In recent years, the ‘institution of marriage has manifested among the debatable issues worldwide today’[1]. There are emerging concerns in the marriage institution, such as same-sex marriage, which was taboo. Currently, most countries are legalizing and embracing the idea of same-sex marriage. Divorce and separation as part of the marriage institution can be demoralizing and stressful, especially when a child is involved. There has been a need for divorce reforms for some time now, and the good news is that the divorce law reforms were finally enacted early last month. What has caught people’s attention is the introduction of the no-fault divorce law. This law is basically about not pinning divorce on a spouse’s faults like adultery and such issues; the law allows people to decide separation or divorce without meeting the standard factors that ground divorce, as discussed below. So Tom meets this in Spain, then get married and settles in London; a baby has come into the picture when Tom realizes that his wife was married before and is having a love affair with the ex-husband. This paper focuses on the critical analysis of Tom’s marital situation, linking relevant case laws to his situation and advising accordingly.
UK laws allow for divorce provided that the reasons for filing the divorce meet the grounding factors of an irretrievably broken marriage. According to the matrimonial causes act of 1975, these factors include; adultery, unreasonable behavior such as drug use, and separation for over two years. Spouses who have stayed in the marriage for more than one year are also ‘entitled to a divorce, provided their reasons are among the factors mentioned above’[2]. In Tom’s case, he is eligible to file for a divorce petition in the UK courts. Tom’s wife is having extramarital affairs; she is still romantically involved with her ex even when she is legally married to Tom. According to Tom’s realization, his current wife was married to someone before they officially married. We are not fully informed about Alejandra’s former marriage, but Tom would be advisable to dig deeper to find the reality. With the right enough information and evidence against the adulterous wife, he can decide to file for a divorce. Linking this case to Owen v Owen [2018] UKSC 41, [2018], AC 899[2018]3WLR 634 case law. Both divorce petitions meet the legal reasons for ending marriages in the UK. However, the ruling in the case law provided indicates that the judge upheld the ruling from the high court, which stated that for petitions to be considered, they should not be flimsy. Tom should file for a divorce, and if at all the wife moves to defend the divorce, he should maintain his statement to avoid creating a flimsy petition that the judge may rule out.
Divorce and separation when children are already in the picture are usually stressful and may severely impact their educational and general life performance. Current studies indicate that ‘children from divorced parents are poor performers at school and are normally withdrawn’[3]. The UK divorce and separation laws indicate that both parents of a child should be financially responsible for the well-being of their children. Also, when separation occurs, parents should have shared custody of the child unless otherwise. From the case provided, Alejandra does not have any source of income, which means Tom should take full care of Victor until the mother stabilizes and can equally contribute to the child’s financial needs. When Tom becomes the non-resident, he and the wife should agree on child support and the frequency of sending the finances. Apart from financial support, it is advisable to know that children need parental care and love even when they are not together. Shared custody is very common in the US and other states; the UK seems to be slower in developing it. It entails the custody where the child in question has equal access to the mother and the father, and they share reasonable time with the child. Hussain suggests that states that some of the factors that should be considered when granting child custody are; ‘the relationship between the child and the parents since the baby’s birth, the child’s preference, and the personality and behavior of both parents’[4]. The current law regarding child custody in the UK advocates for a mother to take care of the children until they reach a certain age. However, this does not outperform the factor of personality and behavior.
Like in the case provided, the fact that Alejandra Is having an affair with the ex-lover when she should be taking care of her son and husband shows how ill-mannered she is. Maybe Tom should file for the child’s custody and file a petition of his wife’s wicked ways. On second thought, looking closely into Alejandra’s cheating scandal, we can conclude that perhaps the child belongs to her ex-husband; I mean, this affair has been on for years, and who knows? I think it would be advisable that Tom take a DNA test with the baby to confirm his paternal roots. The decision he will take concerning the DNA results should be entirely his, and if the need arises, he should seek a lawyer to advise him on the same. That means he will decide whether he will be a supportive father to Victor. Like in the case of K V K, [2022] EWCA, CiV 468, the child’s mother in question has crooked ways, and the ruling is that the child’s father takes full custody.
Another aspect Tom should consider before ending his relationship with his wife is the UK’s finance and property settlement laws. Rules regarding property settlement in the UK state that the property shared during separation should be matrimonial. Matrimonial property is the ‘property acquired when divorcing parties were already married’[5]. For example, if Tom and Alejandra acquired the house, they lived in when they were together, which is not the case here. From the case study, it is evident that Tom inherited the house they were living in from his grandfather ten years ago. Houses are the main properties the courts focus on when separation and divorce. Tom’s house is a non-matrimonial property; he acquired it way back before marrying. Therefore, the court should exclude the house should Tom and the wife settle on separation.
