Family Law - MOD000017: Claudette's Case, Semester 2, 2018/19

This report addresses the family law issues faced by Claudette, who is seeking to end her marriage to Max. It explores the legal options available, including divorce based on irretrievable breakdown, specifically unreasonable behaviour and desertion, citing relevant case law such as Owens v. Owens. The report also examines the financial and property orders the court may make, including maintenance, lump sum orders, property transfers, and pension orders, referencing Mills v. Mills and the application of s.25 MCA 1973. Additionally, it discusses protective orders Claudette could obtain to safeguard herself and her daughters, such as non-molestation and occupation orders, with reference to Regina v. Tara Major. The report analyzes Claudette's financial situation and Max's, considering how the court might apply these factors in determining financial remedies and ensuring the children's welfare.

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Contents
1. What legal options are open to her to bring her marriage to an end?...................................................1
Divorce....................................................................................................................................................2
Irretrievably break down......................................................................................................................2
Unreasonable Behaviour......................................................................................................................3
Owens vs. Owens [2017] EWCA Civil 182.........................................................................................3
Desertion.............................................................................................................................................3
Legal Separation......................................................................................................................................4
Financial remedies or Maintenance.....................................................................................................4
Mills vs. Mills [2018] UKSC 38..............................................................................................................4

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2. What financial and property orders the court may make on divorce and how the various factors in
s.25 MCA 1973 might be applied here........................................................................................................5
Maintenance Orders.................................................................................................................................6
Lump Sum Orders...................................................................................................................................6
Zimina v Zimin [2017] EWCA Civ 1429, [2017] All ER (D) 57 (Oct)...................................................7
Transfers of Property...............................................................................................................................7
Pension Orders........................................................................................................................................7
Financial Support for the Children..........................................................................................................7
Interim Orders.........................................................................................................................................8
Various factors in s.25 MCA 1973 might be applied...................................................................................8
3. What orders she could obtain to protect her from Max and to keep him away from the house and the
criteria which would be considered by the court in the making of those orders...........................................9
Injunction Order....................................................................................................................................10
Non Molestation Orders....................................................................................................................11
Occupation Orders.................................................................................................................................11
Restraining Orders.................................................................................................................................11
Regina v Tara Major [2010] EWCA Crim 3016....................................................................................11
Bibliography:-...........................................................................................................................................12
Primary Source......................................................................................................................................12
Case Laws..........................................................................................................................................12
Legislations.......................................................................................................................................13
Secondary Source..................................................................................................................................13
Books.................................................................................................................................................13
1. What legal options are open to her to bring her marriage to an end?
Claudette came into wedlock with Max in 2006 and they separated in 2017. Claudette and Max
have two daughters, after the separation, Claudette remained with her daughters at the family
home and Max stays on rent about 10 km away from the family home. After the separation,
Claudette came to know that his husband is living with his girlfriend and now Claudette does not

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want the survival of her marriage with Max. For the reason that the Family Law Act 1996
certainly not came into force, the Matrimonial Causes Act 1973 signifies the existing law on
divorce in England and Wales1
Divorce
Claudette has several legal options as she wants to bring her marriage to an end. If the marriage
of any person has broken down irretrievably in that case first legal option is divorce, she can
apply for divorce under the Matrimonial Causes Act 1973 in the Court. According to the
provision of the family act when parties to the marriage feel that there are no scopes of the
retrieval of marriage or continuation of the marriage.
Irretrievably break down
A dispute in the marriage is considered as irretrievably break down if any party to the marriage
make any wrong statement and the other spouse believes that she cannot save the marriage. And
the statement of Max regarding the selling of the family home in front of his daughter clearly
stated that he does not care for Claudette and her daughters. On these grounds she can seek relief
in the court.
She has two most common grounds for divorce in Irretrievable breakdown of the marriage is
Unreasonable behaviour and Desertion as she has been completed the 12 months period of the
marriage and now she is living in the separation. Her husband is living in a different house and
he has an extramarital affair with some other girl these things made Claudette to believe that she
cannot save the marriage and as he came to family home in a drunk condition and asked to sell
the house even after knowing that he has two daughters and Claudette’s earning is not enough to
purchase a new home for her and his daughters2
1 Jonathan Herring, the Present Law on Divorce: Matrimonial Causes Act, Pearson Education (Harlow 2013) 115-
123.
2 Elizabeth van Acker, Marriage and Values in Public Policy: Conflicts in the UK, the US and Australia (Taylor &
Francis, 2017).

