legal systems and methods

The issues that are going to be addressed with regards to Wendy’s situation in relation to Mark are the divorce, the ownership of the house, the custodial rights of the daughter, the company shares and a breach of confidence. On the other hand, the issue that is going to be discussed about ‘Bye Bye’ magazine is defamation and also the interference of private and family rights.

In regards to the divorce, I would advise Wendy to pursue the matter on the grounds that the marriage has broken down irretrievably. If Wendy can prove the fact that Mark had an extra-marital relationship and has committed adultery where sexual intimacy was present and she finds it intolerable to live with Mark in accordance to Matrimonial Causes Act 1973, section 1(2)(a)1, a divorce may be granted. Furthermore Wendy could use the fact that Mark’s behaviour towards her has also made it intolerable for her to live with him according to the Matrimonial Causes Act 1973, section 1(2)(b)2.

If for some reason it may be difficult to prove the irretrievable breakdown of the marriage necessary for a divorce, Wendy could opt for judicial separation, which is not a divorce, but a marital separation where all marital obligations comes to an end. Wendy and Mark will than have to live for two years separately to obtain a divorce whereby both parties must consent to it.

In an event of a divorce, disputes pertaining to financial issues and children can aggravate the differences between a couple which would be harmful as the couple will normally have to maintain some kind of contact after divorce especially where children are involved. Therefore I would advise Wendy to try mediation, which is a form of alternative dispute resolution to sort out disputes with reference to distribution of the property, child custody and parenting time and child maintenance.

The advantages of mediation is that mediation could bring an agreement in weeks or a few months and will reduce the stress of going through the court and solicitors which would increase legal cost and also drag the process longer. Moreover an agreement made between the couple would be more likely to be kept rather than the one made by a court, which may be harsh on a party. It is a compromised decision made by two parties for the betterment of the future especially where children are involved just like in Wendy’s case.

The disadvantages of mediation is that it can cause a lot of emotional stress as both parties will be seeing each other during the process. On top of that, divorce mediators lack the power to make any binding demands on either party, thus making the success of mediation to depend entirely on the cooperation of both parties. The mediator may not advise an individual entirely on the law and this may cause the person to reach an agreement unaware of their rights that they have lost. Lastly, there is a possibility that the likelihood of reaching an agreement may not happen.

If Wendy is unable to reach an agreement via mediation or decides not to partake in it she will have to apply to the courts for her case to be heard. For Wendy’s financial situation she can apply for a financial order, which is an ancillary relief order. A financial order can be applied for situations where an individual requires a lump sump payment, ownership of property and regular maintenance payments and living expenses to help with children. In Wendy’s case, if she gains custody of Alicia, based on the Children Act 19893, the court can make an order for periodic payments or lump sump payment and property adjustment orders for the benefit of the children.

Wendy has stated that she intends to have sole custody on Alicia. She will first have to try mediation and if she is unable to come to an agreement, she will have to make an application to the court. The court will than look into all aspects and consider what is best for the child.

Furthermore under the Matrimonial Causes Act 19734 and Civil Partnership Act 20045, the courts have wide powers to redistribute property between the spouses and also order a spouse to provide ongoing financial support. In Wendy’s case as she had given up work when she gave birth to Alicia and is unable to continue working due to bad relations with her contacts, Mark may have to give a lump sump order, which is a fixed sum of money which is to be paid from one spouse to another. Under the same act, the court can issue a property adjustment order, which is an order requiring one spouse to transfer all or part of a property. Mark may have to severe his joint tenancy with Wendy and transfer the whole property to Wendy so that she and Alicia can live in it and this will also fulfill Wendy’s intention in keeping the house.

In regards to Wendy’s and Alicia’s situation, before making a decision on the financial situation the court has to consider the factors in section 25(2) of the Matrimonial Causes Act 19736. For example, in section 25(1) of the same act the first consideration is given to the ‘welfare while a minor of any child of the family who has not attained the age of eighteen’7. The court will take into account Alicia’s welfare and decide appropriately. In another section which is section 25(2)(b) it is stated that ‘the standard of living enjoyed by the family before the breakdown of the marriage’8 would be one of the factors that would be taken into account in deciding what order to make. In the case of Dart9 it was said that in appraising a wealthy spouse’s needs the court would take into account the style of life she had enjoyed during the marriage. Since Wendy has been living a glamorous lifestyle ever since she was married, the court will take that into account when deciding the outcome of the proceedings.

Moreover in the case of McFarlane10 that is almost as similar to Wendy’s situation where the couple were involved in a marriage for over 16 years, with three children and both husband and wife were pursuing successful careers when they met. The wife gave up her job to care for the children and house. They had assets around £3 million. It was held that dividing the capital of £3 million would not produce fairness. This could be met only by requiring the husband to make substantial periodic payments to the wife, although the court would consider whether or not to continue the order. The periodic payments were needed to ensure the wife received a fair share to mark her contribution to the marriage and to compensate her for the losses she suffered as a result of the marriage, by giving up her job11. Based on this case law, I am sure Wendy will be able to receive her fair share of the assets and compensation for her contribution to the company and marriage.

