Legal Implications and Strategies in Divorce Proceedings

QUESTION 1

(a) In this situation, the most appropriate step to take would be to apply to the court for an order of deemed service. Because Peter is refusing to acknowledge the service of the papers, this would be the appropriate method to proceed the divorce case further. In the event that one party is known to have received the divorce papers, but they are refusing to send the Acknowledgement of Service form to the court, the other party can make an application for an order of deemed service to the court. The Civil Procedure Rules allow this to be done by the party seeking divorce. An application for deemed service signifies that the party making the application is asking the Court to accept that despite the other party not acknowledging service, they have been served with the petition and therefore be deemed to have received it. This would then allow the client to apply for a Decree Nisi even if Peter does not engage with the process. In order to establish the grounds for deemed service, evidence would have to be provided by Natasha to support the contention that Peter had indeed received the papers and refused to sign them. As per Document C, Peter left the papers on the kitchen table and the children have witnessed this as well. Therefore, the onus will be on the client to establish that Peter has received the papers. Once satisfied, the court may issue deemed service order, whereupon Decree Nisi proceedings can be initiated. For individuals seeking RESIT dissertation help, understanding all the legal procedures and their implications is crucial.

(b) There is a difference in period of time within which application for Decree Absolute can be made with regard to whether the petitioner or respondent is making it. There is also difference in procedure. Natasha as the petitioner can apply for decree absolute after 6 weeks and 1 day of pronouncement of a Decree Nisi; in other words, Natasha can apply for a Decree Absolute 43 days after Decree Nisi is received. However, Peter as a respondent can only apply 18 weeks after the pronouncement of the Decree Nisi. A Decree Absolute does not end the financial obligations to ex-spouse, but open the way to remarriage, so it is not a matter of worry if financial obligations are not determined prior to Decree Nisi.

If Peter is applying, then as the respondent, he would need to swear a Statement of Truth setting out the reasons why he (the Respondent) is applying for the Decree Absolute rather than the petitioner. Peter will have to fill in the decree absolute form known as a notice of application for decree nisi to be made absolute. Unlike applications by petitioner where Decree Absolute is automatically granted on application, in Peter’s case, the Decree Absolute will not be automatically granted and the judge will consider the reasons given by him for making the application instead of Natasha. The likelihood of success of Peter’s application will therefore depend on whether he is able to convince the judge of the reasons for which he is making the application for Decree Absolute. Given that the financial obligations are not as yet determined, the judge may decide to not allow the Decree Absolute so Peter’s success would depend on the grounds he makes out.

(c) A non-molestation order does not provide the same extent of protection that an occupation order provides when there is some abuse or harassment involved. Therefore, instead of making an application for a non-molestation order, Natasha can apply for an occupation order. An occupation order can be applied for under the provisions of 33 and 35 to 38 of the Family Law Act 1996. The occupation order can be made by the court to decide who can continue to occupy the family home. The order can be used to determine one spouse’s removal from the home or a certain area around the home. The advantage of an occupation order is that it can prevent the abusive spouse from being in home or in certain parts of the home. The occupation order goes beyond a non-molestation order in that while the latter is made with the aim to prevent the abuse or harassment of the spouse making the application, it does not restrict the abuser from the home occupation so that he can continue to occupy the same home and expose the other spouse to further risk of abuse.

QUESTION 2

In this situation, the principal issue is whether Natasha can remain living in the matrimonial home despite Peter not agreeing to this arrangement. For this purpose, this answer explains the factors that the court would consider and what orders the court is likely to make to settle the financial issues.

The order that Natasha can apply for and the court may make to settle the question of the matrimonial home is Deferred sale of the property. This is an option in the event that one partner wishes to stay in the property for the sake of the minor children and the other party refuses to consent. In such a case, the court may order that the property should remain in joint names of the two partners until the future sale. Deferred sales are an option where children are minors and the sale can be made contingent on the children reaching a certain age or milestone in their education. In this situation, as per Document D, the client, Natasha has clarified that she wishes to remain in the matrimonial home with the children and the parties have agreed that the children should continue to live with their mother. If the children continue to live in their family home, the divorce may be less traumatic for them. She has also clarified that she can give him a share of the value of the home once the children have left university. The factors that are usually considered by the courts when they are making such financial orders for divorce proceedings are first and foremost related to the welfare of the children. This may mean that the children should be allowed to continue living in the family home if the parent with whom they will live cannot afford to buy elsewhere. In this situation, the court may prefer a deferred sale. The court may also consider whether this is appropriate because the children need to stay within a certain school catchment area. The court can also consider the needs of the parties to the divorce and their financial position prior to making such an order. The court generally looks at the whole circumstances of the case and decides accordingly.