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Unreasonable Behaviour
The Behaviour of Max is unreasonable and intolerable as he is living with the other girl and he
came home in the drunken condition in front of his daughters which is very affecting behaviour
for the daughters and Claudette. And she has a threat that he will sell the family house as he
shouted and shattered a vase at her in front of his daughters and said that she must immediately
agree to sell the house. The behaviour of Max is in such a way that she cannot really be
anticipated to live with him.3
Owens vs. Owens [2017] EWCA Civil 182
In this case, the Supreme Court ruled out the definition of “Unreasonable Behaviour” as
behaviour of a spouse in such a way that the other spouse ‘cannot reasonably be expected to live
with the respondent’.4
Desertion
In this ground of divorce, spouse deserted the other spouse without the consent for a continuous
period of at least two years. She can also claim for divorce on this ground. The desertion ground
of divorce is practically never used as it involves the psychological intention to separation during
the 2 year of a period which is very challenging to demonstrate.5
Legal Separation
3 Liz Barclay, UK Law and Your Rights for Dummies (John Wiley & Sons, 2011).
4 Owens vs. Owens [2017] EWCA Civil 182
5 Rachael Stretch, Q&A Family Law (Routledge, 2015).

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She has another legal option of a Legal separation. Difference between the legal separation and
the separation in which Claudette and her husband are living are the settlement in the legal
separation she can file settlement in a court and the judgment or order will be issued by the court
declaring that they are living separate and apart from each other. The benefit of the legal
separation is that legal separation resolves the issue of the marriage without getting a divorce.
She can resolve the custody issue of her daughters and visiting issue which she is suffering from,
in that case, the visiting time will be fixed by the court and max cannot come out of the visiting
time if he will do this, it comes under the breach of the order of the court and he will be
penalized for this breach6
Financial remedies or Maintenance
Claudette is working as a part-time receptionist and her total earning is £12,000 gross per annum
and gets a further £9,000 yearly in government welfares and duty credits. Max is an IT
consultant and his remunerations are around £60,000 yearly. In that case, she can seek financial
support or maintenance in the court from her husband as the daughters are living with her and
her earing is not enough for the better survival of her and her children.
Mills vs. Mills [2018] UKSC 38
In this recent case, The Supreme court awarded the maintenance payment as per the actual
requirement of the wife and which is also reasonable for the husband. In this case, the Supreme
Court judge’s concerned was the level of maintenance payments. The Husband was ordered to
pay the lump sum to his wife for her accommodation charges and subsequently prearranged
periodical expenses.7
In the United Kingdom, the divorce rate had increased melodramatically since 1971 and to
6 Brette Mc Whorter Sember, the Complete Divorce Handbook: A Practical Guide Sterling (Publishing Company,
Inc., 2009).
7 Mills vs. Mills [2018] UKSC 38

