Family Law Answers to Problem Questions - Free Essay Example

Sample details Pages: 9 Words: 2628 Downloads: 2 Date added: 2017/06/26 Category Law Essay Type Analytical essay Tags: Family Essay Did you like this example? Family Law Introduction The law of divorce is governed under the Matrimonial Causes Act 1973 where it provides the sole ground for divorce, namely that the marriage between Jason and Sandra has broken down irretrievably.[1] Nevertheless, in order to establish irretrievable breakdown, Jason will have to show that one of the five facts listed in section 1(2) of the MCA 1973 has been established on proof (Richards v Richards)[2]. Meanwhile, it is notably that the court in England and Wales is given a wide power in determining the arrangement of children between the Jason and Sandra. Since Jason and Sandra are married, they both have parental responsibility for Joyce and Tom[3]. Don’t waste time! Our writers will create an original "Family Law Answers to Problem Questions" essay for you Create order Their parent responsibilities will not be terminated even if the court grants them a decree of divorce. By virtue of CA 1989, the focus is on the welfares of the children[4] and thus the welfare checklist set out in section 1(3) of CA 1989 will be taken into account by the court in deciding whether to grant share residence to Jason and Sandra and to limit Sandraà ¢Ã¢â€š ¬Ã¢â€ž ¢s contact with Joyce and Tom. Divorce between Jason and Sandra Since the marriage between Jason and Sandra has lasted seven years, Jason is not restricted by the absolute bar on the presenting of petition for divorce within one year of marriage imposed by section 3(1) of the MCA 1973. Jason is allowed to petition for divorce if he is able to establish one of the five facts set out in section 1(2) of the MCA 1973. Adultery and Intolerability: section 1(2)(a) The first possible fact that Jason would rely on is that if adultery and intolerability contained in section 1(2)(a) of MCA 1973. In order to successful in this claim, Jason would have to show that Sandra has committed adultery and he finds it intolerable with her. In Dennis v Dennis[5], adultery is defined as a voluntary act of sexual intercourse between Sandra and another person who is of the opposite sex. On the fact, Jasonà ¢Ã¢â€š ¬Ã¢â€ž ¢s brother saw Sandra and Craig having dinner at a local restaurant and then leaving the restaurant together late at night, holding hands and getting into the car. According to Sapsford v Sapsford[6], It is unlikely that this incident is sufficient to constitute a ground of adultery as there is no evidence of sexual intercourse between Sandra and Craig. However, following the case of Farnham v Farnham[7], Jason would want to raise a rebuttable presumption that Sandra has committed sexual intercourse with Craig by using the circumstantial evidence of inclination and opportunity. However, it is unlikely this claim will be successful as the circumstances does not in any sense suggest th at Sandra and Craig have indulged in sexual intercourse. Further, it must be noted that, adultery is a serious accusation to make and thus the courts have always insisted on strong evidence to allow such accusation.[8] Even if adultery can be established, Jason would have to show that he finds it intolerable to live with Sandra while the intolerability need not follow from Sandraà ¢Ã¢â€š ¬Ã¢â€ž ¢s adultery (Clearly v Clealy)[9]. According to Goodrich v Goodrich[10], the intolerability test is to be accessed subjectively and thus Jason could rely on the fact that he cannot cope with Sandraà ¢Ã¢â€š ¬Ã¢â€ž ¢s increasingly volatile behaviour and claims that it is intolerable to live with Sandra. Unreasonable Behaviour: section 1(2)(b) A more realistic option for Jason is section 1(2)(b) of MCA 1973, where it provides that Jason can rely on the ground of à ¢Ã¢â€š ¬Ã‹Å"unreasonable behaviourà ¢Ã¢â€š ¬Ã¢â€ž ¢ if he can establish that Sandraà ¢Ã¢â€š ¬Ã¢â€ž ¢s behaviour is such that it is unreasonable for him to continue living with her. According to Livingstone- Stallard[11], the focus is not on the gravity of the behaviour per se but on its impact on Jason. Following Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Neill v Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Neill[12], the test under s.1(2) is to be accessed both objectively and subjectively, the objective aspect concerns whether Jason is reasonably expected to stay with Sandra , while the subjective part takes into account the personalities of Jason and Sandra. Since we are told that Sandraà ¢Ã¢â€š ¬Ã¢â€ž ¢s behaviour becomes increasingly volatile, the chance that Jason will succeed in this claim would increase. It is likely that Sandraà ¢Ã¢â€š ¬Ã¢â€ž ¢s unreasonable behaviour can be established, it is then necessary to look at the character of Jason and Sandra and decide whether they can be expected to stay together reasonably (Ash v Ash)[13]. It can be pointed out that Sandra is having an adulterous relationship with Craig and this it might not be reasonable to expect Jason to live with her. At this point, it is arguable that the court will grant a decree of divorce on the ground of s.1(2)(b) based on Sandraà ¢Ã¢â€š ¬Ã¢â€ž ¢s behaviour that makes Jason cannot be reasonably expected to stay with her. Arrangements in relation with Joyce and Tom By virtue of section 2(1) of CA 1989, both Jason and Sandra owe parent responsibilities toward Joyce and Tom. Such responsibility is defined in section 3(1) as à ¢Ã¢â€š ¬Ã‹Å"all rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and its propertyà ¢Ã¢â€š ¬Ã¢â€ž ¢. This right continue even after Jason and Sandra divorce. Nevertheless, under section 1(5) if CA 1989, Jason and Sandra are required to file a statement of arrangements for the children, detailing the measures that have been resolved between them and also the unresolved issues. On the facts, there are two issues to be considered in regards wit h Joyce and Tom: who should the children stay with and the extent of Sandraà ¢Ã¢â€š ¬Ã¢â€ž ¢s contact with the children. In regards with these unresolved issues, the court is able to make the child arrangements order under section 12 of the Children and Families Act 2014 which replaces the orders previously knowns as residence orders and contact orders contained in section 8 of Children Act 1989. The change of terminology supposed to move away from emphasis of à ¢Ã¢â€š ¬Ã‹Å"residentà ¢Ã¢â€š ¬Ã¢â€ž ¢ and à ¢Ã¢â€š ¬Ã‹Å"non-residentà ¢Ã¢â€š ¬Ã¢â€ž ¢ parent and shift the focus onto the childrenà ¢Ã¢â€š ¬Ã¢â€ž ¢s welfare[14]. In the other words, the court will take into account the welfare checklist set out in section 1(3) of the CA 1989. The Welfare checklist includes the ascertainable wishes feelings of Joyce and Tom; their physical, emotional and educational needs; the likely effect on Joyce and Tom in their circumstances; Joyce and Tomà ¢Ã¢â€š ¬Ã¢â€ž ¢s ages, sex, backgroun ds and other relevant characteristics; any harm which they have suffered or are at risk of suffering; and how capable Jason and Sandra and Craig are meeting Joyce and Tomà ¢Ã¢â€š ¬Ã¢â€ž ¢s needs. We are told that Joyce is five years old and Tom is at an age of three. They are still young and might not be able to express their true wishes and feelings with regards to the issue of residence and contact and thus it is unlikely that the court will give weight to their wishes (Stewart v Stewart)[15]. In regards with their needs, even though there no presumption that a childà ¢Ã¢â€š ¬Ã¢â€ž ¢s emotional and physical needs are best met by the mother, the case law has showed a preference for keeping young children with their mother [Re S (a minor) (Custody)][16]. However, in Re H (A Minor)[17], it was held that the time has changed and that many fathers were as capable as mother of looking after small children and this may lead to a decision that in favour of Jason. Further, the facts t hat Sandra is under depression and her plan to move in with Craig, who is also has anger management issues will be taken into consideration under section 1(3)(e) by the court. Lastly, the capabilities of Jason and Sandra in meeting Joyce and Tomà ¢Ã¢â€š ¬Ã¢â€ž ¢s needs will be considered as well. Here, it is likely that Jason would have a good chance of obtaining a residence order as the facts that Sandra and Craig is starting a new relationship and there is no evidence that Craig seems to fit the stereotype of the replacement father. However, even if the court grants a residence order in favour of Jason, the parental responsibility of Sandra towards Joyce and Tom will not be terminated. According to Re R (A Minor)(Contact), Sandra will be granted a generous contact with Joyce and Tom because the court is on the view that à ¢Ã¢â€š ¬Ã‹Å"it is a right of a child to have a relationship with both parents wherever possibleà ¢Ã¢â€š ¬Ã¢â€ž ¢.