Mr. and Mrs. Pavey were married in 1945 and lived in the same matrimonial house for more than thirty years. Mr. Pavey had provided Mrs. Pavey with housekeeping money for the matrimonial home, but ceased this practice after an incident in April 1974. As a result, Mrs. Pavey successfully applied to the Magistrates’ Court for a maintenance order against her husband. The marriage continued to deteriorate, and Mrs. Pavey applied to the Family Court of Australia for dissolution of the marriage in 1976, which the Court denied. Mrs. Pavey then appealed to the Full Court of the Family Court of Australia, which allowed the appeal. The Court found that the lower court had erred in finding that the marital relationship had not broken down such that dissolution was appropriate. Extending the reasoning in In the Marriage of Todd (No. 2), the Court held that there are several signs indicating a close marital relationship, such as “living under the same roof, sexual relations, mutual protection, nurturing and supporting a child of the marriage, and recognition both in public, and private of the relationship.” However, the Court also found that all the constituent elements need not be shown in establishing the existence of a matrimonial relationship due to the natural ebbs and flows of a marriage, and not every relationship is the same. Therefore, when determining whether separation has in fact occurred, it is more useful to compare and contrast the nature of the relationship before and after the separation. Thus, the Court found that the fact that Mr. Pavey had been ordered to make maintenance payments demonstrated that marriage had broken down, even though both spouses continued to live in the matrimonial home and perform certain chores for each other.
Women and Justice: Keywords
Ms. Shah Bano Begum was married to a lawyer named Mr. Mohd. Ahmed Khan. They lived together for 43 years and had five children. In 1978, Mr. Khan threw Ms. Begum out of the shared household and Ms. Begum applied for maintenance from Mr. Khan under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C, 1973). Pending her application, Mr. Khan dissolved the marriage by pronouncing a triple talaq (divorce on the triple utterance of the word “talaq” by a Muslim husband) and paid Ms. Begum 3000 rupees as mahr (money/valuable property promised to a Muslim woman for her financial security under the marriage contract) and a further sum of maintenance for the iddat period (a period of 3 months that a Muslim woman has to observe before she can remarry after her divorce). Mr. Khan argued that Ms. Begum’s claim for maintenance should be dismissed as Ms. Begum had received the amount due to her on divorce under the Muslim personal law. The lower court granted Ms. Begum’s claim for maintenance, which was set at 179 rupees per month by the High Court in a revision application. Mr. Khan appealed to the Supreme Court in 1985 and the Court held that a payment made pursuant to personal laws cannot absolve a husband of his obligation to pay fair and reasonable maintenance under Section 125 Cr.P.C, 1973 and a husband can be liable to pay maintenance beyond the iddat period.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA, 1986) seemed to overrule the Supreme Court’s decision in Mohd. Ahmed Khan v. Shah Bano Begum. Pursuant to a prima facie reading of the MWPRDA, 1986, a Muslim husband was responsible to maintain his divorced wife only for the iddat period and after such period the onus of maintaining the woman would shift on to her relatives. The matter resurfaced before the Supreme Court in Danial Latifi v. Union Of India when the constitutional validity of the MWPRDA, 1986 was challenged on the grounds that the law was discriminatory and violative of the right to equality guaranteed under Article 14 of the Indian Constitution as it deprived Muslim women of maintenance benefits equivalent to those provided to other women under Section 125 of Criminal Procedure Code, 1973. Further, it was argued that the law would leave Muslim women destitute and thus was violative of the right to life guaranteed under Article 21 of the Indian Constitution. The Supreme Court, on a creative interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the iddat period. The Court based this interpretation on the word “provision” in the MWPRDA, 1986, indicating that “at the time of divorce the Muslim husband is required to contemplate the future needs [of his wife] and make preparatory arrangements in advance for meeting those needs” (at 11). This case is important because, it established for the first time that a Muslim husband’s liability to provide maintenance to his divorced wife extends beyond the iddat period, and he must realize his obligation within the iddat period, thereby striking a balance between Muslim personal law and the Criminal Procedure Code, 1973.