Normally when separation and divorce come into the picture, the house, which is the major property, causes a few emotions and attachments. In this case, Tom had stayed in this house for a very long time, and it is obvious that he has good memories in this house. Financial settlement issues may arise from the property settlement issues arising from the case. Tom is the breadwinner in the case, which means that when he decides to divorce Alejandra, his finances will be divided equally between them. The UK law of divorce looks forward to settling on the 50/50 notion to ensure the peaceful co-existence of the divorced. During financial settlements, there are certain factors to consider: the income of the breadwinner, the mental status of the other spouse, and the financial management skill of the other spouse. The other spouse in this context is Alejandra. Should Tom take the divorce petition to the court, thorough research should be done to ensure Alejandra is mentally fit and has the basic financial skills to prevent further applications for financial settlements take place. Using the White V White [2001]UKHL 54, the spouses from this case have enough finances and assets, and the judge finds it difficult to decide on the need to divide the wealth the couple acquired together. Comparing Tom’s case to this, It would be wise for Tom to specify their assets and financial capabilities to ensure equality and fair ruling.
Additionally, Tom should consider spousal maintenance and child support when he settles for separation. Spousal maintenance is the amount of money the court offers to the spouse with less income than the other. In recent research, only the male gender is subjected to this ruling compared to women. Perhaps the legislative body should consider revising this part of the family law. It is inconsiderate and unfair when Men do not enjoy such rights as ladies. Equality should be promoted, and men too should enjoy such privileges. According to Fotheringham, some of the ‘grounds for issuance of the spousal maintenance are; the period of marriage, when one offers to quit work to take care of the household, the spouse’s ability to manage financially after separation, and whom to take care of the children if they are involved’[6]. From the case, we realize that Alejandra resigned from her nursing job to come and join her husband in London, where she is currently a stay-at-home mom. She is entitled to spousal maintenance because of the period of the marriage and the fact that she is fully taking care of their son, so she does not have any source of income and therefore needs Tom’s financial aid. Tom should therefore sit with the wife and agree on the spousal maintenance; they can decide to do the maintenance support every month or give it out as a lump sum.
From the above discussion, we realize that divorce and separation have become the major enemy in the marriage institution. In the late 90s, the English law did not advocate for unexplained divorces, and the law stood its ground on the matters that supported divorce. The divorce law reforms have been pushed for some time now, and when they finally came into practice earlier last month, we realized the need to appreciate the reforms, the advanced perspective of the grounds for divorce carries the day. The marital and divorce issues that we derive from the case are; the grounds for divorce and the relevant past case law, financial and property settlement rules in the UK, child custody, support after separation and divorce, and spousal maintenance after divorce. During financial settlements, there are certain factors to consider, which are; the income of the breadwinner, the mental status of the other spouse, and the financial management skill of the other spouse too. The issues have been discussed extensively with the necessary steps Tom should take to ensure fair rulings when he files his divorce petition.
A Cshaulskiy, a. “marriage and divorce in the united KINGDOM.” Мы говорим на юридическом английском, немецком, французском, испанском…. 2020.omparative Study of USA, UK, and India. Concept Publishing Company.
Dommaraju, P. (2016). Divorce and separation in India. Population and Development Review, 195-223
Hussain, S. J. (2015). Marriage Breakdown and Divorce Law Reform in Contemporary Society:
Jackson, J. (2012). Matrimonial Finance Consequent on Divorce: The English Structure. Alta. L. Rev., 20, 229.
Kaslow, F. W., & Robinson, M. (2018). Mediation with families in separation and divorce in the united kingdom: links with family therapy. American Journal of Family Therapy, 16(1), 60-72.
Fotheringham, J. M. (2018). Spousal Maintenance in Scots Family Law. Hous. J. Int’l L., 41, 601.
[1] Dommaraju, P. (2016). Divorce and separation in India. Population and Development Review, 195-223
[2] A Cshaulskiy, a. “marriage and divorce in the united KINGDOM.” Мы говорим на юридическом английском, немецком, французском, испанском…. 2020.omparative Study of USA, UK, and India. Concept Publishing Company.
[3] Kaslow, F. W., & Robinson, M. (2018). Mediation with families in separation and divorce in the united kingdom: links with family therapy. American Journal of Family Therapy, 16(1), 60-72.
[4] Hussain, S. J. (2015). Marriage Breakdown and Divorce Law Reform in Contemporary Society:
[5] Jackson, J. (2012). Matrimonial Finance Consequent on Divorce: The English Structure. Alta. L. Rev., 20, 229.
[6] Fotheringham, J. M. (2018). Spousal Maintenance in Scots Family Law. Hous. J. Int’l L., 41, 601.