Q4 Briefly outline ALL the grounds of divorce and dissolution of civil partnerships in Scotland then select one of the irretrievable breakdown grounds and explain in detail, how it applies in practise with reference to legal principles and cases as appropriate
Two grounds of divorce or dissolution. Gender recognition certificate or irretrievable breakdown. Divorce (s) Act 1976 & Civil Partnership Act 2004
CP – Grounds for invalidity mirror marriage – cannot be valid if; different sexes, under 16, already in CP or does not give consent to marriage. Death – Presumption of Death (s) Act 1977 Actual/presumed – if spouse/cp is not known to be alive for 7yrs. Presumption is rebuttable by proof up to granting of CT decree. Can re-marry (does not revive marriage however)
Adultery – S1 (2) a Divorce (s) Act 1976
Irretrievable breakdown of marriage is established if “since the date of marriage the defender has committed adultery”. Cheating essentially. Adultery is not a ground for divorce for dissolution for CP as it would be impossible. Adultery is gender specific, voluntarily having sex by married person who isn’t their spouse. CP – constitutes intolerable behaviour. Same sex is not adultery its intolerable behaviour
Hunter v Hunter 1900 – Presumption of death case
Mr H deserted her and ran off to Canada and had not contacted her in a long time. She presumed he was dead and got involved in a new marriage. He returned, sought divorce on her adultery. She didn’t ask for one when he deserted so court held her to be guilty of adultery. Divorce was granted.
Defences for Adultery
Lenocinium s1 (d) Divorce (s) Act 1976 “Pimping”
Essence of defence us that pursuer actively promoted the defenders adultery or was Art and Part of defence. E.g “pimping”
Gallacher v Gallacher
Mr G wrote to wife urging her to give him grounds for divorce. So she found new lover. Held, she wouldn’t have done this but Mr G was urging. However no divorce was granted. 6yr later, he tried again and at the time Mrs G was still with new lover. Her defence for Lenocinium failed this time as she chose herself to live with new man and could say she was forced. Divorce granted.
Condonation s1 (1) 3 – Pursuant know of the adultery but continue to live with the defender and amounts to “legal forgiveness” period of cohabitation up to 3 months is permitted, this act encourages reconciliation.
Behaviour – s1 (2) Divorce (s) Act 1976 + 117 (3) Civil Partnership act 2004
Intolerable behaviour in marriage or CP is “since date of marriage or registration of CP, the defender has at any time behaved in such a way the pursuer cannot reasonably be expected to cohabit with defender. A mere physical condition doesn’t constitute as behaviour.
Tharlow v Tharlow 1975