Divorce & Adultery

Annie and Khalim met whilst Annie was on holiday in Marmaris (Turkey) in 1996. Khalim worked as a hotel receptionist. In 1997, following much correspondence and many telephone calls. Annie returned to Turkey, and Khalim asked her to marry him. They were married the next week at Khalim’s father’s house.

On contacting the British immigration authority, Annie was informed that Khalim would not be able to enter the UK immediately. He would have to apply for a visa. Annie decided to stay in Turkey and in November 1998, she discovered that she was pregnant. The couple were living in a small flat adjoining the hotel and the winter was particularly cold and wet. The flat was damp with no heating. Annie and Khalim decided that the health of Annie and their unborn child would be better served if Annie returned to the UK.

Annie arrived in Cardiff in February 1999, and went to live with her parents in their house in Whitchurch, Cardiff. From there she continued to support Khalim’s application to join her in the UK. In July 1999, Annie gave birth to their son, Mehmet. In September of that year, Khalim was granted a visa, and joined Annie and his son. Annie’s mother gave the couple £10,000 which they used as a deposit to purchase a house.

The house, in Thornhill is a two bedroomed end terrace. It cost them £80,000 and they used some savings and the money given by Annie’s mother together with a mortgage of £64,000 to purchase the property. The purchase was completed in November 1999. Khalim obtained a position in Jury’s hotel which paid him £900 per month (gross). Annie went to work as a clerical assistant, working three days a week. During the time that she was at work, her mother cared for Mehmet. Annie earned 500 per month (gross).

Annie and Khalim decided to have a UK wedding, to coincide with the millennium celebrations. They went through a civil ceremony in January 2000. Their lives went smoothly until early 2003, when Khalim began working much longer hours at the hotel. He claimed that this was necessary because money was short and he wanted to save so they could return to Turkey for a holiday and so that his family could see Mehmet.

By July 2003, there were no holiday plans in place, but Khalim was spending more and more time in work, often sleeping in the hotel. In September 2003, Khalim told Annie that he was in love with Zena, a colleague at Jury’s. He moved out of the matrimonial home, and into Zena’s flat. Annie has consulted you and asks for advice on the following matters, and tells you that she is seeking a divorce based on Khalims admitted adultery. You may assume that the divorce proceedings undefended and without inadent.

• • Khalim has told Annie that the house must be sold and the proceeds divided between them 50/50. The house is currently valued at 135,000. At the time of purchase the property was put in Khalim’s sole name.
  • Khalim says that he cannot afford to pay maintenance for either Annie or Mehmet. Annie is currently living on Income support, as she gave up work, following their relationship breakdown.
  • Khalim wishes to take Mehmet to Turkey. He says it is for a holiday and family visit, but Annie fears that this is a cloak for child abduction. In each case, advise Annie of the law (citing cases and relevant statutes) and the practice of the courts.

Explain to her how she might protect her position and Mehmets position. AND In the light of the advice given to Karen what reforms might you suggest?

Annie v. Khalim and Re: Mehmet (A Child)

This situation requires consideration of a number of issues:

• • Financial ancillary relief: the fate of the former matrimonial home and Annie’s claim for maintenance;
  • The role of the Child Support Agency;
  • Child Abduction: Prevention and Remedies.

Financial Provision: Annie

The court will grant an uncontested divorce. Financial provision for Annie and Mehmet (subject to the role of the CSA) is relief ancillary to the divorce. Sections 23 & 24 of the Matrimonial Causes Act 1973 (as amended) empowers the court to make any or all of the following orders:

• • Avoidance of disposition (if for example Khalim were to try to exploit the fact that the house is in his sole name and sell it);
  • Financial provision (maintenance and/or a lump sum for Annie);
  • Maintenance pending suit (if Annie is unable to survive financially pending resolution of financial issues);
  • Property adjustment (the vesting in Annie of some or all of Khalim’s interest in the former matrimonial home);
  • Variation (unlikely to apply here);
  • Pension sharing (unlikely in view of Khalim’s employment history and the brevity of the marriage).

