Introduction
There exists dissimilarity between valid, voidable and void marriages under English Act. A valid marriage would be terminated legally. In case of nullity of marriage, for legal purposes, it would be construed that there has been never a valid marriage.
There will be existence of no defect in a valid marriage and hence, it is binding on the parties concerned. Thus, a valid marriage can come to a termination only due to by a decree of divorce or by death of any one party. A void marriage is void ab initio and it is no marriage at all under legal perspective. Any one party can obtain a decree of nullity at any time either after the death of any one spouse or during the life time of the spouses. A voidable marriage is itself a valid marriage until and unless it is cancelled by the court. In UK, the registration of any marriage just confirms and records the solemnisation and does not guarantee of its validity. (Short & Miles 2007:117)
Analysis
The likely order that the Court would make on an ancillary relief application
In UK and Scotland, a court can order a divorce if there is irreversible collapse of the marriage and in this case, the marriage has broke down due to adultery. The 1971 Divorce Reform Act permitted that a court can award a divorce on the footage of adultery. Lord Jesus commented about divorce that any man, who divorces his wife for any reason other than her infidelity, commits adultery if he lives with another woman. (Mathew 19:9). (Lovelace & White 2002: 43).
Mrs Constance Blaine was upset that Jeremy was conducting an affair with Miss Tyler who is expecting a baby in the summer.At the same time, Jeremy persuaded Blaine to change her whole life by giving up her career and to have another baby.. Mrs Blaine does not regret these decisions, but they were both based on the premise that they would preserve and improve the marriage. In fact, Blaine cannot think of worse behaviour. Blaine presumption that this is something the court would consider it and take account of it and reflect this by awarding her a lager share of assets.
It is to be observed that divorce cases fall under the discretionary nature of family law, in such cases, neither the first instances nor the appellate verdicts can be mechanically made as precedents having into account future cases. The courts have discretion to reach out verdicts which are sensitive to the unique aspects of each family.
Lord Hoffman in Piglowska v Piglowski ([1999] 1 WLR 1360, 1372 -3 (HL))observed that while granting ‘ancillary relief’ , the court may take into considerations of both financial and property remedies like transfers of matrimonial home and periodical payments which are available on divorce under the provisions of the “ Matrimonial Causes Act ,1973. “ It is to be observed that this Act confers the courts a wide powers to grant whatever relief they deem fair in the background of the each case, having attention to have a ‘check lists’ of elements listed out in s 25 of the Act. (Short & Miles 2007:6)
In Rampal v Rampal [2000], H and W got married in 1975 and divorced in 1999 as H had been married at an earlier date in India. W preyed for order for preventing H from claiming ancillary relief by applying to set aside the divorce already granted. Court held that a bigamous marriage was void ab initio and allowed W’s application in part. It is the discretion of the court to debar H from claiming ancillary relief on looking into the circumstances of the case. (Curzon 2001: 10).
What offer of settlement, if any, should be made to Mr Blaine at this time?
The Children Act 1989 strives to shore up parents to concur about the child’s welfare in the case of divorce or separation by offering for the parental care on continuing basis and the courts may be approached to desist from awarding orders unless they are advantageous in the child’s welfare. Thus, Jeremy and Mrs Blaine may use the mediation or conciliation process to arrive at a settlement as regards to education of their children. Mr Jeremy may be asked to bear the children’s education expenses up to their college level instead of secondary education level as proposed by him.
As regards to the proposal by Jeremy’s solicitor as regards to the maintenance in favour of Mrs Blaine will be terminated when Lucy is 6, giving Mrs Blaine 5 years if she wishes to re-train but with a view to her being financially independent of our client for her own maintenance at this stage, In Miller v Miller ([2006] UKHL 24) and in McFarlane v McFarlane ([2006] 2 AC 618) , the court gave paramount consideration to the welfare of children and it is only during the minority of children that their statutory priority applies.