[18] The fact that both Sandra and Craig a re under anger management course will deny Jasonà ¢Ã¢â€š ¬Ã¢â€ž ¢s claim that Sandra has a mental condition that makes her inappropriate to be in contact with Joyce and Tom. (1500 words) Part 2 Introduction In 1956, the concept of no-fault divorce was first put forward by the Morton Commission in their report on the basis that the divorce law prior to that date has encouraged acrimony between the parties.[19] Such approach was taken by a series of Law Commission reports and led to the Introduction of Divorce Act 1969, which was later consolidated to the legal provision in use today, namely the Matrimonial Causes Act 1973. Section 1(1) of MCA 1973 provides that irretrievable breakdown of marriage is the only ground for divorce and this can only be established if one of the five facts listed in section 1(2) of the MCA 1973. There are two no fault facts that can be relied to establish divorce, namely the two yearsà ¢Ã¢â€š ¬Ã¢â€ž ¢ separation with the respondentà ¢Ã¢â€š ¬ â„ ¢s consent to the divorce [section 1(2)(d)] and the five yearsà ¢Ã¢â€š ¬Ã¢â€ž ¢ separation [section 1(2)(e)]. However, the facts that the number of petition under these no-fault facts are much lesser than the fault facts of adultery [section 1(2)(a)] and unreasonable behaviour [section 1(2)(b)] raises a question that whether the law of divorce in England and Wales can really be described as one of à ¢Ã¢â€š ¬Ã‹Å"no-faultà ¢Ã¢â€š ¬Ã¢â€ž ¢? This essay will argue that identifying who is at à ¢Ã¢â€š ¬Ã‹Å"faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ is still very much a feature of the divorce system in Wales and such element can be proved decisive in determining issues such as division of financial assets, child contact and residence. Such approach was also put forward by John Eekelaar that the law that the current law of divorce is à ¢Ã¢â€š ¬Ã‹Å"deeply corrupting by the law itselfà ¢Ã¢â€š ¬Ã¢â€ž ¢ as the individuals are prevented from accessing to their legal rights conferred on them by law.[20] Application of à ¢Ã¢â€š ¬Ã‹Å"no-faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ divorce In order to obtain a speedy divorce, it is more likely that the parties to a relationship would be more willing to rely on fault- based divorce. The courts have taken a strict approach in allowing a non-fault divorce and the degree of separation does not limit to the normal notion of physical contact but it also involves mental element. For instance, in Mouncer v Mouncer, regardless the facts that the parties were slept in separate bedrooms, it was held that they were living apart as they continued to spend time with their children together.[21] At this point, it can be concluded that the law has failed to provide an effective method of no-fault divorce and this forces the party to a relationship to initiate a divorce claim by alleging fault on the part of the other party. In the other words, the law has failed to fulfil its original objective that to enable the parties of a marriage to end their relationship with minimum bitterness and hostility. Fault remains as an important exists that dominate the law of divorce in England and Wales today. Despite its decisive role in establishing a ground for divorce, the courts have also emphasised à ¢Ã¢â€š ¬Ã‹Å"faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ of the parties in determining the consequences of a relationship breakdown. Division of financial assets and Child contact and residence According to Thorpe J in Dart v Dart, the court are given wide discretion to make orders which suits the needs of individual cases, albeit guided by the various factors set out in the statutory framework. With regards to the financial distribution on marriage breakdown, section 25(1) of the MCA 1973 required the court to take into account to all circumstance of the case, whereby section 25(2)(g) provides that the conduct of the parties is one of the factors that should be considered. Even though, it is arguably that the introduction of no-fault divorce by MCA 1973 reduced the significance of fault in determining the distribution of property, but by reviewing the case law, the outcome of the reform is somehow disappointing. In K v K, the court held that the husband was not entitled to his wifeà ¢Ã¢â€š ¬Ã¢â€ž ¢s assets due to the facts that he had sexually abused his wifeà ¢Ã¢â€š ¬Ã¢â€ž ¢s grandchildren.