Category: Family

A B v C B: HL 5 Mar 1885

Husband and Wife – Constitution of Marriage – Nullity of Marriage – Impotency.
Nullity of Marriage – Presumption – Three Years’ Cohabitation.
Personal Bar – Incontinence of Spouse seeking Remedy.
A man of 49 married a woman of 20, and they cohabited for twenty months, occupying the same bed nearly all that time, and then separated finally. During their cohabitation no sexual intercourse took place, though the man had unsuccessfully attempted it during the first two months, and then desisted, owing, as he alleged, to the wife’s coldness and lack of affection for him. In an action of declarator of nullity of marriage at her instance, on the ground of his impotency, it was proved that there was no malformation or sign of ill-health in him. No evidence from a physical examination of the wife was available in the circumstances of the case. The House ( aff. judgment of Second Division) held that on a consideration of the proof the whole facts and circumstances showed that the non-consummation of the marriage was due to impotency on the part of the man, and gave decree of nullity of marriage accordingly.
The doctrine of the Canon law that impotency will be presumed from non-consummation during a cohabitation of three years has not been followed in Scotland. Assuming it to be applicable, it is merely presumptive evidence, and other evidence may be adduced and founded on where there has not been such cohabitation as to raise it.
The action before the House was not raised till after the wife had given birth to an illegitimate child, and had been served with an action of divorce, to which it was raised as an answer. Held that she was not barred from raising the action, and that there is no doctrine of ‘sincerity’ requiring it to be shewn that the only motive for raising the action is the existence of the impotency complained of.

Judges:

Lord Chancellor, Lords Watson, Bramwell, and Fitzgerald

Citations:

[1885] UKHL 461, 22 SLR 461

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 05 July 2022; Ref: scu.637750

Parish of Rutherglen v Parish of Glasgow: HL 15 May 1902

Held ( rev. decision of the Court of Session) that while the marriage continues undissolved the deserted wife of a man who has a settlement in Scotland cannot acquire an independent residential settlement for herself.

Judges:

Lord Chancellor (Halsbury) and Lords Macnaghten, Shand, Davey, Brampton, Robertson, and Lindley

Citations:

[1902] UKHL 621, 39 SLR 621

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 05 July 2022; Ref: scu.630797

Blair and Others v Sir William Moncrieff, Bart: HL 5 Jan 1766

Contravention of Marriage Contract – Service – Minority – Passive Title – Ratification.- 1. Held that the heir of the marriage is entitled to reduce a deed executed in fraud of the marriage contract, without expeding a general service; 2. Held such heir is entitled to set aside a general service expede in his name in minority, to his hurt and prejudice, in so far as it made him universally liable for his father’s debts; 3. Also held, that as his ancestor died in apparency in regard to Moncrieff estate, he was entitled to pass him over and serve heir to his grandfather, without being liable for the debts; and as to the other provision, or estate of andpound;5555. 11s. 1d., and 100,000 merks, he was not liable passive, he not having taken benefit from that estate, and that a sum of andpound;2500 received to ratify these did not make him liable passive.

Citations:

[1766] UKHL 2 – Paton – 126, (1766) 2 Paton 126

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 04 July 2022; Ref: scu.560634

Chapman v Kawash: FD 19 Dec 2014

Application by a wife for permission to appeal, and permission to appeal out of time, from a consent order making financial provision for her . . The essential facts, for the purposes only of today and this judgment, are that the parties were married to each other for a relatively few years. They have no children. Unfortunately, their marriage broke down and the wife began proceedings for divorce and a financial remedy order. At that time she was acting in person.

Judges:

Holman J

Citations:

[2014] EWHC 4481 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 04 July 2022; Ref: scu.547113

Charman v Charman: CA 20 Dec 2005

The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family assets.
Held: Asking what would be the approach of an English court, a request would not be met if it was a fishing expedition, but if only oral evidence was required the question was whether there was reason to believe that he had knowledge of matters relevant to the issues at trial. The letters of request were to be subject to a minor modification, but otherwise the appeal against the order granting it was rejected.

