Tony, aged 40 and Alice, aged 37 have been married for eight years and have two children Sebastian, aged 7 and Davina, aged 6. When Sebastian was born, the couple decided that Tony should give up his job as a salesman to look after him as Alice’s income, as a doctor, was far higher than his. Tony has not worked since then, but when Davina went to school he started studying for a law degree at the local university and he hopes to eventually qualify as a solicitor.
In the past year the marriage has not been as happy as it once was. Tony spends all his spare time studying and Alice has been spending a lot of time with Daisy, a nurse who works with her. Alice has just admitted to Tony that they are having an affair and she wants to set up home with her. She wants the children to go and live with them in Daisy’s house which is in a town 20 miles away. She wants to sell the family home so that she and Daisy can buy a larger property. Tony and Alice’s family home is currently valued at £300,000 and is subject to a mortgage of £65,000. It is in joint names. Alice’s current income is £80,000 per year.
Tony wants the children to stay with him and asks your advice about the following matters:
- On what grounds can he end the marriage?
- How will their assets be divided?
- What will the court take into account in deciding with whom the children should live?
a) In order to the end the marriage, Tony must show that it has broken down irretrievably – s1(1) Matrimonial Causes Act 1973 (MCA) and this must be evidenced by one of five facts contained within s1(2) MCA. These are adultery, intolerable behaviour, desertion, two years living apart with consent or five years living apart without consent. A petition cannot be presented within the first year of marriage, but this would not be an issue as the couple have been married for 8 years. As Alice has been having an affair it would seem like Tony could petition on the grounds of her adultery. However, as the affair is with a person of the same sex it would not apply. Adultery was defined in the case of Dennis v Dennis (1952) as 'a voluntary act of sexual intercourse between the husband or wife and a third party of the opposite sex.'
It is more likely that Tony can petition on the grounds of Alice’s behaviour. She must have behaved in a way that Tony finds it intolerable to live with her. According to the judgment in Livingstone-Stallard v Livingstone-Stallard  this is whether a right-thinking person would come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and personalities of the parties. If Tony had also had an affair it may be difficult for him to rely on this fact.
None of the other three grounds are applicable, although they may be relevant in the future if Alice leaves Tony and they live apart for a period of time.
b) As Tony and Alice have been married the court has powers under the MCA to redistribute property. It will consider the factors in s25, relevant case law and whether there should be a clean break between the parties. A clean break would usually be appropriate in short childless marriages, where both parties have established careers, where the parties are very wealthy or where the relationship between the parties has totally broken down. Given the circumstances it would not appear appropriate here. Where the assets of the parties outstrip needs, as in ‘big money’ cases, the courts would consider fairness – White v White  and financial needs, compensation and sharing – Miller v Miller; McFarlane v McFarlane . This does not appear to be a ‘big money’ case and so the court’s consideration will be to their needs. Under s25(1), the courts will consider all circumstances of the case, the first consideration being the welfare of any child under the age of 18. Pre-nuptual agreements, if relevant, would be considered under all circumstances of the case. The court will then consider the factors under s25(2). These are the income, earning capacity, property and other financial resources of the parties, their financial needs, obligations and responsibilities, their standard of living before the marriage broke down, the age of the parties and the length of the marriage, any physical and mental disability of either part, contributions made to the welfare of the family, conduct of the parties and the value of any benefit that they will lose the chance of acquiring because of the divorce.
As Tony appears to have no income, he may apply for maintenance pending suit, under S22 MCA. This would allow him to meet his interim costs until a final order is made. Under s23, the court can make a money order in favour of either party. As Tony is not working it may be appropriate for period payments to be made by Alice to him. These may be for a short period, until he establishes himself in his career. However if he remains a full time or part time carer of the children, they may last for a longer period. Under s24, the court may make a property order. This may be a transfer or property (s24(1)(a)), for example from Alice to Tony if he continues to look after the children, a settlement of property (234(1)(b)) so that the property is settled on one of them for a period of time, for example until the children leave full-time education or a sale of property (s24(1)(c)) so that they could share the proceeds of the sale.
c) The court may make a Residence Order under s8 Children Act 1989 in favour of one of the parents if there is a dispute about who the children should live with. Either parent is entitled to apply for an order. The court must take into account the welfare principle – s1(1) – that the child’s welfare is of paramount importance; the no delay principle – s1(2) – that any delay in the proceedings is likely to prejudice the welfare of the child; the no order principle – s1(5) – the court should not make an order unless it considers that doing so would be better for the child than making no order at all and the welfare checklist – s1(3).
Under the checklist, the court will consider the following items:
- The ascertainable wishes and feelings of the child in light of their age and understanding. As the children are 7 and 6 it is unlikely that the court will consider that they are Gillick competent.
- Their physical, emotional and educational needs. Their physical needs can be met by either parent. However the courts will try to keep children at a school where they are settled if this is possible. There is no general rule that the mother will be favoured in residence disputes but it is considered best to keep the children together – C v C (Minors:Custody) .
- The likely effect of any change in circumstances. The courts will seek to maintain the status quo whenever possible. This may mean the children staying in the home with Tony.
- Age, sex, background, and any other characteristics which the court considers relevant.
- Any harm that he has suffered or is at risk of suffering. The children do not seem to be suffering any harm as defined under the Children Act 1989.
- How capable each parent, and any relevant person, is of meeting his needs. The lesbian relationship will not prevent Alice from having care of the children and it would be unlawful to discriminate on the grounds of sexual orientation – Da Silva v Portugal 
- The range of powers available to the court in the proceedings. The court must fully consider the range of orders open to it. It may be that one parent will be granted a residence order and the other a contact order.
The first part is quite well structured and covers many of the main relevant points. For extra marks you could add that irretrievable breakdown itself is not enough to end the marriage, neither is evidence of one of the facts without irretrievable breakdown. See Buffery v Buffery (1988). You could also elaborate on the other three facts and state when they would be relevant. For example if they lived apart for two years and Alice agreed to the divorce, they could rely on two years separation with consent.
The second part has covered the main points but it would be relevant to apply the facts of the case to the factors in the s25(2) checklist. For example under income, earning capacity etc Alice currently has a greater income and earnings capacity but this may change in the future if Tony becomes a solicitor.
The third part has covered the factors that the court will take into account in making any order and has applied the law to the facts. However it could have mentioned the possibility of a shared residence order being made as long as it promotes the children’s welfare.