LEGAL ISSUES Location

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Legal issues

LEGALISSUES

Location

LegalIssues

FIRM ADRESS

19Shetland Way, Greenford

13/12/14

Reference

Dear Morag

Onthe 13thday of December you brought a complaint to our office of the problemsyou have under gone in your marriage. We are authorised to act forand on behalf of Morag after acquiring full instructions to do so.Recently Mrs. Morag came to see us over divorce proceedings due tothe husband’s violence behaviour that she could no more endure.Morag alleges that when the husband came to know about the divorceproceedings, assaulted her badly. She says that is not the first timethe husband is behaving that way.

Howwill court distribute the marital property to the parties?

At commonlaw, the property, which parties own are regarded as marital propertyregardless of who owned it first? Common law considers the followingas marital property bonds, pensions, bank accounts among otherproperties. It does not matter whether the property is registered inone-person names unless it is sure that only one party to themarriage exclusively owns a particular property. Even propertybrought to the marriage the court will consider it as part of themarital property after considering the length of the union and thenature of the asset. Typically, court expects each party to make fulldisclosure of the property they own together with the debts they weto other people. The procedure to be followed and the factors to beconsidered in the distribution of the properties are all providedunder section25(1) of the matrimonial causes Act1973.

Therefore Ihereby advise Mrs. Morag to apply for proceedings of judicialseparation pending the court’s ruling on divorce proceedings. Thisis in your best interest and your child. A legal separation involvessimilar proceedings as a divorce application in terms of fillingpapers, and the court has similar questions to answer. For example,the court should consider various factors as mentioned above beforedeciding on the children’s custody, assets, and debts just like indivorce proceedings. The only difference comes after the courtprocess, the couple just separates and do not completely divorce,which means they are still husband and wife.

Yourssincerely

attendancenote

Client:Mrs. Morag

Ref:

Matter:Divorce proceedings

GeorgeRowland (“GWR”) attending John Cartwright (“JC”) [in person]

Mrs.Morag is married to Mr. Scott they have both been married for 6years and have one child. Morag is a house wife whereas scot is aninformation technology consultant, who earns forty thousand pounds.The couple leaves at 19 Shetland ways, Greenford. Their property isbelieved to cost two hundred forty three thousand pounds and waspurchased by Scott years before their marriage. The property howeverremained in Scott’s names and it has a mortgage encumbrance of36000 pounds.

Thismorning Morag came to the office with a bruised face she has beenslapped several times by her husband after learning about divorceproceedings. She alleges that this is not the first time her husbandassaults, it all happened when she told him that the divorce paperswere on the way, they picked an argument and he slapped her acrossthe face several times and grabbed her by the hair and banged herhead on the wall. She screamed so loudly and neighbour called thepolice, when the police arrived and asked, she was afraid to tell thetruth and said that there was no problem. She says that two years agoshe was slapped and pushed, she fell awkwardly and broke her nose,and one year ago she was again slapped and damaged her ear drum whichshe says up to now her right ear does not hear properly.

Sheis so frightened by the husband’s actions and says she has neverseen him angry like this. He has a criminal record of assault onceand according to investigations several fighting has taken placebetween the couples.

Moragsays she is ready for the divorce on whatever cost due to the violentbehaviour of the husband

LegalIssues

Brieffacts

Moragand Scot have been in marriage for six-year, whereby Morag is ahomemaker, and her husband Scot is an information technology whoearns forty thousand pounds. They leave at 19 Shetland in a three bedroomed house, which was bought y the husband two years before theirmarriage. The couple has one child aged five years, who has a sightproblem. Morag is badly assaulted by a man when she tells her thatshe has commenced divorce proceedings due to several incidents ofviolence against her. Tommy is engaged to Lulu, and they have a babygirl but wondering what will happen to his property when he dies.

Issues

WhetherMorag can successfully secure a divorce from Scott

WhetherMorag can successfully apply for a judicial separation

Howwill court distribute the marital property to the parties?