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release compression on the judges, the special procedure was announced. It delivers an
immediate, reasonable, basically governmental practise. It does not permit indication to be
verified for the reason that indication is specified by way of affirmation and the parties do not
generally appear in the court. Claudette can follow this special procedure for the claim of her
legal right.
2. What financial and property orders the court may make on divorce and
how the various factors in s.25 MCA 1973 might be applied here.
In the course of the Divorce Proceedings, the Court has the power to make different- different
Orders for the matrimonial finance support to the victim Spouse. At the time of the divorce
proceedings, spouse has the power to ask for the ancillary relief which is known as financial
orders. Part II of the Matrimonial Causes Act 1973 governs these financial orders on the request
of the parties to the divorce proceedings. Cases related to the family issues are generally heard
by the district judge of the Family Court but the judges of the family court has the power to
transfer these cases to the High Court. The spouse who seeks for relief in the court at the time of
the divorce proceedings is known as Applicant and the party or a spouse to whom the relief or
financial support is claimed by the applicant is known as Respondent.8
The court has the power to pass property adjustment orders under Section 23, 24 of the
Matrimonial Causes Act 1973 at the time of the passing any decree of divorce, judicial
separation or annulment.9
These are the various financial and property orders which can be made by the Court during the
divorce proceeding or after the divorce proceedings.
Maintenance Orders
8 Laura Bennett, The relevance of conduct in divorce (Blake Morgan 2015).
9 (Matrimonial Causes Act, 1973) s. 23- 24.

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Under Section 23 (1) (a) of the Matrimonial Causes Act, 1973 the Court has the power to
command any maintenance order which can be divided into two types, one is maintenance for
the child and another one is maintenance for the spouse. Generally, maintenance order is the
relief which was sought by anyone spouse who is not in the condition to survive in a good
condition. Maintenance is the periodical payment which is given by the one spouse to another
spouse on a systematic basis. There is no fixed time for the continuation of the maintenance
period as it depends on the circumstances of the case it can be for a certain period or it can be
continued till the death of the spouse.
At the time of the evaluation of the amount of maintenance, the court may consider certain points
like as the financial condition of both spouse and requirements or needs of the spouse or child.10
Lump Sum Orders
At the time of the passing, any financial settlement order Court can pass the order under Section
23(1) (c) of the Matrimonial Causes Act, 1973 for the lump sum order in which one party to the
divorce proceeding required to pay certain lump sum amount to the other spouse. In the lump
sum order, the amount of the lump sum payment depends on the circumstances of the parties to
the divorce and the assets presented in the case before the court. At the time of the evaluation
amount of the lump sum payment, it is not important that there must be any transfer of property
or pension it can be made as an “offsetting”. Lump sum orders may be passed by the court at the
time of the order of maintenance or court can pass any separate order for the lump sum payment
to the spouse on the request of the parties to the divorce.
Zimina v Zimin [2017] EWCA Civ 1429, [2017] All ER (D) 57 (Oct)
In this case, Court ordered the husband to pay a lump sum amount to the wife for the welfare of
the wife and the children.11
Claudette can claim for lump sum amount for the welfare of her daughter.
10 Karen Tesheira, Commonwealth Caribbean Family Law: husband, wife and cohabitant (Routledge, 2016).
11 Zimina v Zimin [2017] EWCA Civ 1429, [2017] All ER (D) 57 (Oct)

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Transfers of Property
Transfer of Property is another kind of financial and property orders. The Court has the power to
order any spouse to transfer any property to the other spouse as a relief of the divorce. It is the
discretion of the court that the Court can pass any order related to the direct transfer of the
property or court may pass only interest of the property to the other spouse. The property related
to the transfer order is made in respect of the properties which are directly connected to the
spouse. It can be a family home or other company or property.
Pension Orders
If there are no other options at the part of the spouse and for the welfare of both spouse Court
may pass any order under Section 24(B) of the Matrimonial Causes Act, 1973 related to the
transfer of the pension of one spouse to another spouse. It can be full payment of the pension or
it can be a part of the pension of the spouse, the court will pass this type of order after
considering the welfare of both Spouse and the Childs.12
Financial Support for the Children
The Court may pass any order related to the financial support for the children under Matrimonial
Causes Act, 1973. Generally, there are specific act Children Support Act, 1991 for the support of
the welfare of the children but this act does not apply to the Children of a married couple
therefore related to the case of divorce Court has limited power under Matrimonial Causes Act,
1973.
Interim Orders
12 Ruth Lamont, Family Law (Oxford University Press, 2018) 120-124.