Section 25(1) of the Act requires the court in exercising the above powers to have regard to all the circumstances of the case first consideration being given to the welfare while a minor of any child of the family who has not attained the age of 18 years. Thus Mehmet’s age and needs are of particular significance. In M v B (Ancillary Proceedings: Lump Sum), Thorpe LJ stated that it was one of the paramount considerations in applying the criteria in s.25 to endeavour to stretch out what is available to cover the need of each party for a home particularly where young children are involved. The primary carer needs a home for the child and the other parent ideally needs a base for contact. (It is significant to note that Thorpe LJ commented while considering this exercise and the financial strain which will almost certainly result that it is necessary to distinguish between hard debts such as those due to a bank and soft debts such as those to relatives. Thus unless the money from Annie’s mother was formally advanced and the subject of a trust deed (see below), even if she asserts that it was a loan rather than a gift, she is likely to be kept waiting!)

Section 25 further provides that the court must have regard to a number of further factors the following of which are applicable here:

• • The income, earning capacity and other financial resources of each of the parties now and in the foreseeable future. In this regard, while Annie is clearly at present in an inferior position to Khalim, she has shown that she is capable of work and will be expected to take steps to improve her position. However, this will obviously be circumscribed by the fact that her previous employment was part-time and she has responsibility for the daily care of Mehmet. His financial position is therefore likely to remain poorer than Khalim’s for some years to come. By contrast, Khalim has the benefit of a home by virtue of his relationship with Zena.
  • The financial needs and obligations of the parties. Again, Annie’s needs are dominated her responsibility for Mehmet.
  • The standard of living enjoyed by the family before the breakdown of the marriage. Thus even if it were possible for Annie (who has no mortgage capacity) to identify a property which could be purchased with the 50% share proposed by Khalim, it is not likely to be appropriate in these terms. The existing house barely meets their reasonable needs.
  • The age of each party to the marriage and the duration of the marriage. The parties are apparently relatively young and the marriage was of medium duration. Thus while both can be expected to recover from the financial consequences of the divorce without the need for long term financial interdependence, Annie and Mehmet must be properly provided for in the short-term but Mehmet who has contributed financially over a significant period should not be expected to leave the marriage empty-handed.
  • Contributions by either party to the welfare of the family. This favours Annie who will not therefore be penalised for the fact that her contributions were more in kind than financial.
  • The conduct of the parties. This refers to conduct having financial implications. Khalim’s adultery is not a factor.

Section 3 of the Matrimonial and Family Proceedings Act 1984 enacted a new s.25A to the 1973 Act which requires the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable. This has particular significance for Annie’s ability to secure continuing maintenance from Khalim in the form of periodical payments. Prior to the introduction of this reform periodical payments (typically to a non-working ex-wife) were frequently until death or remarriage and subject to periodic variation by the court on the application of either party in the light of the prevailing financial circumstances. This became pejoratively known as the meal ticket for life and provided the recipient with a disincentive to work or otherwise improve their financial circumstances. In this case, if Annie is able to persuade the court that her immediate financial circumstances are such that she cannot make ends meet without support from Khalim, given that Khalim has an income and presumably limited housing costs, the court may be persuaded to make an order for periodical payments in Annie’s favour. However, by virtue of the requirement of s.25A that the court consider a clean break, such an order will not be of unlimited duration. Mehmet is now of an age where he is attending full-time schooling and Annie might therefore be expected at least to obtain employment during school hours. Much will depend upon the cost of mortgage repayments and outgoings in respect of the former matrimonial home if, according to the principles discussed below, she is enabled to remain there but, in any event, any order for periodical payments is likely to be of a finite period at the conclusion of which Khalid’s responsibilities (in respect of Annie) will be formally extinguished.