Judges:

Mr Justice Wilson Lord Justice Lloyd Sir Mark Potter President of the Family Division

Citations:

[2005] EWCA Civ 1606

Links:

Bailii

Statutes:

Family Proceedings Rules 1991 3.1, Matrimonial Causes Act 1973 25(2)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Browne v Browne CA 1989
The court considered under what circumstances money held in trust for a party could be included within assets to be considered in an application for ancillary relief in family proceedings.
Held: The question is more appropriately expressed as . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Khanna v Lovell White Durrant (A Firm) ChD 19-Jul-1994
The practice of requiring a third party to produce documents with a subpoena ad duces tecum at an interlocutory stage was a good one and was designed to produce evidence at an earlier stage, reducing costs. No greater inconvenience was suffered by . .
Cited – In re Westinghouse Uranium Contract HL 1978
‘The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested’ Lord Fraser said: ‘in judging the nature of the letters rogatory . .
Cited – In re Asbestos Insurance Coverage HL 1985
A London insurance brokerage company had been ordered to produce documents pursuant to a letter of request issued by a Californian court in proceedings brought by manufacturers of asbestos against their insurers. The 1975 Act empowered the court to . .
Cited – In re State of Norway’s Application (No 1) CA 1987
There were taxation proceedings in Norway. One question was whether the Norwegian taxpayer controlled a trust which owned some shares. Letters rogatory issued by the Norwegian Court requested the oral examination of two witnesses in the United . .
Cited – In re State of Norway’s application (Nos 1 and 2) HL 1989
The House considered an application by a foreign state seeking assistance in obtaining evidence here to be used in enforcing its own revenue laws at home.
Held: Rule 3 of the Convention encapsulated a ‘fundamental rule of English Law’, but did . .
Cited – Panayiotou and Others v Sony Music Entertainment (UK) Ltd ChD 21-Jul-1993
The rules do not limit the inherent jurisdiction of the court to make requests to foreign courts to ensure the production of documents from abroad. There is no logical reason why the principles by reference to which the court determines whether, and . .
Cited – Netbank v Commercial Money Center 2004
(Supreme Court of Bermuda) Before the court was an issue as to the enforcement of a letter of request from Ohio for oral evidence to be taken from employees in Bermuda of an insurance company. The island’s Evidence Act 1905 had provisions identical . .
Cited – Letterstedt v Broers PC 22-Mar-1884
(Supreme Court of the Cape of Good Hope) Lack of harmony may be of itself a good reason for a trustee to resign or be dismissed. Lord Blackburn approved a passage in Story’s Equity Jurisprudence, s 1289: ‘But in cases of positive misconduct, courts . .
Cited – Morgan v Morgan 1977
In ancillary relied proceedings the wife’s father was ordered to disclose his testamentary intentions toward his daughter.
Held: Such an order was oppressive, and he should be protected against it. . .
Cited – Parra v Parra CA 20-Dec-2002
The court considered the division of family assets on an ancillary relief application where a family company assets were involved but the assets had been divided equally: ‘The parties have, perhaps unusually, ordered their affairs during the . .
Cited – Zakay v Zakay 1998
In financial proceedings in England following divorce the wife alleged – and the husband denied – that he was the beneficial owner of shares held by a Gibraltarian trust company. The English court had ordered the issue of a letter of request to the . .
Cited – D v D (Production Appointment) FD 29-Nov-1995
An accountant’s professional privilege was overborne by the court, and a wider disclosure was approved. The court set a wide boundary around the scope of the documents which he was ordering the wife’s accountant to produce: ‘If the boundary is set . .
Cited – B v B (Matrimonial Proceedings: Discovery) CA 1978
The wife applied for ancillary relief, and sought disclosure from a third party.
Held: Whilst a party must disclose all documents in his possession, custody or power the court has a discretion whether to order inspection. ‘Custody’ in RSC Ord . .
Cited – Frary v Frary CA 1993
A spouse’s wealthy cohabitant, who had been ordered to produce evidence not just as to the support provided by her (or him) to the spouse but as to her (or his) overall resources may be able successfully to invoke the courts jurisdiction to protect . .