Whowill take the child`s custody?

Whatwill happen to Tommy’s estate in the event of his death?

Lawapplicable

Commonlaw principles and doctrines of equity

Caselaw

Resolutionof issues

WhetherMorag can successfully secure a divorce from Scott,

Adivorce refers to a legal action between married partners with theintention of ending their marriage relationship because of problemsthey cannot solve and continue with their union. Divorce can alsomean the act of dissolving a marriage and majorly the process thatends a marriage before the death of any of the spouses (Lind2008). Forany divorce proceedings to commence, or for any party to institutesuch proceedings before any competent Court of law, there are groundsthat the common law requires that the person instituting suchproceeding must fulfil. For example, for one to prove that there wastwo years separation with consent, unreasonable behaviour, adultery,Unreasonable behaviour, desertion, and five years` separation withoutconsent before the court can accept such proceedings to commence(Macgregor2004).

Inthe case of JonesVs Jonesthe court held inter alia,that violence is a significant characteristic of unreasonablebehaviour and its presence in the facts would amount to a proof ofthe case. In other words, if one can prove most of the grounds above,it would be sufficient for instituting divorce proceedings (Bookeret al. 2006). In FunaiVs Tonga theappellant was not satisfied with the decision of granting her wife adivorce and court held that in the hearing, the petitioner had oneground to prove that her husband’s behaviour was heavy and hadbroken the marriage which she proved. The appellant court also upheldthe earlier decision.

Inthe instant facts of the case above, Scott is very violent to Moragfor instance, this amounts to an unreasonable behaviour. It isbecause Scott slaps her when he hears of the divorce proceedings, andshe says that was not the only time he has assaulted her, and that hehad earlier assaulted her and broke her nose during their normalarguments. It is enough to prove unreasonable behaviour andfacilitate a ground for a divorce. Therefore, with the facts above,Morag can successfully secure a divorce from the courts of law(Schwartz1998).

WhetherMorag can successfully apply for a judicial separation

Gross,et al. (2006) assert that alegal separation involves similar proceedings as a divorceapplication in terms of filling papers, and the court has similarquestions to answer. For example, the court should consider variousfactors as mentioned above before deciding on the children’scustody, assets, and debts just like in divorce proceedings. The onlydifference comes after the court process, the couple just separatesand do not completely divorce, which means they are still husband andwife. Accordingly, for one to achieve judicial separation, they needto satisfy the same grounds as in the divorce proceedings asstipulated by the common law system. However, unlike in divorceproceedings, in the course of litigations, it is critical to provethat the marriage has a hope of being revived, even if there is aslight hope of saving the marriage. The pronouncing of a judicialseparation implies that the spouses are under no any legal obligationto live with each other. Similarly, after such judicial separation,the court has a legal duty to distribute matrimonial properties as ina divorce proceeding. Judicial separation order can be granted undersection24(1) of the matrimonial causes Act 1973.Lastly, the spouse no longer benefits from a previous will unlessthere is another will specifically for that purpose (Austin2009).In the case of FosterVs Foster,court demonstrated that a judicial separation is the same as divorcein terms of procedure and legal effects. Accordingly, the groundsnecessary are similar the only difference that was cited is that thejudicial separation does not end the marriage relationship of thecouple (Clifford&amp EBSCO Publishing 2013).

Inthe case under scrutiny, facts are looking for a better way to leavesafely without being harmed since the husband has proved to be veryviolent. It is imminent when the facts present his reaction when hehears about the divorce proceedings he assaults her dangerously yetthat was not the first time he does it. To avoid further assaults ofthe same kind she applies for a judicial separation where by the timethe court gives its final judgment on divorce the two parties shouldnot be under any obligation of staying together. Given the groundsfor judicial separation outlined by the common law system, Mrs. Moragwill be granted the order of legal separation (Todd2010).

Howwill court distribute the marital property to the parties?