Ms. Quartson filed for divorce, seeking that Mr. Quartson vacate the home they shared during the marriage. Mr. Quartson solely funded the construction of the house, but Ms. Quartson was the sole supervisor of the home’s construction, ensuring that it was built satisfactorily and taking care of their three children while he was away working as a seafarer. Based on these facts, the Superior Court overturned a trial court decision granting the home to Mr. Quartson, instead holding that because Ms. Quartson ran the household and supervised its construction while her husband was away, she should be entitled to a share of the home’s value. Although there may be circumstances that demonstrate clear evidence that a spouse is not entitled to the property, the Court also held that such circumstances did not exist in the present case. The Court found that Ms. Quartson had interest in the property, and granted her the home.
Mrs. Amponsah filed for divorce from her husband Mr. Nyamaah. She asked that a property the couple held be partitioned and that she receive her portion of its value. Mr. Nyamaah asserted that the house belonged to his father, who then granted the land to him. He argued that Mrs. Amponsah had no interest in the house, relying on a precedent which held that “a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. She only had a right to live in the matrimonial home as long as the marriage subsisted.” The court held that Mr. Nyamaah’s father was the owner of the house because the papers were in his name, and rejected the evidence that both parties paid water and electric bills as a rebuttal to the presumption. As such, the house was not subject to a partition by the court, because it “did not belong to the couple so it could not be settled on either of the parties.”
A Burkinabe woman (T.M.) sought divorce from her Chadian husband (T.T.) on the grounds of adultery, abuse and abandonment, she also sought custody of their child. The divorce was granted in favour of T.M. in the court of Ouagadougou. The judge stated that in a divorce case involving spouses of different nationalities the governing law should be that of the common domicile of the spouses. In this case, the last common residence of the spouses was Chad. The Burkinabe judge applied the basic principle of Chadian divorce law that permits divorce for fault attributable to either spouse. The judge stated that the sole responsibility for the divorce lay with T.T. The judge went on to impose Burkinabe law as to custody granting custody of their child to T.M. T.T. was given visitation rights and was required to contribute child support towards the maintenance and education of the children
The Plaintiff (Husband) and the Defendant (Wife) married in 2004. The Defendant, initially from China, went to China on December 25, 2006 without informing the Plaintiff. The Defendant returned to the Republic of Korea on January 10, 2007 but lived with a friend rather than the Plaintiff. In March 2007, the Defendant discovered she was pregnant but did not inform her husband. The Defendant gave birth to the child in Hong Kong on August 12, 2007. After giving birth, the Defendant notified the Plaintiff that a Hong Kong birth certificate requires the father’s signature. The Plaintiff proceeded to travel to Hong Kong and signed the certificate. The Defendant-wife returned to Korea in September 2007 and proceeded to live with a friend. The Defendant attempted to keep in contact with the Plaintiff but the Plaintiff refused to maintain such contact. The Plaintiff proceeded to file a divorce claim in February 2008, alleging that “from December 2006, the contact with the Defendant was completely cut off.” The Defendant countered with her own divorce claim. The Seoul Family Court dismissed the Plaintiff’s divorce claim but upheld the Defendant’s claim, finding that the fundamental breakdown of the marriage lied with the Plaintiff. While the court noted that the Defendant was also to blame, the court emphasized the fact that the Defendant attempted to initiate contact with the Plaintiff after giving birth to their child but the Plaintiff refused to make any such effort in restoring the relationship. Thus, the court ordered the Plaintiff to pay the Defendant three million won as compensation with a five percent interest rate per annum under the Civil Act. Additionally, the court ordered the Plaintiff to pay 400,000 won per month in future child rearing expenses, despite the fact that the Plaintiff was not registered as the child’s father in the Republic of Korea’s family registry. Citing Article 844 (1) of the Civil Act, the court held that there is a presumption that the wife’s husband is the father when the wife gives birth during the marriage. In determining the amount of child rearing expenses, the court considered the age and rearing condition of the child, the age and occupation of the Plaintiff and the Defendant, as well as other circumstances.