[22] Also, in H v H (Financial Relief: Attempted Murder as conduct), the wife was given a greater priority in the financial distribution because the husband had attacker her with knives and was convicted of attempted murder.[23] It is apparent that the fact that a spouse has behaved very badly will inevitably affect his or her entitlement to a greater priority in the financial distribution, and this encourages further animosity between the parties. As a result, section 25(2)(g) was highly criticised as it undermines the aim of the law to remove incentive to make allegations of fault in order to divorce peacefully. On the other hand, it must be noted t hat, by virtue of section 2(1) of Children Act 1989, the parental responsibility of the parties remains even after divorce. In determining the issue in relation to child contact and residence, the welfare checklist set out in section 1(3) of CA 1989 plays a prominent role in the decision making. Within the checklist, there is no reference to the à ¢Ã¢â€š ¬Ã‹Å"faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ element at the part of the parents, but the courts are tend to grant the relevant order in favour of the à ¢Ã¢â€š ¬Ã‹Å"innocentà ¢Ã¢â€š ¬Ã¢â€ž ¢ parent with the conception that it will be the childrenà ¢Ã¢â€š ¬Ã¢â€ž ¢s best interest not to stay or even in contact with the à ¢Ã¢â€š ¬Ã‹Å"faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ parent, particularly in the cases of domestic violence. Conclusion In conclusion, it is undeniably that the approach to divorce in England and Wales cannot be described as one of à ¢Ã¢â€š ¬Ã‹Å"no-faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ as the à ¢Ã¢â€š ¬Ã‹Å"faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ element is still playi ng a prominent role in relation with the issues of divorce and its consequences. Nevertheless, we are not arguing a reform towards a purely no-fault divorce because, as according to Deech, this will give too much freedom to the individual and give them a wrongful thought that divorce something can be obtained easily.[24] Instead, we are saying that the system of divorce should be balanced between a mixed mechanism with both à ¢Ã¢â€š ¬Ã‹Å"faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ and à ¢Ã¢â€š ¬Ã‹Å"no-faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ ground for divorce[25] but not letting the à ¢Ã¢â€š ¬Ã‹Å"faultà ¢Ã¢â€š ¬Ã¢â€ž ¢ feature dominate the whole system alone. (1041 words) Bibliography Table of Cases Ash v Ash [1972] 1 All ER 582 Clearly v Clealy [1974] 1 All ER 498 Dennis v Dennis [1955] P 153 Farnham v Farnham [1925] 133 LT 320 Goodrich v Goodrich [1971] 2 All ER 1340 H (A Minor), Re (1980) 2 FLR 253 H v H (Financial Relief: Attempted Murder as conduct) [2006] 1 FLR 990 K v K [2010] EWCA Civ 125 Livingstone- Stallard v Livingstone- Stallard [1974] Fam 47 Mouncer v Mouncer [1972] 115 SJ 327 Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Neill v Oà ¢Ã¢â€š ¬Ã¢â€ž ¢Neill [1975] 1 WLR 1118 R (A Minor)(Contact), Re [1993] 2 FLR 762 Richards v Richards [1972] WLR 1073 S (a minor) (Custody), Re [1991] 2 FLR 388 Sapsford v Sapsford [1954] P 394 Serio v Serio (1983) 4 FLR 756 Stewart v Stewart [1973] 1 Fam 107 Table of Legislation Children Act 1989, s.1 Children Act 1989, s.2 Children Act 1989, s.3 Children Act 1989, s.8 Children and Families Act 2014, s.12 Matrimonial Causes Act 1973, s. 1 Matrimonial Causes Act 1973, s. 3 Matrimonial Causes Act 1973, s. 25 Secondary Sources Books Gilmore S and Glennon L, Hayes and Williamsà ¢Ã¢â€š ¬Ã¢â€ž ¢ Family Law (4th edn, OUP 2014) Articles Deech R, à ¢Ã¢â€š ¬Ã‹Å"Divorce- A Disaster?