Cited by:

See Also – Charman v Charman (No 2) FD 27-Jul-2006
Ancillary relief claim – very substantial assets. The court provided for a possible substantial debt by a reverse contingent lump sum. . .
See Also – Charman v Charman CA 11-Dec-2006
Ancillary relief – substantial assets – application by the respondent wife in relation to an appeal by the appellant husband from a judgment and order in ancillary relief proceedings. The judge ordered the husband to pay pounds 40 million to the . .
See Also – Charman v Charman (No 4) CA 24-May-2007
The court considered what property should be considered in an ancillary relief claim on divorce, and said: ‘To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 04 July 2022; Ref: scu.236566

Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe: CA 6 Dec 2005

The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to marry. The marriage took place about one year before the death.
Held: ‘in relation to claims for financial provision and property adjustment in proceedings between divorced former spouses, the correct approach for the court to adopt, following the decision of the House of Lords in White v White [2001] 1 AC 596 is to apply the statutory provisions to the facts of the individual case with the objective of achieving a result which is fair, and non-discriminatory.’ though ‘there is, self-evidently, a profound difference between a marriage which ends through the death of one of the spouses, and a marriage which ends through divorce.’ Complaint had been made that the judgment given was unstructured and did not explain how the conclusion had been reached. That criticism was correct, and the judgment could not stand. The estate was of sufficient size to satisfy the dependency needs of the other family members, some with disabilities, without the need for recourse to any share which might be payable to the widow. ‘the sum of andpound;600,000 proposed by Wall LJ is not and cannot be the product of a precise calculation. It is, however, for the reasons explained by him, an approximation which involves a departure from starting point of equality of division amply justified by a number of factors: the size of the net estate, Mrs Cunliffe’s reasonable housing and financial needs, her financial resources, in particular her entitlement to andpound;226,000 by survivorship, and the agreement that she will recoup her substantial costs of the proceedings from the estate.
The substituted sum also takes proper account the statutory guidelines to which the court is directed to have regard, in particular Mrs Cunliffe’s age and the very short duration of her marriage to the deceased. The shortness of the marriage limited the opportunities available to Mrs Cunliffe to make a significant contribution to the welfare of the deceased. The size of the amount awarded by the judge indicates that he could not have had any real regard to the short duration of the marriage, there being only a passing mention of the factor in paragraph 49 of his judgment. He noted the factor without attempting to explain what effect it had on his assessment of the lump sum in this case, as compared, for example, with a marriage lasting for 10 or 20 years.
For the above reasons this is one of those unusual cases in which this court is entitled to interfere with the judge’s discretion relating to reasonable financial provision under the 1975 Act. ‘

Judges:

Mummery LJ, Wall LJ, Moore-Bick LJ

Citations:

[2005] EWCA Civ 1508, [2006] Ch 361, (2005-06) 8 ITELR 855, [2006] 1 FLR 745, [2006] Fam Law 263, [2006] 2 All ER 115, [2005] 2 WLR 481, [2005] 3 FCR 593, [2006] WTLR 29

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1(1)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .

Cited by:

Cited – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of pounds 50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, and . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 04 July 2022; Ref: scu.235723

Manby v Scott: 1663

Since a husband owed it to the community to sustain himself, he was under the inevitable compulsion to sustain his other self, his wife, who was ‘bone of his bone, flesh of his flesh, and no man did ever hate his own flesh so far as not to preserve it.’ The marriage and its incidents were exclusively within the jurisdiction of the Ecclesiastical Courts, so that for the common law to have entertained a claim for maintenance by the wife against her husband would have amounted to an invasion of the spiritual jurisdiction. A wife could neither claim nor enforce any right to maintenance in the civil courts.

Citations:

(1663) 1 Mod 124

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 04 July 2022; Ref: scu.194386

Regina v Bretton: CACD 13 Jan 2010

The defendant appealed his sentence for breach of non-molestation orders, arson, and breaches of anti-social behaviour orders.

Judges:

Hooper LJ

Citations:

[2010] EWCA Crim 207, [2010] 2 FLR 73, [2010] Fam Law 451

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Sentencing, Contempt of Court, Family