The Plaintiff sought a divorce from the Defendant. Upon requesting approval of the divorce from the Defendant, the Plaintiff was slapped by the Defendant. Additionally, the Defendant physically confronted the Plaintiff on a separate occasion, resulting in fractures of the Plaintiff’s face and neck. Despite such physical abuse, the lower court found that the relationship between the Plaintiff and the Defendant did not reach a degree in which it was impossible to restore. On appeal, the Supreme Court reversed, finding that the use of violence in a conjugal relationship cannot be justified. In addition to emphasizing the severity of the Plaintiff’s injuries, the Supreme Court noted that the lower court should have reviewed in detail how the Defendant’s use of violence influenced the marital relationship, whether the marital relationship between the Plaintiff and the Defendant reached a point in which it was impossible to restore due to the loss of love and trust that should form the foundation of the marital relationship, and whether it would prove unbearable for the Plaintiff to remain in the relationship. Unless it can be proven in the affirmative that the parties can restore the relationship and it would not be unbearable for the Plaintiff to remain in such a relationship, the lower court should grant the Plaintiff’s claim for divorce. Thus, the lower court erred when it failed to examine these factors and the extent of responsibility between the Plaintiff and the Defendant. Consequently, the Supreme Court reversed the finding of the lower court and remanded.
Article 1001 of the Civil Code provides that spouses have a “mutual marital obligation to cohabit” absent legally justifiable reasons for not cohabiting. The Court held that a husband’s taking of a concubine violates the “marital obligation of fidelity” and qualifies as a legally justifiable reason for the wife not to cohabit with the husband. Thus, the Court held that a husband’s taking of a concubine releases his wife from her marital obligation to cohabit, but only for the period during which he maintains the concubine.
Mrs. Ana was denied a survivor’s pension because when her husband died they were already divorced. Normally, when a couple divorces and between the divorce and the death of the husband there is a period of more than ten (10) years, the ex-spouse does not have the right to a survivor’s pension. Nevertheless, as the ex-spouse was victim of physical abuse by her ex-husband during their marriage, this period of ten (10) years does not apply. As the ten (10) years period does not apply when there are physical abuses, the woman has the right to obtain the survivor’s pension even if she was divorced from her husband when he died. The decision of the High Court of Andalucía is to recognize the right of Mrs. Ana to a survivor’s pension even if she was already divorced when her husband passed away.
A la señora Ana se le negó la pensión de sobreviviente porque cuando su esposo murió, ya estaban divorciados. Normalmente, cuando una pareja se divorcia y entre el divorcio y la muerte del esposo hay un período de más de diez (10) años, el ex cónyuge no tiene derecho a una pensión de sobreviviente. Sin embargo, como la ex esposa fue víctima de abuso físico de su ex esposo durante su matrimonio, este período de diez (10) años no se aplica. Como el período de diez (10) años no se aplica cuando hay abusos físicos, la mujer tiene derecho a obtener la pensión de sobreviviente, incluso si se divorció de su esposo antes de la murte. La decisión del Tribunal Superior de Andalucía es reconocer el derecho de la Sra. Ana a una pensión de sobreviviente, incluso si ella ya estaba divorciada cuando su esposo falleció.
The appellant appealed the order of a lower court that he pay maintenance Tshs. 10 000 per month to his former wife. He based his appeal on the claims that his adultery was unfairly held responsible for the dissolution of the marriage and that his income could not sustain the maintenance payments dictated by the lower court. He also argued that his former wife had earned no income during the course of the marriage and thus should not be entitled to a share of the matrimonial assets. The Court dismissed the appeal. It pointed out that his wife had demonstrably objected to his adultery with her niece, noting that this was “sufficient cruelty to break the marriage”. It also noted that theirs had been a Christian marriage, which emphasized fidelity. In addition, the Court also cited the case of Bi Hawa Mohamed, which recognized “housekeeping as services requiring compensation” and the Constitution of the United Republic of Tanzania 1977, which barred discrimination, to justify the division of matrimonial assets.