Such financial orders can be made under the Matrimonial Causes Act 1973, under Sections 23 and 24 which empower the court to make finance and property related after the finalisation of the decree of divorce. The Matrimonial Causes Act 1973, Section 25 provides a list of circumstances or factors that the court can consider before deciding what financial orders will be made by it. The court has discretionary powers under the law and can decide what kind of financial order will be made by it. The factors that Section 25 (2) lists down include reference to income of the parties and their earning capacity, as well as property and other financial resources of the parties. The court will also consider the financial needs, obligations and responsibilities of the parties and the standard of living enjoyed by the family before the breakdown of the marriage. The court also considers age, duration of marriage, conduct, contributions to the family welfare to name some of the factors. In the present situation, orders regarding share in pension and spousal maintenance may be made by the court after considering the facts shared by Natasha with regard to her earnings, savings, financial needs, living standards of the family prior to the divorce, and her greater responsibility to be at home for more hours with her minor children after they are back from school. Considering all these factors under Section 25, the court may make a pension sharing order, and maintenance order with reference to these claims by Natasha.

QUESTION 3

(a) Natasha cannot move the children to Canada without Peter’s consent unless she applied to the court for ‘leave to remove’.

(b) Leave to remove application is made under Children Act. If child arrangements order is in force under section 13(4), Children Act then this regulates the arrangements concerning with whom the child is to live and in such a case, the maximum period for which a child can be removed is less than a month as per section 13(2). The factors that the court would consider before allowing an application for a leave to remove include first and foremost the principle of welfare of child being of paramount consideration as set out in section 1(1) of the Children Act. This was also established in the cases of Payne v Payne [2001] EWCA Civ 166 and K v K (Relocation: shared care arrangement) [2011] EWCA Civ 793).

As per the statutory provisions and the case law, the court must be focussed on the best interests of the child and the welfare checklist set out in section 1(3) of the Children Act must be referred to in every case. This was also held in (F (a child) [2012] EWCA Civ 1364. The welfare checklist includes the reference or consideration of the ascertainable wishes and feelings of the child concerned. In this situation, as per Document E, Jack wants to move to Canada because he is uncomfortable going back to school after his mother’s affair with Oscar became public, but Chloe is unwilling to make the move. The court will also consider the physical, emotional and educational needs. Jack’s educational needs at this time are more relevant to the decision that Chloe’s as he will be more impacted by the move since he is preparing for GCSE course. The court will also have consideration to the likely effect of the change of circumstances on the children. The court will consider the age, sex, background and any other relevant characteristics of the children. The court will consider any harm suffered or is at risk of suffering. In this case, as Natasha has noted in Document B, Peter has not been an attentive father as he has not even taken meals with the family for more than a year. If Chloe is left behind in the UK, there is likelihood of emotional harm if her father is not attentive to her. The court will also consider how capable the parents are in meeting their needs. These are the factors that will be considered by the court. Since Jack wants to move and Chloe’s best interests may not be in being left with her father, it is possible that Natasha will be able to be successful in her application to remove the children to Canada.

However, it may be noted that due to the presumption of parental involvement in section 1(2A) and 1(2B) of the Children Act, the impact of a move on the child's relationship with the opposing parent may also be an important factor in determining whether such move be allowed and for this reason, it may not be that easy for Natasha to get the order for removal particularly as the children also live with their father on some days while they continue to live with her. This may pose as a hindrance to success of an application for a leave to remove.

QUESTION 4

The issue here is whether it is possible to change the consent order of November 2021 to either have the order reversed or changed to more favourable terms for Natasha and the children. As a principle, consent order can be changed after an application to change it has been made by one party if there are grounds for justifying such a change to the consent order. These grounds include fraud or misrepresentation, non-disclosure of financial position; lack of capacity for signing original consent order, signing order under duress, or the happening of an unexpected event shortly after the consent order is sealed and which undermines the terms of the consent order.