The court will have to exercise its powers in respect of the former matrimonial home. This was purchased for 80,000, funded by a mortgage of 64,000, a contribution from Annie’s mother of 10,000 and joint savings which must therefore have amounted to some 6000. It is not clear whether the money from Annie’s mother was a gift or a loan. There is equity in the former matrimonial home of some 71,000 less (possibly notional if there is no immediate sale) costs of sale. In the light of the factors described above, Khalim’s assertion that the property must be sold and that he must immediately receive 50% of the proceeds is untenable. The fact that Khalim is the sole owner is not indicative of his share. In fact, in Wachtel v Wachtel(also a case of sole ownership by husband) Lord Denning suggested (@ p.96) that where the needs of wife and children dictated it, there should generally be an outright transfer to the wife. The quid pro quo to the husband would be in the form of relief from responsibility for the mortgage and outgoings and a dramatic reduction in his liability for periodical payments. Similarly, in S v S where the wife had gone on paying the mortgage and outgoings after separation, compensation of the husband in this manner was considered appropriate. However, it should be noted that these cases were decided before the intervention of two influential factors: first, the introduction of the clean break principles described above means that husbands are rarely now exposed to an open-ended commitment to spousal maintenance; second, at the time of Wachtel the courts also had jurisdiction over child maintenance. The advent of the CSA with its formulaic approach means that such maintenance can no longer be mitigated in consideration of the fact that the husband has sacrificed his interest in the former matrimonial home and the children have received a corresponding benefit in the form of a secure home.

The complete extinguishing of the husbands interest is often now frowned upon where the wife is unable to provide at least some recognition of his interest even when the factors described above dictate that she should receive the lion’s share. In Clutton v Clutton the Court of Appeal overturned an order for outright transfer to the wife where the equity in the former matrimonial home was substantial and represented the husband’s only capital asset. Thus in the case of Khalid and Annie where both immediate sale and outright transfer to the wife are inappropriate, how is the court to proceed?

The answer is to be found in the cases of Mesher v Mesher and Martin v Martin which cases give their names to species of orders in which sale is postponed but the interest (usually of the husband) is not extinguished. Mesher Orders provide for the welfare of minor children by postponing sale until they attain the are of 17 years or cease full-time education. Martin Orders (postponement until death, remarriage or other events which cause occupation of the husband’s share in the property no longer to be necessary) are employed in circumstances in which a forced sale upon the children growing up would cause unacceptable hardship to the wife. In Annie’s case, she has at least 11 years to readjust her financial circumstances prior to the house no longer being required for Mehmet so it is probable that a Mesher Order would be appropriate. Even so, the court will balance the shares upon division of the ultimate sale proceeds in accordance with the section 25 criteria. Annie’s weaker financial position together with the fact that she will probably maintain the mortgage and the other outgoings in respect of the property until sale dictates that she should receive a greater than 50% share. While Khalid is being kept out of his money, he will eventually receive a share in an appreciating asset to which he has not directly contributed in the interim.