A husband appealed from a divorce proceeding ordering that the divorcing parties share various properties accumulated during the marriage (Ground No. 4). He contended that his wife (the respondent) had no right to such property because she did not produce evidence to prove her contribution to the acquisition of such property. The issues are whether there is an established legal formula for division of property after divorce, and whether spousal contribution plays a role in such division. After reviewing the traditional approach accounting for spousal contribution, the court found that the enactment of the 1995 Constitution drastically changed the wife’s legal position and rights after divorce. Specifically, Article 31(1) provides equal rights to husband and wife during marriage and dissolution. Thus, the court found that marital property jointly belonged to the husband and wife, and thus contribution to the property is irrelevant. Notwithstanding the parties’ right to freely contract prior to a marriage agreement, the court found that, upon dissolution, matrimonial property ought to be divided equally and shared “to the extent possible and practicable”.
The court of first instance decided the divorce of D.B.N. and D.J. on the ground of common fault and placed the minor child in the custody of her father. D.B.N. appealed the decision to the Isai Tribunal, and the appeal court decided to place the minor child in the custody of D.B.N., her mother considering this to be in the best interest of the minor. It explained that the fact that the parents of D.J. were taking care of the minor did not represent sufficient reason for placing her in his custody, as wrongfully held by the court of first instance. The Court of Appeal rejected the appeal of D.J. against the decision of the Iasi Tribunal based on the fact that the minor is attached to her mother and to the domestic violence of her father both against the mother and the minor child.
Court held that divorce obtained by husband under Islamic religious and secular Pakistani law would not be recognized and afforded comity in Maryland. Petitioner argued that because he performed “talaq,” (which under Islamic law, allows a husband to divorce his wife by stating “I divorce thee” three times) the Circuit Court for Montgomery County lacked jurisdiction “to litigate the division of the parties’ marital property.” “The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law.” The Court of Special Appeals agreed and stated, “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.” It explained that the default under Pakistan law is that the wife does not have rights to marital property, while under Maryland law she does. Applying Pakistani law, according to the court, would violate Maryland public policy. The court also noted that a “procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife . . . summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.”
The Court held that a policeman could not be sued under 42 U.S.C. 1983 for failing to enforce a restraining order. Jessica Gonzales was granted a restraining order against her husband during their divorce proceedings. In violation of the restraining order, Gonzales's husband took her three children, and despite repeated efforts by Jessica to have the order enforced, the police took no action. During this time, Gonzales's husband killed the couple's three children. The Court reasoned that because Colorado law did not make enforcement of a restraining order mandatory, there was no individual right to its enforcement. This case was admitted before the Inter-American Commission on Human Rights (as Gonzales v. United States) and is awaiting a decision on the merits.
A Supreme Court holding that "although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to sue for divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse's misconduct" is not unconstitutional. To determine what constitutes "unbearable mistreatment in cohabitation," the courts should take into account the degree of the mistreatment, education levels, social status, and so on, determining if the degree of mistreatment goes beyond the violation of personal dignity and security that would be tolerated by most spouses. Even with regards to cases where a "party temporarily loses control and overreacts to the spouse's misconduct," the precedent does not exclude applying the above factors to determine whether such overreactions threaten the continuity of the marriage.
The petitioners sued to have several provisions of the Divorce Act declared void on the grounds that they discriminated on the basis of sex. The Court held that sections 4, 5, 21, 22, 23, 24 and 26 of the Divorce Act are void in so far as they discriminate on the basis of gender, so the grounds for divorce as listed are available to both sexes and the compensation for adultery, costs against a co-respondent, alimony, and settlement are applicable to both sexes.