However, the courts do admit the veracity that children progressively remain financially reliant and remain at home long after reaching 18. Thus, the interest of the children often influence decisions about how to house the parties and may also affect on when and whether it is reasonable to anticipate the primary caretaker to undertake paid employment. (Short & Miles 2007:506).
Whenever there are minor children, the courts gave utmost priority to secure accommodation for them and their primary carer. In M v B, in applying s 25 criteria, the court emphasised the need for a home where there are young children are involved. Thus, the primary carer needs a home to accommodate the children and lesser significance is given by the court for a home to other partner.
A home may be retained for the benefit of children by the primary carer during their minority, it may be fitting for the other spouse to preserve a share in its capital under a Mesher order. However, the parties’ respective requirements and finances may signify that their primary carer should preserve the property either on outright basis or on a Mesher basis. One legal study signifies that certain primary carers give more priority on securing immediate housing even if they give up periodical payments and the long-run security offered by a share of other spouses’ pension fund mainly to secure the house. (Short & Miles 2007:507).
As regard to Jeremy’s family property at Cotswolds, Mrs Blaine before their marriage agreed not to make a claim on the cottage if they divorced later. She had even given it in writing and her in-laws are keeping it the same now. Jeremy bought out his brother’s interest in 2000.However, in these circumstances, Mrs Blaine does not see why she should be bound by this agreement now. Mrs Blaine is of the view that the property should be lent out now and rental income should be shared between them equally after deducting any expenses. Though, it is a family property and Jeremy owns such home in his sole name, in case of divorce, Mrs Blaine is entitled to a share in such property.
The court may not consider the agreement which Mrs Blaine entered with the Jeremy before marriage treating it as thought it has been obtained under duress and not with free consent of the parties. Mrs Blaine should initiate steps through her solicitor to register her rights at the Land Registry to secure her rights over the Jeremy’s family property.
What view Counsel has of the outline proposals contained in Bourne & Matthews’ letter; and Mrs Blaine was in doubt whether she can have a share of Mr.Jeremy’s pension. As regards to pension, Bourne & Mathews proposes that each party should retain their own pension provision. A divorce court has the authority to share pensions by directing some portion or percentage of the accrued in pension scheme to be transferred into a new pension scheme for Mrs. Blaine. This is called as “Pension sharing order.” Since, Mr.Blaine has a CETV of £400,000 in his pension amount, I advise Mrs Blaine to claim some percentage on pension for the future and welfare of three children.
What response should be made to them (we have sent a holding reply)
Earlier litigation have demonstrated even the famous law firms found their clients notoriously short memories and disposed to take early settlement money and then later felt for having accepted such lesser amount as what happened in Edgar v Edgar ([1980] I WLR 1410). In this case, solicitors of Edgar advised their client not to consent to unfavourable separation agreement since it would prejudice any application to the court later. However, Edgar turned down their advice and later found that she was given a paltry amount. In this case, court was very generous and would have awarded higher compensation but due to Edgar’s earlier settlement, court held to abide by that agreement. (Burton 2003: 216). In view of the above, I strongly recommend that Mrs Blaine should not agree for the settlement now.
The new ancillary relief procedure is structured in such a way to adopt the overriding goals of the Woolf reforms and dynamic management of case including alternate dispute resolution into family proceedings together with proportionality of costs to assets and with equality of arms which was not there in the past. Due to Woolf reforms, ancillary relief is now includes
- Disputes are normally solved within a reasonable time ; and
- Administered in an exhaustive structured style.
A fast track scheme of ancillary relief was introduced on national level in U.K with effect from 2 June 2000. The main object for Woolf reform was financial, since ancillary relief cases were not only expensive but also minimise the value of assets available to offer them to the family as witnessed in the case Piglowska case. (Burton 2003: 215).
The couple jointly own a home which is a 5 bedroom, semi-detached house in Highgate. North London. At about beginning of 2008, it was probably worth £1.2 million. Normally, if property is registered at the Land Registry in joint names, in case of disposal of such property during divorce, consent of both the spouses should be obtained by the conveyancing solicitor before any sale of the said property is arranged.