Updated: 04 July 2022; Ref: scu.426477

Suter v Suter and Jones: CA 19 Dec 1986

H had been granted a divorce on the grounds of W’s adultery. The court considered how the clean break provisions could be incorporated in a situation with children and how conduct might affect periodical payments.
Held: The duty to consider a clean break applies whether or not there are children. The judge had erred in saying that a clean break was not possible until the children were grown up. The duty to consider the children first, was neither a duty to consider them first in time, nor to give them paramount importance. In fact the phrase has been criticised as meaningless. Doing the best the court could ‘the welfare of the children cannot override the duty to be just and reasonable as between the former spouses, as required by section 25A. ‘ As to conduct: ‘It is right, having regard to the wife’s conduct in inviting the co-respondent effectively to live in the matrimonial home without requiring him to contribute anything to its costs, to reduce the periodical payments to her so as to reflect the amount which the co-respondent could and should contribute. Such conduct can and should be taken into account under section 25(1) in assessing the appropriate level of periodical payments’
‘The question was what if any effect the conduct should have for the purposes of section 25. The question which arose for the purpose of section 25 was whether it was inequitable to disregard the conduct of the wife, who had invited the co-respondent to spend most evenings and nights at her home. It was agreed before the judge that evidence before him should be limited to the issue as to what if any contributions the corespondent was making, or was likely to make, to the finances of the wife. She described the situation in the words ‘We are lovers. We sleep together every night except when he goes off to Kent with friends. ‘ She did not ask him for money and he made no financial support for the household. ‘ It was appropriate to make an order on the basis that the co-respondent should be making a contribution to the household. H’s appeal succeeded nd the order varied, inter alia to reduce the maintenance payable to W to andpound;1.00 per year.

Judges:

May LJ and Sir Roualeyn Cumming-Bruce

Citations:

[1987] Fam 111, [1987] 3 WLR 9, [1987] 2 All ER 336, (1987) 151 JP 593, [1987] 2 FLR 232, [1987] Fam Law 239, (1987) 151 JPN 174, (1987) 84 LSG 1142, (1987) 131 SJ 471, [1986] EWCA Civ 7

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 25(2) 25A, Matrimonial and Family Proceedings Act 1984

Jurisdiction:

England and Wales

Family

Updated: 04 July 2022; Ref: scu.235276

CF v Secretary of State for the Home Department: FD 30 Jan 2004

The court considered the choice or procedures arising in relation to a baby ward of court living with its mother in prison. The sentence to be served would take the child beyond the maximum age provided for in mother and baby units.

Judges:

Munby J

Citations:

[2004] EWHC 111 (Fam), [2004] 2 FLR 517

Links:

Bailii

Statutes:

Prison Rules 1999

Jurisdiction:

England and Wales

Citing:

Cited – Practice Direction (Family Proceedings: Court Bundles) 10-Mar-2000
There should at be lodged with the court a summary of the background to the hearing; a statement of the issue or issues to be determined; a summary of the order or directions sought by each party; a chronology; and skeleton arguments. . .

Cited by:

Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Prisons

Updated: 04 July 2022; Ref: scu.231166

Wilkes v Ballam Delaney Hunt (A Firm): CA 18 Aug 2005

The appellant sought leave to appeal out of time against an order dismissing his action against the solicitors who had acted for his former spouse in matrimonial proceedings.
Held: Leave was refused.
A solicitor owes his duty to his own client, not to the opponent. The action and the appeal were totally without merit. The claimant sought also to appeal against his undertaking given to avoid a civil restraint order. The rules now required the court in any event to consider such an order where it found an application to be totally without merit. In the circumstances the applicant had not broken the undertaking given, and no restraint order was made.

Judges:

Lloyd LJ

Citations:

[2005] EWCA Civ 1104

Links:

Bailii

Statutes:

Access to Justice Act 1999 55, Civil Procedure Rules 52.10(5)

Jurisdiction:

England and Wales

Family, Civil Procedure Rules, Legal Professions

Updated: 03 July 2022; Ref: scu.229865

Bond v Leicester City Council: CA 23 Oct 2001

The applicant had been the victim of domestic violence. She applied to be rehoused, but the authority considered her to be intentionally homeless, since she could have applied to court for an injunction excluding the violent partner.
Held: That approach was incorrect. Although remedies might be available, these could be uncertain, and difficult for some people to achieve, and particularly so where there were children, and the courts would otherwise encourage attempts by the parties to avoid bitterness so as to encourage contact. There is still no presumption that contact with a violent parent was wrong.

Judges:

Lady Justice Hale and Mr Justice David Steel

Citations:

Times 23-Nov-2001, Gazette 06-Dec-2001, [2001] EWCA Civ 1544, [2002] 1 FCR 566, [2002] HLR 6

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Yemshaw v London Borough of Hounslow SC 26-Jan-2011
The appellant sought housing after leaving her home to escape domestic violence. The violence was short of physical violence, and the authority had denied a duty to rehouse her. She said that the term ‘domestic violence’ in the Act was not intended . .
Lists of cited by and citing cases may be incomplete.