The petitioner-wife sought the dissolution of her marriage on the grounds of cruelty and adultery because the respondent assaulted her, locked her out of their matrimonial home, and forced her to have sex with him while he was drunk. The Court found that the petitioner's testimony was believable and established cruelty that endangered her life and health. The Court therefore dissolved the marriage. (Kenya domestic law does not explicitly recognize marital rape.)
In this divorce proceeding, the court reiterated that in situations in which one of the two parents, most commonly the mother, stays at home and thereby forfeits the opportunity to develop a career and earn a living wage, she is entitled to economic assistance from her husband if the marriage ends. This was especially relevant in this case, given that the husband had previously abused his wife, and after initially leaving him, she was forced to return to the marriage for economic reasons.
Reviewing a trial court decision that granted a divorce based on the actions of both parties, the Appellate Court rejected a husband's suit for divorce, and instead granted the divorce based on the wife's counter suit, holding that the marriage failed due to the husband's domestic abuse of his wife.
Al revisar una decisión del tribunal de primera instancia que otorgó un divorcio basado en las acciones de ambas partes, el Tribunal de Apelación rechazó la demanda de divorcio de un marido y, en su lugar, otorgó el divorcio basado en la demanda de la esposa, sosteniendo que el matrimonio fracasó debido al abuso doméstico del marido hacia su esposa.
Ms. Saumya Ann and Mr. Thomas, who were Christians by faith, had applied for a decree of divorce by mutual consent under Section 10A of the Divorce Act. The lower court rejected the application because the Divorce Act requires that the filing couple shall have lived in separate residences for a minimum period of two years, but Ms. And Mr. Thomas had been living apart for only one year. On appeal, the couple argued that the law was a violation of their right to life and liberty guaranteed under Article 21 of the Indian Constitution. They also argued that such law was discriminatory and in violation of Article 14 of the Constitution because Hindus and Parsis were entitled to divorce by mutual consent after living apart for only a year. The Government argued that the law in question pertained to Christians and was their personal religious law, granting it complete insulation from any form of interference by courts. The Kerala High Court rejected the government’s contention. The Court held that the couple was entitled to seek a decree of divorce by mutual consent, that the requirement of two years violated the right to seek a divorce as guaranteed under Article 21 of the Indian Constitution, and that the constitutional right to equality includes the right to divorce as persons from other religions are. Instead of declaring the law unconstitutional, the Kerala High Court read down the two-year requirement to one year, like the laws applicable to Hindu and Parsi divorces. This case is significant because it demonstrates that customs and laws, even if religious in nature, can be invalidated if they violate the fundamentals rights guaranteed by the Indian Constitution.
Karen Atala Riffo, a judge in Chile, and her husband separated in 2002 and agreed that she would retain custody of their three daughters. After a few years, Ms. Atala began to live with her female partner. In response, her husband filed for custody claiming that the mother’s homosexuality was detrimental to the children. The lower court confirmed the grant of custody to the mother, finding that there was no evidence that homosexuality was pathological conduct that would make Ms. Atala unfit as a mother. On appeal, however, the Supreme Court of Chile granted custody to the father, on the basis that the mother’s sexuality would cause irreversible harm to the children’s development. Ms. Atala took the case to the Inter-American Court of Human Rights (“IACHR”), marking the first time that the IACHR heard a case related to LGBT rights. The IACHR held that sexual orientation is a suspect class and that the Chilean courts had discriminated against Atala in the custody case in violation of the American Convention’s right to equality and non-discrimination. In 2012, the court ordered Chile to pay Atala USD $50,000 in damages and $12,000 in court costs. The Chilean government agreed to abide by the IACHR’s ruling.
This memorandum examines the definition of cohabitation and its effect upon agreements between cohabitants in Louisiana, U.S.A.