Atcommon law, the property, which parties own are regarded as maritalproperty regardless of who owned it first. Common law considers thefollowing as marital property bonds, pensions, bank accounts amongother properties. It does not matter whether the property isregistered in one-person names unless it is sure thsat only one partyto the marriage exclusively owns a particular property. Even propertybrought to the marriage the court will consider it as part of themarital property after considering the length of the union and thenature of the asset. Typically, court expects each party to make fulldisclosure of the property they own together with the debts they weto other people (Stewart2011).

Regardingthe distribution of marital property, courts have got a broaddiscretion, though the English legislation on the allocation of thisproperty seems short, court determines what is best in the interestof the family. There are various principles the court can follow tomake such distribution, for example, on the instant facts the judgecan decide to order for a lump sum of payment. For instance, if aparty has 10 pounds on his account, an order can be secured totransfer 5 pounds to the account of another spouse, and this can bedone on the property, as well. There are various factors, which thecourt follows before pronouncing such an order. For example, thebefore pronouncing the judgment, it considers the marriage duration,the age of each party, the family’s standard of leaving, bothmental and physical ability, and the extent of household needs amongothers. There are various orders the court can issue in regard to thedistribution of properties. For example, the orders that court canissue in regard to the distribution of the marital property are animmediate sale of the property, transfer of the property into onespouse’s name or postpone the sale of the asset (Namibia&amp Nujoma 2003). The procedure to be followed and the factors tobe considered in the distribution of the properties are all providedunder section25(1) of the matrimonial causes Act1973.

Inthe case under assessment, Mr. Scott earns 40 pounds, which means hecan be subjected to alimony of around 20 pounds per month for thepurposes of the maintenance fee and to look after the child. In thesefacts, it is also established that their son has a slight problemmeaning that it also must be into consideration by the court(DeSimone&amp Haman 2005)

Onthe other hand, concerning the issue of the matrimonial house, theorder that the tribunal should consider is the transfer of the saleof the property. It should be done in consideration of their sons`age(Simon&amp Altstein 2003)jimmy is only five years old. In most scenarios as in this case, if acouple has a child of a tender age, court may consider postponing thesale of the matrimonial home. Therefore, this looks to be the bestremedy for the marital home to avoid future suffering of the youngboy (Parman2000).

Whotakes the child`s custody?

Atcommon law, most courts consider the principle of the welfare orwellbeing of the child first before any other thing. In other words,the common law requires that the Judges in making their decision mustprioritize the best interest of the child. It does not matter, whichparent is most suitable than the other in terms of job security orthe lack of a job, what is important is the child’s welfare. Thatis to say, Judges in their decisions are expected to value and findnothing else in matters regarding the custody of the child (Kiralfy1972).However, it is not as easy it is thought because differentjurisdictions define a child’s welfare in various ways and as such,they focus on different principles. Judges do not impose change on achild. For example, if before the divorce the parents have beenapart, then after the divorce order the parent who was staying withthe child will be granted the custody of the child. In cases wherethe parents were not staying apart, the one who was much close to thechild in terms of care will be granted the custody of the child. Onthe other hand, courts prefer parents who will take their children’sinterests as their priority. The judges favour a parent who seesthrough the hard feelings between them and ensure that the child canaccess both of them this helps the other parent to visit his or herchild (Taft2013). Theother consideration is that the child’s preference. In somejurisdictions the child’s choice priority over any other factor, itis important for the court to know what makes the child is happybefore they could arrive a decision. The judges will also considerthe fact of violence, for instance, a parent who is fond of violencein the home may not be favoured by the court. However, on the otherhand, some other issues do not affect the custody of the child, forinstance, spouses believe that a parent’s bad behaviour shouldinfluence the decision of the judge. Such a character can only affectthe decision of the court if it is directly affecting the child,otherwise it does not influence the decision. For example, where aparent involved himself or herself in adultery and the child does notknow, that cannot stop a spouse from having the custody of the child(EdwardThompson Company 1901). Section29(1) and (3) of the matrimonial causes Act 1973provides that in division of the property the child’s interest isparamount.