Children, Housing, Family

Updated: 03 July 2022; Ref: scu.166859

Earl of Kintore v Countess-Dowager of Kintore and Others: HL 29 Jun 1886

Parent and Child – Legitim – Discharge of Legitim – Antenuptial Contract of Father – Heir-Apparent – Aberdeen Act (5 Geo. IV. c. 87) – Entail Amendment Act 1848 (11 and 12 Vict. c. 36).
By antenuptial contract of marriage an heir of entail in possession bound himself and the heirs of entail who should succeed him in the entailed estates to pay to the child or children of the marriage, other than and excluding the heir who should succeed to him in the entailed estates, certain provisions. Tutors and curators were appointed to such of the children of the intended marriage as should be in pupillarity or minority at the husband’s death, and they were directed to maintain and educate suitably the heir who should succeed him, and keep up an establishment for him till he reached majority; ‘which provisions before conceived in favour of the children of this marriage are hereby declared to be in full satisfaction to them of all bairns’ part of gear, legitim, portion natural, security,’ and co. The eldest son of the marriage succeeded under the entail and also claimed legitim. Held ( aff. judgment of First Division) that the marriage-contract contained no provision for him in lieu of legitim, and therefore that he was not excluded by the contract therefrom. Held, further, that the provisions for children made by the father in his marriage-contract under the Aberdeen Act not being or being capable of being (without the father’s consent) available to the eldest son, they were not effectual to confer an interest in him under the contract in consideration of which legitim could be excluded; and (2) that assuming that under the Entail Amendment Act 1848 the father could have disentailed the estates, a right to share in the marriage-contract fund provided to children would not thereby have been conferred upon the heir, and therefore that in no view was anything provided under the contract in his favour in discharge of legitim.

Judges:

Lord Chancellor Herschell, Lords Blackburn and Watson

Citations:

[1886] UKHL 877, 23 SLR 877

Links:

Bailii

Jurisdiction:

Scotland

Land, Family

Updated: 03 July 2022; Ref: scu.637734

Purba v Purba: CA 15 Jan 1999

Application for leave to appeal against award in ancillary relief case – granted.

Citations:

[1999] EWCA Civ 578

Jurisdiction:

England and Wales

Cited by:

See Also – Purba v Purba CA 1-Jul-1999
The court considered an appeal against an award in an ancillary relief case on divorce. The husband had it was thought deliberately hidden assets, but the husband claimed that the wife’s budget was excessive. Thorpe LJ said: ‘I see no force in the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 July 2022; Ref: scu.145493

H v H: FD 27 Nov 2014

Application under section 27 of the Matrimonial Causes Act 1973: ‘That section of the act was recently described in the Supreme Court as ‘moribund’. This case has demonstrated that that is not necessarily the case.’

Judges:

Booth HHJ

Citations:

[2015] EWHC B24 (Fam)

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 27

Jurisdiction:

England and Wales

Family

Updated: 01 July 2022; Ref: scu.559008

S v S (Divorce: Distribution of assets): FD 10 Nov 2006

The reference in White v White to the need for a judge in ancillary relief applications always to refer back to the yardstick of equal distribution of all the assets did not mean that the judge had to include in such calculations non-matrimonial assets.

Judges:

Burton J

Citations:

Times 15-Jan-2007

Jurisdiction:

England and Wales

Citing:

Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 July 2022; Ref: scu.247966

P v P (Inherited Property): FD 2005

The court considered an application for ancillary relief where one party had inherited a family farm.
Held: The nature and source of the parties’ property are matter to be taken into account when determining the requirements of fairness.

Judges:

Munby J

Citations:

[2005] 1 FLR 576

Statutes:

Matrimonial Causes Act 1973 23

Jurisdiction:

England and Wales

Cited by:

Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Rossi v Rossi FD 26-Jun-2006
W sought to challenge transactions entered into by H anticipating ancillary relief proceedings on their divorce. Nicholas Mostyn QC J said: ‘While of course no rigid rule can be expressed for the infinite variety of facts that arise in ancillary . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 July 2022; Ref: scu.242161

Stylianou v Chimarides: CA 29 Jul 2005

The defendant sought leave to appeal. In ancillary relief proceedings in a divorce, the parties reached a settlement, but the wife claimed that the husband had not declared the recent death of his mother, which was material non-disclosure. The husband now appealed against the leave given to the wife to appeal out of time against the consent order.
Held: The court was concerned only with the leave given to the wife to appeal. This was a matter for the judge’s discretion. His appeal would have little chance of success, and the request for permission to appeal was denied.

