Family Law (Term Paper Sample)

Memorandum
To: Supervisor
From: Trainee
Subject: Stacy Jones Divorce and its Consequences
Date: 02/11/2015
The following memorandum includes an advice for Stacey Jones about ending her marriage to Cameron. By looking into the financial aspects mentioned in the attendance note the financial consequences have been discussed. Furthermore, the impact of pre-nuptial agreement on the financial settlement signed before marriage has been analyzed.
* Advise to Stacey upon ending her marriage
First of all the grounds upon which Stacey should fill a divorce should be over looked in terms of what Stacey can do in relation to ending her marriage with Cameron under the family law of UK. The facts as stated in the attendance note state that Stacey is held responsible by her husband Cameron for committing adultery and hence has ended his relationship with her asking her to leave the matrimonial home. Keeping into mind that there is only one standalone ground upon which the divorce can be filled which is that the marriage itself is irretrievably broken. The person filling the divorce must prove that one of the following five facts has resulted in irretrievably breaking the marriage and that because of this the person can no longer stay together with his or her partner hence needs a divorce. The five respective facts are as follows;[LAWYERS.COM, 'Grounds for Divorce: Irretrievable Breakdown' (lawyers.com e.g. 2005) accessed 01 November 2015]
1 Adultery
2 Unreasonable behavior
3 Desertion
4 2 years separation with consent
5 5 years separation which does not require any consent[Linnitts Solicitors, 'Divorce and Grounds for Divorce' (/ ) accessed 01 November 2015]
As Stacey is caught for having a relationship and is held responsible for committing adultery, she cannot petition for a divorce on the grounds of her own adultery and would need any other from the five reasons mentioned above to prove that her marriage with Cameron has been irretrievably broken. For this the most appropriate reason for her would be to fill a petition for divorce on the basis of unreasonable behavior by Cameron. Coming home late at night drunk and calling Stacey a number of abusive names by Cameron would be considered as harassment and domestic violence. Both of which contribute towards unreasonable behavior. To file for divorce behavior does not need to be brutality or other severe actions. A mixture of some other behavior can be enough for Stacey to file divorce. Many wives use a common explanations about their husband that they working too much (or not working enough), showing too little fondness, collective with a lots of other same factors. But a behavior she wants to rely on must be that of the respondent and not of the spouse who is filing the divorce. In addition to this it should have happened in the six months before she alienated or at any time after she estranged; or in the 6 months prior to the divorce petition (appeal) is filed at court. Harassment happens when a partner receive unwanted behavior from other partner which alarms or distresses her/him. Harassment includes threatening texts, malicious phone calls, damage to property and threatening and abusive language. On the other side Stalking is also a form of harassment and might include behavior such as contacting, following or attempting to contact you, monitoring your internet and email, spying on you and other related behavior. It is a civil and criminal offence for a person to harass or stalk anyone. Here, Stacey being called by abusive names a number of times and emotional stress due to Cameron’s moods would be solid grounds for her to fill her divorce petition on the basis of unreasonable behavior. Whereas, if Cameron would file his divorce petition, he needs to prove that Stacey is involved in sexual intercourse with another person and he finds it difficult to continue living with her. This again would be difficult to prove as the person convicted of committing adultery (co respondent) may not sign the papers of admitting adultery which would result in delays in the proceedings.[Andrea Woelke, 'Divorce in England' (alternativefamilylaw.co.uk 1 August 2014) accessed 01 November 2015] [CPS, 'Stalking and Harassment' (cps.gov.uk ) accessed 01 November 2015] [Linnitts Solicitors, 'Divorce and Grounds for Divorce' (/ ) accessed 01 November 2015]
* Financial consequences of Stacey’s Divorce