The next issue is if Wendy is unable to obtain the house through the divorce and insist of staying in the house, she can request or the court can order her to pay occupation rent to Mark. Based on the case Re Pavlou 12 the husband left the matrimonial home after their marriage broke down, and therefore it is said that occupation rent should be paid to the husband. This is not a rule of law, but merely a prima facie conclusion to be drawn from the facts. Other than that, the other possibility to obtain the house is if Mark is ordered by the court to terminate the co-ownership by releasing his share to Wendy under the Law of Property Act 192513 for the benefit of Alicia.

The next issue is to do with Wendy’s intention in obtaining her full share of the company’s value in cash. Based on the facts, PubRel is a private limited company and therefore shares cannot be sold

to members of the public. Under the Companies Act 200614, if a shareholders agreement or a buyout agreement was made, Wendy would have to follow the terms and conditions on how she should proceed with the shares when a shareholder leaves. On the other hand, if no agreement was made, Wendy may have to try to sell her shares to the other shareholders or to find someone else to sell it to if it is permitted based on their company’s agreement.

The next issue is in regards to the possibility that Mark may have assisted ‘Bye Bye’ magazine in obtaining the pictures and information of Wendy. Based on Mark’s actions, he may have committed a breach of confidence, which meant he disclosed information given in confidence, which is unconscionable. In the case of Duchess of Agryll15, the husband disclosed intimate aspects of the marriage and was said to have committed a breach of confidence.

Based on the matter raised from ‘Bye Bye’ magazine, I would advise Wendy to sue the magazine for breach of confidence and the misuse of private information. Based on the Human Rights Act 1998, everyone has the right to respect for his private and family life, his home and his correspondence and there shall be no interference by a public authority with the exercise of this right except such as in accordance with the law16. The magazine took photos of Wendy’s private life and published other intimate information about her, which is a breach of privacy and misuse of private information. Based on the case of Campbell17, the model Naomi Campbell publicly claimed that she had not use drugs but the defendant newspaper subsequently published articles

disclosing her drug addiction and photos of her leaving a Narcotics Anonymous meeting. This lead to the defendant being charged for a breach of confidence.

The final issue that is going to be dealt with is with regards to defamation caused by ‘Bye Bye’ magazine towards Wendy. I would advise Wendy to claim damages for libel defamation. Libel defamation must be in a permanent form and is always actionable per se, which means it is the conduct, which is wrong, irrespective of whether any damage was done. In Berkoff18, a journalist made remarks about Stephen Berkoff, an actor and director. In her remarks, it was said that she intended to mean that the director was ugly. The Court of Appeal said that words can be defamatory if they hold the claimant up to being scorned, shunned or tend to be excluded by society. ‘Bye Bye Magazine took unflattering pictures of Wendy and wrote information about her life which severed her relationship with her clients. The magazine caused Wendy to be ridiculed and shunned by her clients causing her to have a bad relation with them and being unable to get back to work.

In conclusion, I would advise Wendy to take her time to gather her thoughts, to think things through thoroughly and to look into things in a step-wise manner to ensure she understands the pros and cons of each option that I have laid out above. I would also advice her to proceed with the case starting with a less traumatic step, for example mediation. And above all, I would advise her to make her decisions by taking into account the well being Alicia and what is best for the child.

Bibliography

Cases
Dart v Dart [1996] 2 F.L.R. 286: [1997] 1 FCR 21
McFarlane v. McFarlane [2009] 1 EWHC 891 (Fam)
Pavlou (A Bankrupt), Re [1993] 1 W.L.R.1046 Duchess of Agryll v. Duke of Agryll [1967] 1 Ch.302
Campbell v Mirror Group Newspapers Ltd (Costs) [2005] UKHL 61
Berkoff v. Burchill [1996] 4 All E.R. 1008

Legislations

Matrimonai Causes Act 1973
Children Act 1989
Civil Partnership Act 2004
Law of Property Act 1924
Human Rights Act 1984

Books

Jonathan Hering, Family Law Law, Express, (4th edition, Pearson 2012)
Judith Bray, Unlocking Land Law, (3rd edition, Hodder 2010)
Emily Finch and Stefan Fafinski, Tort Law, Law Express (4th edition, Pearson 2013)

Bibliography: Berkoff v. Burchill [1996] 4 All E.R. 1008 Legislations Jonathan Hering, Family Law Law, Express, (4th edition, Pearson 2012) Judith Bray, Unlocking Land Law, (3rd edition, Hodder 2010) Emily Finch and Stefan Fafinski, Tort Law, Law Express (4th edition, Pearson 2013)