marriage and the duration of the marriage.

Question 3

(a) We should apply for a contact order as it is his exercise of contact that Mr Ovenby

is having difficulties with. He is not contesting the agreement he made with his wife that the children should reside with her. He confirms that he thinks that

Karen is a good mother and that he does not wish to uproot the children. Also, as he works full-time it is unlikely that he would be in a position to look after the children pursuant to a residence order.

Pursuant to section 10(4) Children Act 1989, Mr Ovenby as a parent of the

children is automatically entitled to apply for any section 8 order, he does not require the leave of the court.

(b)

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We would need to advise Mr Ovenby that since April 2011 and the coming into

force of the Family Procedure Rules 2010 it has been a requirement that before the court will issue an application for an order to resolve a children dispute, the

parties to the action must attend a Mediation Information and Assessment Meeting with a mediator or certify why they fulfil the requirements not to attend. In light of Karen’s refusal to talk to Mr Ovenby directly, it is possible that she will refuse to

attend a mediation meeting. Whatever the outcome, Form FM1 must be completed in relation to this process.

As seems likely, if the parties are unable to agree matters at mediation we will need to apply to the court for a contact order. We will need to send the following

to the court:

Form C100 Form FM1 Court fee

There is no suggestion that Karen is harming the children (other than through the

denial of contact) thus a Form C1A is not required. (c)

In deciding whether to grant the contact order the welfare of the children would

be the court’s paramount consideration. The court would also consider the no delay and no order principles before applying the s.1(3) welfare checklist:

- The ascertainable wishes and feelings of the child: It appears that the children do want to see their father, as Mr Ovenby tells us that he has

received numerous texts from the children saying that they want to see him. The children are 12 and 7 respectively. Marcus’ views as a 12 year old will be given more weight by the court. At 7, Vicky is too young for the

court to attach any weight to her views.

- the child’s physical, emotional and educational needs: the court recognises that children should have a relationship with both of their parents. It is clear

from the children’s texts that they are missing their father. - the likely effect on the child of any change in circumstances: the children

are used to having contact with their father and until recently have seen Mr. Ovenby on a regular basis, so the current problems with contact are a

change to the status quo.

- the child’s age sex, background etc: At 12 years of age Marcus is at the

stage where his views will be considered by the court. Vicky at 7 is too young for her views to carry any weight. The Father’s influence could be

important for Marcus once he is a teenager.

- any harm that the child has suffered or is at risk of suffering: the children

have sent their father numerous text messages. They were also upset when they were told by their mother that their father did not want to see them

over Christmas. The current situation is therefore causing emotional harm to the children.

- how capable the parents are of meeting the child’s needs: this is not an issue here. Mr Ovenby has always exercised regular contact with his

children so there is no suggestion that he cannot look after the children and

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he has done so on numerous occasions. We know that he also accepts that

Karen is a good mother so is not questioning her capability.

- the range of powers available to the court: the court could make any section 8 order, although realistically a contact order seems the only appropriate order here given that Mr Ovenby has said that he does not want

to uproot the children, which even a shared residence order would do to a degree.

As Mr Ovenby has had difficulties for about six months now in exercising the contact which had been agreed by the parties when they divorced, it seems likely

that the court will have to make an order to resolve the issue. The court will decide this application in accordance with the welfare principle and so it is highly

likely that the court will feel that Mr Ovenby should be given a direct contact order restoring the contact levels which he enjoyed previously.

Question 4

(a) It is possible for us to send a warning letter to Mr. Underwood but in light of the

severity of the violence and his threat that he wasn’t finished with her, we should advise her that this is not appropriate in these circumstances.

We are aware from what the client had told us in the Attendance note (Document 5 in the Case Study Materials), that the police were called out to the flat on the

night of the most recent incident but that she left the flat before they arrived. We should advise Rita that the police may be willing to assist her in pursuing criminal

charges against Dale e.g. for assault. It is possible that the neighbour that telephoned the police may be willing to give evidence about hearing Dale screaming and shouting at Rita that night.

We can also advise the client of the availability of refuges and of organisations

such as Women’s Aid who as well as accommodating her and Caden temporarily may provide advice and support to her. The Local Authority can assist in rehousing

her longer-term as she will be a priority need. As an alternative to the Family Law Act 1996 provisions, we can advise Rita of the

Protection from Harassment Act 1997 which provides both criminal and civil remedies including injunctions or warnings.

(b)

See attached Form FL401.

In relation to Questions 1 and 2 the use of either the temporary or home address for each of the parties is acceptable on the facts.

level 6 unit 20 practice of family law ... unit 20 family practice...page 1 of 17 level 6 – unit...

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