Financial Provision: Mehmet

Khalim would appear still to be working at Jury’s Hotel and is therefore likely to be in receipt of a salary of at least the 900 per month upon which he started in 1999. Section 27 of the 1973 Act empowers the court to make an order where a party to the marriage has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family and the Children Act 1989, section 15(1), Schedule 1, empowers the High Court, county courts and the magistrates’ courts to make financial provision for children. These provisions remain in force but are severely circumscribed by the Child Support Act 1991. Section 44(1) gives the Secretary of State jurisdiction to make maintenance assessments in favour of a person with care of a child against an absent parent (one who does not live in the same household as the child). Such assessments follow a strict arithmetical formula and (by section 8 of the 1991 Act) largely displace the previous discretion of the court to make maintenance orders having regard to the section 25 criteria. Section 9(2) of the 1991 Act provides that there is nothing in the Act to prevent a parent entering into a maintenance agreement as an alternative to a CSA assessment but the existence of such an agreement does not prevent anyone applying for a maintenance assessment in respect of the child concerned unless the agreement was made before 5 April 1993. Thus Annie may prefer to reach an amicable agreement in respect of maintenance for Mehmet failing which she will have to apply to the CSA. Upon such an application, a calculation will be made by reference to social security regulations of the maintenance requirement for Mehmet. The assessable income of both parents is then considered which consists usually of gross income less exempt income which consists of certain prescribed essential expenses. The assessable income of both parents is then added together and multiplied by a figure prescribed by the regulations (currently one-half). If the result of that calculation is a sum equal to or less than the child’s maintenance requirement, then the absent parent must pay half his assessable income. Annie would be well-advised to reach agreement or apply for an assessment prior to the disposition of her claims for ancillary relief by the court because Mehmet’s contribution (or lack of it) will be an important factor to be considered by the court in the exercise of its discretion.

Removal from Jurisdiction

By virtue of section 2(1) of the Children Act 1989, Khalid will have parental responsibility for Mehmet if he was married to his mother at the time of his birth. If there is any scope for doubt as to the validity of the marriage at his father’s house in Turkey, Khalid will be able to rely upon s.2 of the Legitimacy Act 1976 which provides that so long as the father was domiciled in England or Wales at the date of a valid marriage, both parents will from that date have parental responsibility for the child. Thus, the civil ceremony in 2000 will have that effect. Mehmet will be issued with a passport upon the application of Khalid as a person having parental responsibility. In order to prevent this, Annie would have to obtain an order of the court preventing removal of Mehmet from the jurisdiction and then ask the Passport Agency not to issue a passport. This notwithstanding, Khalid risks criminal sanctions if he removes Khalid from the jurisdiction without Annie’s consent (s.1(2) Child Abduction Act 1984). Thus if Annie decides to withhold her consent and this is not affected by court remedies which might be available to Khalid, the police will be able to arrest Khalid if they have reasonable suspicion that he is about to remove Mehmet from the country and that an offence is therefore likely to be committed. An All Ports Warning may be issued if there is a real and imminent danger of removal. However, these are extreme measures and would only be appropriate in circumstances in which Khalid effectively snatched Mehmet and tried to take him abroad. Annie is best advised to protect Mehmet’s position as well as she can by obtaining an order for residence under s.8 of the Children Act 1989 and a Prohibited Steps Order under the same section restraining removal from the jurisdiction. Alternatively, such a prohibition might be made a condition of a contact order in favour of Khalid. If Annie can demonstrate a legitimate fear that Mehmet may not be returned, she may invite the court to allow the visit only on condition that Khalid lodes a monetary bond at court or executes a charge on his property (if the former matrimonial home is still in his name) which would be forfeit if Mehmet were not returned.

However, upon a consideration of such issues, the court is unlikely to refuse the reasonable request of a parent to take the child abroad for a family visit. In the event of Khalid wrongfully refusing to return Mehmet following the visit, Annie will be assisted by the fact that Turkey is a party to the Hague Convention on the Civil Aspects of International Child Abduction. This is implemented in this jurisdiction by the Child Abduction and Custody Act 1985, Pt 1. The Convention applies where a child under 16 who is habitually resident in one contracting state is removed to another. Even if Khalid had taken the responsible step of obtaining an order for staying contact for the purpose of the trip to Turkey, if he were to retain Mehmet beyond the period stipulated in the order or even, prior to the expiry of that period, takes a decision not to return him, his retention will be wrongful. The Convention is administered by Central Authorities in the signatory countries. Annie would have to the UK Central Authority which is the Lord Chancellor’s Department. Proceedings are peremptory. Under Article 19 of the Convention, courts are forbidden to investigate the merits and are required to return children unless certain special conditions apply. There is no right to give oral evidence and it is seldom heard. Return is mandatory if the child was taken less than 12 months before unless the court is satisfied that prior to removal the applicant was not exercising custody rights, had acquiesced in the retention or unless there is a grave risk of physical or psychological harm or strong objections by a child of sufficient maturity.