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The court has the power to make some interim orders for the benefit or welfare of the spouse and
the children such as court can pass an order for the interim maintenance which means during the
preceding of the divorce one spouse will pay a certain amount to another spouse. It may also
include the fees of the proceeding or other expense.
Various factors in s.25 MCA 1973 might be applied
Under Section 25 of the Matrimonial Causes Act, 1973 stated the factors which the court will
consider before ordering for any claim for a financial remedy for the parties to the divorce.
According to the provision of section 25 most essential factors are:
The Welfare of the Child: under section 25(2) of MCA, 1973, the first concern of the Court is the
well-being of the Child of the parties to the divorce. In the case of Radmacher V Granatino
(2010) UKSC 42, the Court specifies that the factor regarding the consideration factor for the
order of a financial or ancillary relief.13
In the case of Claudette and Max, the children of the spouse are living with the wife (Claudette)
this factor of section 25 of MCA 1973 will work in the favour of Claudette.
Financial income or other resources of the Spouse: the order for the financial settlement at the
time of the divorce, court will consider all resources of finance of the spouse which includes
their salary, grossing capacity and other properties. In the case of: Prest v Petrodel Resources
Ltd [2013] UKSC 34, court considered the beliefs and reasonable registered remedies in the
perspective of family law14.
In the case of Claudette, the financial condition of Max is better than his wife and the wife has no
proper resource of finance and the husband is trying to sell the family home, the Court can pass
any order related to the family home in favour of the wife.
The conduct of the parties to divorce: at the time of considering the conduct of parties or spouse
who is seeking for the claim under this section, the all-time nature of conduct will be taken into
account whether it is followed by a spouse during the period of marriage when parties were
13 Radmacher V Granatino (2010) UKSC 42
14 Prest v Petrodel Resources Ltd [2013] UKSC 34

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living together or in separation. For this section, the conduct must be in such a manner that in a
court’s opinion it will be prejudiced if the court will disregard it.
In the case of Max and Claudette, the behaviour or conduct of the Max is intolerable as he living
with another girl and shout in front of her daughter in a drunken condition.
As per section 25(2) (b) of the MCA, 1973, the financial needs, requirement and responsibilities
and the accountabilities of the spouse will be relevant point at the time of the financial statement
during divorce proceedings. The Court will consider all financial needs of the spouse which are
the relevant like food, school expenses of children, home and other related factors.
Disclosure of the financial resources before the court is very important for any fair judgment. In
the case of Gohil v Gohil [2015] UKSC 61, the court stated that Misrepresentation, substantial
non-disclosure and deceit will not be endured by the Courts and may consequence the failure of
justice15.
So that, it is important for the Claudette that she must disclose all her financial resources to the
court.
3. What orders she could obtain to protect her from Max and to keep him
away from the house and the criteria which would be considered by the
court in the making of those orders.
Under Part III of Matrimonial Causes Act, 1973, Claudette can get hold of protection from Max
and can keep him away from the family home. If any party to the divorce abuse another spouse
within a marriage relationship in that case victim spouse has a right to file criminal proceedings
but if victim spouse does not want to file a criminal proceeding, in that case, they can file civil
proceedings and can get an injunction from the Civil Courts or Family Courts.
Injunction Order
15 Gohil v Gohil [2015] UKSC 61