à ¢Ã¢â€š ¬Ã¢â€ž ¢ [2009] FLR 1048 Eekelaar J, à ¢Ã¢â€š ¬Ã‹Å"Family Law- Keeping us à ¢Ã¢â€š ¬Ã…“On Messageà ¢Ã¢â€š ¬Ã‚ Ãƒ ¢Ã¢â€š ¬Ã¢â€ž ¢ [1999] CFLQ 387 Law Commission, Family Law: The Ground for Divorce (Law Com No 192) [1] Matrimonial Causes Act, s.1(1). [2] [1972] WLR 1073. [3] Children Act 1989, s.2(1). [4] Ibid, s.1. [5] [1955] P 153. [6] [1954] P 394. [7] [1925] 133 LT 320. [8] Serio v Serio (1983) 4 FLR 756. [9] [1974] 1 All ER 498. [10] [1971] 2 All ER 1340. [11] [1974] Fam 47. [12] [1975] 1 WLR 1118. [13] [1972] 1 All ER 582. [14] Children Act 1989, s.1(1). [15] [1973] 1 Fam 107. [16] [1991] 2 FLR 388. [17] (1980) 2 FLR 253. [18] [1993] 2 FLR 762, Butler- Sloss LJ. [19] Royal Commission on Marriage and Divorce (Cmd 9878, 1956). [20] John Eekelaar, à ¢Ã¢â€š ¬Ã‹Å"Family Law- Keeping us à ¢Ã¢â€š ¬Ã…“On Messageà ¢Ã¢â€š ¬Ã‚ Ãƒ ¢Ã¢â€š ¬Ã¢â€ž ¢ [1999] CFLQ 387. [21] [1972] 115 SJ 327. [22] [2010] EWCA Civ 125. [23] [2006] 1 FLR 990. [24] Ruth Deech, à ¢Ã¢â€š ¬Ã‹Å"Divorce- A Disaster?à ¢Ã¢â€š ¬Ã¢â€ž ¢ [2009] FLR 1048. [25] Law Commission, Family Law: The Ground for Divorce (Law Com No 192).

The Telephone, Lewis Carroll - 2226 Words

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Why I Own A Computer Free Essays

Computers are capable of doing more things every year. There are many advantages to knowing how to use a computer, and it is important that everyone know how to use them properly. Using the information I have gathered, and my own knowledge from my 12 years of computer experience, I will explain the many advantages of owning a computer and how they important they are in your everyday life. We will write a custom essay sample on Why I Own A Computer or any similar topic only for you Order Now I hope this helps others understand why computers and the Internet are so important to have access to. Webster’s New World Compact Dictionary defines a computer as â€Å"an electronic machine that performs rapid, complex calculations or compiles and correlates data† (Computer, 1995, p. 226). While this definition gives one a very narrow view of what a computer is capable of doing, it does describe the basic ideas of what I will expand upon. We have been living through an age of computers for a short while now, and there are already many people worldwide that are computer literate. According to Using Computers: A Gateway to Information World Wide Web Edition, over 250 million Personal Computers (PC’s) were in use by 1995, and one out of every three homes had a PC (Shelly, Cashman, Waggoner, 1996,p138). Computers are easy to use when you know how they work and what the parts are. All computers perform the four basic operations of the information processing cycle: input, process, output, and storage. Data, any kind of raw facts, is required for the processing cycle to occur. Data is processed into useful information by the computer hardware. Most computer systems consist of a monitor, a system unit which contains the Central Processing Unit (CPU), a floppy-disk drive, a CD-ROM drive, speakers, a keyboard, a mouse, and a printer. Each component takes a part in one of the four operations. 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Information can be sent over the Internet through communication lines in the form of graphics, sound, video, animation, and text. These forms of computer media are known as hypermedia. Hypermedia is accessed through hypertext links, which are pointers to the computer where the hypermedia is stored. The World Wide Web (WWW) is the collection of these hypertext links throughout the Internet. Each computer that contains hypermedia on the WWW is known as a Web site and has Web pages set up for users to access the hypermedia. Browsers such as Netscape allow me to â€Å"surf the net† and search for the hypermedia of their choice. I have found millions of examples of hypermedia on the Internet. While surfing I also found art, photos, information on business, the government, and colleges, television schedules, movie reviews, music lyrics, online news and magazines, sport sights of all kinds, games, books, and thousands of other hypermedia on the WWW. Through the Internet I can use, electronic mail (E-Mail), chat with other users around the