In White v White ([2001] 1 AC 596 , 599.), there was a stress on the significance of needs and rational requirements of the spouse rather than mathematical calculation for the partition of matrimonial assets. In case where the values of assets are more than the needs of both partners, it was frequently the case that the wife would receive less than half of the matrimonial assets.
The Court of Appeal awarded Mrs. White £ 980,000 on a conventional basis which court thought that it was adequate to fulfil her needs approach for housing. However, Court of Appeals later awarded £ 1.7 million on a partnership model rather than on a need basis which was less than fifty percent as the court gave regard to Mr. White’s family contribution in the initial years. Mrs. White appealed against this order demanding that property should be divided on 50:50 basis rather than on a need based basis.
In appeal, House of Lords upheld the verdict made the Court of Appeals. In this relevant case, both Jeremy and Blaine contributed equally for their home in Highgate. Thus, both the spouses have contributed equally for their assets. In such case, during the course of division of assets, no bias should be shown between a child carer and money-earner. It is to be noted that section 25 (2) states that in quantifying ancillary relief for the estranged spouse , there was no predetermined rank of priority and the distribution of assets shall have to be made on the circumstances of each case.
The courts take into considerations the standard of living enjoyed by the parties while interpreting ‘need’ concept. Hence, ‘reasonable requirements ‘or ‘need’ of the rich are more substantial than the needs of the rest. Various needs –associated issues have been explored by various case laws like the financial resources available to cater the needs of the parties, the provision of housing, the sources of these needs and resources of second families. (Short & Miles 2007:506)
Conclusion and Recommendation
Jeremy cannot exert pressure on Mrs. Blaine to agree for a quick divorce and to agree for the financial settlement as suggested by Jeremy’s solicitor. Mrs. Blaine has a strong case. She has been betrayed by Jeremy. Jeremy is having three female children and has a valid legal marriage relationship with Mrs. Blaine. Jeremy is engaged in adultery which is one of the valid grounds for divorce in UK. Jeremy forced Mrs Blaine to leave her job through which she has earned about £ 70,000. At the same time when he is cohabitating with Laurette Tyler. Mrs Blaine is forced to have a third baby immediately after she resigned her job when Jeremy had relations with Tyler. These actions demonstrate a clear betrayal from the Jeremy’s side.
Hence, I suggest the following to Mrs Blaine;
- Mrs Blaine should not accept for any settlement with Mr Jeremy.
- She should try to obtain the possession of Highgate. North London for the benefit of their minor children. It is to be noted that in Miller v Miller ([2006] UKHL 24) and in McFarlane v McFarlane ([2006] 2 AC 618) , the court gave paramount consideration to the welfare of children. In M v B, in applying s 25 criteria, the court emphasised the need for a home where there are young children are involved.
- Mr Jeremy may be asked to bear the children’s education expenses up to their college level instead of secondary education level as proposed by him.
- I advise Mrs Blaine to claim some percentage on pension of Jeremy for the future and welfare of three children. Mrs Blaine is entitled to a share in Jeremy’s family property. Mrs Blaine should initiate steps through her solicitor to register her rights at the Land Registry to secure her rights over the Jeremy’s family property.
- In view of the above, I strongly recommend that Mrs Blaine should not agree for the settlement now. Let Jeremy may file a divorce petition to the court and Mrs. Blaine may contest the same. She is likely to be awarded liberal benefits by the court as what happened in Edgar v Edgar.
List of References
Burton Frances. (2003). Family Law. London: Routledge.
Curzon. (2001) Brief Case on Family Law. London: Routledge Cavendish.
Lovelace Ann & White Joy. (2002) Beliefs, Values and Traditions. London: Heinemann.
Short Sonia Harris & Miles Joanna. (2007). Text, Cases and Materials: Family Law. Oxford: Oxford University Press.