Reforms?

The most compelling argument for reform arising from Annie’s situation concerns the impact of the Child Support Act 1991. The spirit of the introduction of the clean break principle was to allow failed marriages to be given a decent burial. The former commonplace situation of divorced spouses remaining financially interdependent – possibly for decades – as a result of periodical payments orders which endured until death or remarriage allowed neither party the opportunity to move on from their failed relationship and provided in many cases a positive disincentive to the recipient of such maintenance to achieve financial independence. Such continuing obligations were not only capable of having an enduring financial impact upon the payer but frequently caused friction and human misery when divorced husbands sought to commence a new family and had to contend with the resentment of the new partner engendered by the impact of a constant drain upon the new family’s finances occasioned by a continuing maintenance obligation. The introduction of the clean break either immediately upon decree or at some defined point in the foreseeable future provided certainty for (usually) wives who received a significant immediate capital benefit in the form of the husband’s interest in the former matrimonial home together with the sense of security for her and the children of the family that this engendered and were not exposed to financial insecurity in the future caused by a poor payer or in a situation in which the payer entirely legitimately and unfortunately lost their income. The removal from the courts of their ability to compensate such husbands for their short term sacrifice by exercising a discretion in favour of a reduced burden of child maintenance militates in favour of the increased use of Mesher and Martin Orders. From the perspective of the husband, even if such an order is made, the interest preserved will only confer a benefit in the future which may be of questionable value if he has by then worked hard to restore his financial position. In the meantime, such husbands – even if they have such a future expectation – remain the victims of the robotic application of arithmetical formulae by the CSA which takes no account of the tangible and valuable benefit that they may have conferred upon their children by relinquishing their interest in the family home. The attempted justification of this prejudice by the argument that in such circumstances the father’s housing costs and this his exempt income will rise diminishing his liability ignores the reality of many such situations.

There is also scope to doubt whether the impact of the Children Act 1989 has reduced parental concerns in situations where inappropriate removal from the jurisdiction is feared. The Act seeks to remove the previous concepts of custody and access which led to the parent charged with daily care of the child being tempted to claim victory by having won the child. While this reform is laudable, the change has made the situation in respect of removal from the jurisdiction less clear. Old-style custody orders contained a standard prohibition upon removal from the jurisdiction. This meant that in the event of a dispute as to proposed travel arrangements, a parent would have to seek the authority of the court. The court would then scrutinise the reasonableness of the request with its paramount consideration being the welfare of the child. In extreme circumstances, the wardship jurisdiction of the High Court could be invoked and once a child was made a ward of court a number of draconian protective measures such as Port Alert could be invoked to safeguard the child. The softer, less adversarial approach of the 1989 Act may be commended for presenting the outcome of disputes as to where the child should live and when he should see the other parent in less absolute terms than the old concepts of custody and access but the dilution of the perception of the right of the custodial parent to control the movements of the child may leave in the minds of potential abductors a lessened appreciation of the seriousness with which the courts view the welfare of the child and the gravity with which interference with appropriate and settled arrangements will be dealt. It is hard to see how the attachment of an old-style restriction upon removal to a modern residence order would lessen the effectiveness of the same or lead to an exacerbation of disputes which are likely already to be entrenched and acrimonious.

Bibliography

• • Cretney, S., Masson, J., Bailey-Harris, R., Principles of Family Law, (7^th Ed., 2003)
  • Hale, B., Pearl, D., Cooke, E., & Bates, P., The Family, Law & Society, Cases & Materials, (5^th Ed., 2002)
  • Smith, R. & Newton, C., Jackson’s Matrimonial Finance and Taxation, (7^th Ed., 2002)
  • Westlaw
  • Lexis/Nexis
  • www.hmso.gov.uk