world, buy airline, sports, and music tickets, and shop for a house or a car. All of this, and more, provides me with a limitless supply of information for research, business, entertainment, or other personal use. Online services such as America Online, Prodigy, or CompuServe make it even easier to access the power of the Internet. The Internet alone is almost reason enough to become computer literate, but there is still much more that computers can do. One of my favorite reasons for having a computer is for playing video games. With a PC you can play card games, simulation games, sport games, strategy games, fighting games, and adventure games. Today’s technology provides the ultimate experiences in color, graphics, sound, music, full motion video, animation, and 3D effects. Computers have also become increasingly useful in the music, film, and television industry. I have used my computer to compose music, create sound effects, create special effects, and create 3D life-like animation. I haven t done this but I know its possible to edit previous existing movie and TV footage into new programs, as seen in the movie Forrest Gump. All this and more can be done with computers. I feel that there is truly no time like the present to become computer literate. Computers will be doing even more things in the future and will become unavoidable. Purchasing and learning about a new PC now will help put PC’s into the other two-thirds of the homes worldwide and make the transition into a computer age easier. I believe everyone should own a computer regardless of age. The time is now, and the future is here. How to cite Why I Own A Computer, Essay examples

Business Law IRAC Method - Get a Complete Solution

Question: Discuss about theBusiness Lawfor IRAC Method. Answer: Issue Whether Barry can successfully sue the hiring firm for damages or not? Rule Australian Contract Law and Consumer Law Application Exclusion clause has been regarded as the clause which was frequently printed down and which states that one party to the agreement would not be accountable for some accomplishments. The said clause would be applicable as protracted as they have been appropriately incorporated in the agreement and were not opposing to the rule (Legal Services Commission of South Australia, 2016). As it has been mentioned briefly that in order to be valid an exclusion clause must be: Accurately has been included in the agreement by way of a note; if the section narrates to carelessness, it would be entirely apparent, etc. In the matter of Thornton v Shoe Lane Parking Ltd (1971) 1 All ER 686 it was affirmed that if the exclusion clause was only brought to the notice of the buyer after the procurement then it would not be applicable. To be official in this matter, the exclusion clause should have been on the sign board which the driver would have seen before buying the tickets (Dangelo Legal, 2014). In the matter of Curtis v Chemical Cleaning Co [1951] 1 KB 805 it was concluded that the cleaners have no right to break away from the accountability for the hurt which has been caused to the fabric of the clothing by depending upon the exclusion section because its extent had been tainted by the respondents supporter (Law Teacher, 2016). In the another case of Parker v South Eastern Railway (1877) 2 CPD 416 it was upheld that if an individual who established that he did not see the receipt or did not know that there was any letters printed on the receipt then he was not bound by the stipulations which has been mentioned. Conclusion Therefore, it can be concluded that Barry can claim for the damages by suing the hiring firm which had caused personal injury to him based on the observation in the case of Thornton. References Dangelo Legal. (2014). Validity of Exclusion Clauses in Contract Law. Retrieved on 16th October2016 from: https://www.dangelolegal.com.au/news/validity-exclusion-clauses-contract-law/ Law Teacher. (2016). Exclusion Clause Cases. Retrieved on 16th October2016 from: https://www.lawteacher.net/cases/contract-law/exclusion-clauses-cases.php Legal Services Commission of South Australia. (2016). Exclusion Clauses. Retrieved on 16th October2016 from: https://www.lawhandbook.sa.gov.au/ch10s02s06.php