The last mentioned ground above is relevant to the current situation because Natasha now wishes to challenge the consent order because something has now happened which may make that consent order unfair. A party can ask for the consent order to be set aside where there has been a significant change in the circumstances of one of the parties after agreeing to the consent order which makes the order unfair. In Barder v Barder (1987) 2 FLR 480, where the wife obtained an order transferring the matrimonial home to her as the primary carer but then killed herself and her children, leaving the house to her mother, the husband appealed against the Consent Order. The court held that if the purpose and intention of the original consent order was to provide a home for the wife and the children, and the goal was now frustrated, the consent order can be appealed and changed. In the same case, the House of Lords, laid down the circumstances that must be established for this, which include happening of significant new events that invalidate the fundamental basis upon which the order was made within a year of the consent order being made, without delay; and without prejudice to an innocent third party. The event must also be unexpected at the time of making the consent order, as demonstrated by the Court of Appeal decision in Myerson [2009] EWCA Civ 282, where a drop in shares and stocks value in the 2008 recession did not merit the change to consent order because the event of fall in value of shares rise is expected when such investments are made.

In the current situation, the family home was sold and the proceeds were divided with Natasha using her share to buy a new home for her and the children, and it was expected that Peter would do the same for the children to be able to stay with him from time to time. However, there is not a change in circumstances with Peter moving into his girlfriend’s flat and planning to use his share of the proceeds of sale to travel the world with Kate. This can be claimed by Natasha to be an unexpected event that makes it unfair for her to live in a small house with her children. The application for change of consent order is being made within a year of the order which was made in November 2021, which means that she is within the time frame for making the appeal. The question is whether this would lead to success in her appeal. This may be difficult because the event of Peter having a girlfriend may not be established to be an unexpected event. However, in the same content, the court in Jenkins v Livesey (1985) AC 424 HOL, has allowed change of consent order to make more generous terms for the husband where the wife did not disclose her intention to marry this would have made a significant difference to the consent order when it was made. Similarly, in this case, Natasha may claim that Peter never disclosed an intent to use the money to travel, and if this were known at the time of the making of the consent order, this would have made a significant difference to the order. Therefore, based on this, she may claim a more generous settlement so that she can live in better housing with her children.

QUESTION 5

(a) If Natasha chooses to cohabit with her new partner, she can protect herself from financial claim against her in the event of the breakdown of their relationship by putting in place a cohabitation agreement with her partner. By entering into a cohabitation agreement, the parties can cover details of their financial relationship during relationship and after the breakdown of the relationship. Thus, during the relationship duration, the cohabitation agreement can specify the agreement on sharing of rents, mortgage payments and bolls as well as the post breakdown agreement on how the parties will deal with bank accounts, property and other assets. A cohabitation agreement is legally binding.

(b) If Natasha chooses to marry her new partner, she can protect herself from financial claim against her in the event of the breakdown of their relationship by entering into a prenuptial agreement with her partner prior to the marriage. A prenuptial agreement details the financial agreement between the parties in the event of a future breakdown of the marriage. Unlike cohabitation agreements, prenuptial agreements are not automatically binding under the UK law. However, as per the decision of the Supreme Court in Radmacher v Granatino [2010] UKSC 42, prenuptial agreements can be given effect to if these are freely entered into by each party with a full appreciation of its implications. The general criteria as per the Supreme Court decision for a prenuptial agreement to be enforceable is that it should be a freely entered into agreement (meaning there should be no duress, misrepresentation, undue influence or fraud), where both parties understand the implications of the agreement, and the agreement is fair and contractually valid. The court also requires that parties must have disclosed the wider financial circumstances that they have, and that they must have received legal advice. If there are any children involved, then their interest is also not to be prejudiced by the agreement. Therefore, it can be concluded that Natasha can protect her interests by entering into a prenuptial agreement with her partner and as long as these criteria laid down in Radmacher v Granatino are satisfied, the agreement will be enforceable and continue to protect her interests in the event of breakdown of the marriage.

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