Inthe case of LoweVs Lowe,the applicant sought the custody of the child in case the proceedingsconcluded in his favour. However, upon interviewing the minor, hepreferred staying with the mother for father. Court held that thechoice of the child is crucial to the issue of children’s custody,and the tribunal upheld the child`s choice by granting the mothercustody of the child (Margulies2007). In MVs Mthe mother had applied to court for the grant of custody aftersecuring a divorce but the husband alleged that granting the ex-wifean order of custody would interfere with his customary rights. Courtheld that custody is governed by statutes and not customary rightsand therefore granted the applicant the order basing on welfareprinciple.

Inthe instant facts, Mr. Scott’s character is in question andtherefore he may not be given custody of the child. In thecircumstances, Mrs. Morag explains the violence of the husband byassaulting her when he learned of the proceeding of divorce. She alsosays that it was not the first the man assaulting her this puts thechild’s welfare in danger in case the custody of the child isvested in Mr. Scott. Therefore, Mrs. Morag will take the care of thechild (Grossman&amp Friedman 2011).

Whatwill happen to Tommy’s estate in the event of his death?

Accordingto Bauer,atcommon law, it does not matter how two partners live together even ifnot legally married. Therefore, the law treats such people asdifferent separate individuals who do not have any obligations andresponsibilities owed to each other. Below are some measuresunmarried people should always consider doing regarding propertyissues (Bauer2014).

Oneof the major essential steps unmarried people should always take careof is to consider what they wish for each other in the event of thedeath to any of them. Similarly, Oldham(2004) holds thatany partner may decide to create a will, and intentionally makes theother party a beneficiary whereby in case death claims his or herlife the estate vests in the other partner. If an individual dieswithout such a document, the intestate laws will be applied.Intestate succession refers the proceedings prescribed by the stateto distribute the deceased’s property when he did not make a will(Kanjama&amp Juma 2009).Intestate laws vary according to different jurisdictions, but ingeneral, the deceased’s property vests in the spouse and children,but where the deceased is not married, it will distributed among hisor her relatives like parents, brothers and sisters, aunts anduncles, nieces and nephews, among other distant relatives. It is thereason it is critical that couples living together, but unmarriedshould create wills. Accordingly, Loeb(2004) postulates thatwill refers to a document in which a person expresses intentions andwishes concerning their estate, debts, and their children in theevent of their death. In a will, one can create a trust, identify thebeneficiaries to the trust, and name the executor of the trust. In awill, a person is also able to forgive debts, name the would-beguardians to their children, and create assignments (Burrage&amp Little 2003).

Section51-31 of the general statute provide all these procedures in England,in another English case of R Vs R court also pronounced its self asfar as intestate proceedings are concerned. Court held that where thedeceased has died without a will no other person wish can berecognized regardless of the closeness he, or she had with the dead(Foodand Agriculture Organization of the United Nations&amp Cotula 2006).

Inthe instant facts, Tommy’s engagement Lulu cannot amount to amarriage at common law, so what happens after his death is thatintestate laws will be applied. Since their relationship does notamount to marriage, his estate will vest in the baby girl he has inhis relationship (Jackson2010).

Inconclusion, the paper has discussed the major legal issues in thesection on family relations. Those few issues arise from the factsprovided. The paper has also answered the question of how the courtsmay divide the matrimonial assets on divorce, and how Morag may beprotected from her husband’s violence (Macgregor2004).It also talks about what will happen to Tommy’s estate in the eventof his death. The court distributes the marital property equally tothe parties. Therefore, in case of any violence against Morag, sheshould apply for judicial separation and lastly Tommy’s estate isgoing to be vested in his baby girl. The paper also answered severalother questions of law like child’s custody and what amounts tomarital property.

References

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