Since ladies have attained to more noteworthy balance, nonetheless, the subtle elements of monetary settlements have changed as a result. It created the standard in the case of Martin and Pamela White that marriage is a partnership of equals as at the end of the day that the commitments of the home-creator and the provider are of equivalent worth. The financial aspect of a divorce is currently basically a two-stage process. The main is to part just as the benefits gathered amid the marriage. Prenuptial understandings covering such resources ought to be regarded, the Supreme Court has ruled, the length of they were not made under pressure or without the profit of lawful counsel. However such assertions do not tie the courts. As per Stacey’s case she would be able to collect her share from the jointly owned property during her marriage with Cameron. This includes the former matrimonial home of worth 7 million pounds and the smaller 5 bed room cottage worth of 2.5 million pounds. She has no claim to the assets of her husband before their marriage as they belong to him only. Neither can she claim her husband’s pension as in the light of a previous decided case of H v H (1993) the couple wedded in 1978 and divorced in 1990. At the time of the divorce they had three kids. The spouse was a doctor and the wife was an educator and medical attendant. The couple had joint matrimonial resources of £158,000, the wife had further assets of £162,000 and the spouse had further assets of £242,000. The District judge ordered that the husband pay maintenance to the kids of £2,280 for every year and support to the wife of £5,700 for every year and also capital of £180,000.[White V White [2000] (HOL)] [Raymond Tooth, 'Divorce Expert: The Tracey Wright case boils down to bad legal advice' (telegraph.co.uk 2014) accessed 02 November 2015] [H V H [1993] (DC)]
For this situation the District judge considered the husband’s future family inheritance and the NHS benefits rights. The husband requested and this was permitted. On request the Judge said that it wasn't right to consider the inheritance and NHS annuity rights and ought to just consider the term of the marriage, not the pensions post-separation worth of retirement benefitsThe ruling was further supported by a later case of Burrows v Burrows (1999) in which The couple wedded in 1978, alienated in 1994 and at the time of separation they had two kids. The matrimonial assets surpassed £1,000,000 altogether esteem with the family home worth £400,000, the husband’s interest in an organization worth £275,000 and the husband’s pension fund valued £265,000. The District judge ordered the sale of the family home with £349,000 heading off to the wife with maintenance of £1,200 for every month from the husband's earnings of £3,000 net for every month. There was likewise an earmarking order for 50% of the most extreme probable tax free lump sum from the husband’s pension and a 50% of his annual pension earnings. The husband appealed against the earmarking order and this was permitted by the court against the pension income just, according to the Matrimonial Causes Act 1973 (MCA73) expressing that an even split between the parties was not appropriate.Whereas, upon ending her marriage with Cameron, she would be entitled to some payment in respect of the child support and maintenance from her husband but this would not be forever as in the case of Tracey Wright divorce case in 2008, the ex-wife was told by the judge to get a job after her 75000 pound per annum maintenance claim after 11 years of divorce.[sharingpensions, 'Divorce Case Law' (sharingpensions.com ) accessed 02 November 2015] [Burrows v Burrows [1999] (DC)] [sharingpensions, 'Divorce Case Law' (sharingpensions.com ) accessed 02 November 2015] [MARTIN ROBINSON, 'Divorce ruling 'is a game-changer': Lawyers believe judge's order for multimillionaire's ex-wife to 'get a job' means divorced women will now have to support themselves' (dailymail.co.uk 2015) accessed 02 November 2015]
* Impact of nuptial agreement upon the financial settlement
The laws of recent times do not provide for certainty and clarity in event of marriage dispute and eventual breaking up. Divorces invoke uncertain outcome to the individual financially. The pre-nuptial agreement is signed by both parties, but during divorce both divorcees find that the clause they agreed to be unrealistic. They, therefore, do not accept the agreement and do not want it to be upheld. The challenges are frequent in English courts because the English laws are inconsistence and undefined towards the pre-nuptial agreements. Historically, the laws have been inconsistent; this makes the divorcees engage in cash consuming and emotionally draining court cases. In the event of a divorce, they are no statutory laws on the approach of the judicial system on the pre-nuptial agreement[Francis, N. (2011). Pre-nuptial and Post-nuptial Agreements in the UK (England and Wales). Family Law. Print.]
There are several factors that can invalidate a nuptial agreement. Nuptial agreements are fairly adaptable documents, at least with respect to financial arran...