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An Injunction is a relief order given by the court to the victim spouse. An Injunction is a stay
away order which precludes the abuser wrongdoer or wrongdoer from contacting the victim
spouse or court can also compel the abuser to leave the home if there is another stay option
available to the spouse and it is important for the protection of the victim spouse.
If any party to the divorce is suffering from any abuse from the other spouse he/ she can claim
injunction order in the court against the abuser. And it is important that victim spouse must apply
for the injunction order as soon as possible she gets to know about the abuse. Because it helps in
getting or collecting the evidence against the abuser like as if any abuser physically hurt the other
spouse in that case doctor can collect shreds of evidences very easily. Or if the abuse is done by
the abuser in the presence of any person, neighbour or another relative, in that case, these people
can help in giving evidence.16
In the case of Max and Claudette, Max smashed a vase on her wife in the presence of his
daughters or after this incident the same incident occurs after a week again Max tried to enter in
the house when Claudette was not allowed him max smashed the window. In that case, she can
claim for injunction order in the court against Max and can protect herself and her daughters
from the Max and also she can keep him away from the family home.
Under Section 16(2) Domestic Proceedings and Magistrates’ Court Act, 1978, the court has the
power to issue any order regarding the violence.17
These are the types of injunction order in case of any violence from one spouse against another.
Non Molestation Orders
If court pass non- molestation order in that case abuser spouse cannot harass or intimidate any
spouse or children. If spouse breach this order criminal liability will arise against him/her.
Occupation Orders
In the occupational orders, the court can decide the right to stay in the home or the court may
pass this order for the abuser and can give him a direction to make the distance from the home.18
16 Michael Gouriet, Injunctions in Matrimonial Matters (Lexis®PSL Family, 2014).
17 (Domestic Proceedings and Magistrates’ Court Act, 1978) sec16(2)
18 Sonia Harris-Short, et al, Family Law: Text, Cases, and Materials (Oxford University Press, 2015) 295-312.

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Restraining Orders
The court has the power to order the restraining orders which are known as Orders of Protection.
In which Court create a boundary around the victim spouse, the abuser not allowed to do any
unethical behaviour. In case any divorce proceeding is pending in the court and there is any
threat to a spouse or children from another spouse in that case the victim spouse can claim the
restraining order from the court.
The Restraining order is the limited orders of the court in which court certainly provide the
limited time for the continuation of the restraining order. If any person breaches any order of
court either injunction or restraining he/ she will be liable for the punishment in the court. A
Court can take legal action against him/ her.
Regina v Tara Major [2010] EWCA Crim 3016
Restraining orders are the order of civil behaviour orders and for proving this civil behaviour,
standard is also required civil one. There must be satisfactory evidences for the order of
restraining order.
Claudette can expose the behaviour of Max with satisfactory evidence for the restraining order.
In the case of Max and Claudette, Max is abusing her wife by going to the home and smashing
things. He visited the home in a drunken condition which has a bad impact on the daughters also.
In that case, the court can pass restraining order against max and can give him order or direction
for staying away from the family home.19
19 Deborah Lockton and Richard Ward, Domestic Violence (Routledge, 2016).

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Bibliography:-
Primary Source
Case Laws
Gohil v Gohil [2015] UKSC 61
Mills vs. Mills [2018] UKSC 38
Owens vs. Owens [2017] EWCA Civil 182
Prest v Petrodel Resources Ltd [2013] UKSC 34
Radmacher V Granatino (2010) UKSC 42
Zimina v Zimin [2017] EWCA Civ 1429, [2017] All ER (D) 57 (Oct)
Legislations
Domestic Proceedings and Magistrates’ Court Act, 1978, sec16 (2)
Matrimonial Causes Act, 1973, sec 23- 24.

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Secondary Source
Books
Acker, E. Marriage and Values in Public Policy: Conflicts in the UK, the US and Australia
(Taylor & Francis, 2017).
Barclay, L UK Law and Your Rights for Dummies (John Wiley & Sons, 2011).
Bennett, L. The relevance of conduct in divorce (Blake Morgan 2015).
Brette Mc Whorter Sember, the Complete Divorce Handbook: A Practical Guide Sterling (Publishing
Company, Inc., 2009).
Gouriet, M. Injunctions in Matrimonial Matters (Lexis®PSL Family, 2014).
Harris-Short, S., Miles, J.and George, R., Family Law: Text, Cases, and Materials (Oxford
University Press, 2015) 295-312.
Herring, J. the Present Law on Divorce: Matrimonial Causes Act, Pearson Education (Harlow
2013) 115-123.
Lamont, R. Family Law (Oxford University Press, 2018) 120-124
Lockton, D. and Ward, R. Domestic Violence (Routledge, 2016).
Stretch, R. Q&A Family Law (Routledge, 2015).

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Tesheira, K. Commonwealth Caribbean Family Law: husband, wife and cohabitant (Routledge,
2016).