Judges:

Black J

Citations:

[2005] EWCA Civ 1057

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 01 July 2022; Ref: scu.229332

Ellis v Ellis: CA 24 Jun 2005

The defendant appealed a suspended committal order in respect of his failure to pay maintenance. The husband had unilaterally reduced payments at the same time as withdrawing his application to vary the order.
Held: The defendant simply piled assertion upon assertion and without any evidence. The judge’s decision was precisely correct.

Judges:

Jacob LJ, Wall LJ

Citations:

[2005] EWCA Civ 853

Links:

Bailii

Statutes:

Debtors Act 1869

Jurisdiction:

England and Wales

Citing:

Cited – Mubarak v Mubarak FD 30-Nov-2000
In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful . .
Cited – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .

Cited by:

Cited – Rundell v Rundell CA 14-Dec-2005
The former husband appealed an order for his committal to prison on a judgment summons in default of clearing arrears of maintenance payments. He said that the proceedings were criminal in nature and offended his rights to a fair trial under the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 July 2022; Ref: scu.228915

K (formerly G) v G: FD 28 Jan 2004

In an ancillary relief action it had been anticipated that the husband would at a future time inherit a substantial amount. An order was made but an express order for a capital sum was adjourned. The wife then remarried, and later, and after the wife’s second marriage had come to an end, the former husband did receive the inheritance. The former wife sought to pursue the claim, and the husband argued that her subsequent marriage barred the action.
Held: The wife’s claim was not barred. The rationale behind the original order was that matters should be left unconcluded until the inheritance. Neither precedent nor statute gave assistance. The wife’s contribution had been particularly effective because of the support she had given to the family’s children. That element which was to have been reflected in the original claim was not affected by the subsequent remarriage, and in those circumstances the former wife’s claim should be allowed to go ahead.

Judges:

Singer J

Citations:

Times 13-Feb-2004, Gazette 26-Feb-2004

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Family

Updated: 30 June 2022; Ref: scu.193475

In re G: FC 22 Dec 2020

Application by the local authority for care and placement orders with respect to a little girl, G who is 15 months old

Judges:

Hon Mrs Justice Judd

Citations:

[2020] EWFC 94

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 30 June 2022; Ref: scu.657308

Welch v Tennent: HL 28 Jul 1891

Husband and Wife – Foreign – Heritable Estate of Wife in England – Sale of Wife’s Estate with her Consent – Husband’s Right to Proceeds – Jus Mariti – Donatio inter virum et uxorem – Surrogatum – Act for the Abolition of Fines and Recoveries (3 and 4 Will. IV. c. 74).
The wife of a domiciled Scotsman, with concurrence of her husband, sold a heritable estate belonging to her in England and acknowledged the conveyance before two commissioners appointed under the Act for the Abolition of Fines and Recoveries (3 and 4 Will. IV. c. 74), and ‘declared that she did intend to give up her interest in the said estate without any provision made for her in lieu thereof.’ Her husband received the price, and applied it to his own purposes. The spouses subsequently separated by mutual consent, and the wife executed a deed of revocation of all her donations and provisions in favour of her husband. She then sued him for declarator that the amount in his hands was a surrogatum for her heritage and not subject to the jus mariti.
Held ( rev. the decision of the First Division) that the price of the wife’s interest in the estate did not belong to her as a surrogatum for her heritable estate.

Judges:

Lords Herschell, Watson, and Morris

Citations:

[1891] UKHL 953, 28 SLR 953

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 30 June 2022; Ref: scu.636784

A v B: FD 31 Jul 2000

Husband and wife pursued ancillary relief applications, but an issue arose as to copyright, and it was transferred to Chancery. W kept a personal diary. H read it after W said she wanted a divorce. He read passages and had extracts photocopied before returning it. He still retained two pairs of copies and a further copy of one page. W sought delivery up of the retained copies, as being made in breach of copyright and of confidence. The application was for summary judgment on the basis of affidavit evidence only.
Held: They had been relevant to the matrimonial proceedings. H denied that it was confidential, and submitted that an order for delivery up requires some breach of confidence to be shown. Lloyd J said: ‘It seems to me that the relevance of the need to specify what the information which is confidential is and accordingly be protected may arise in relation to a situation of this kind, as it certainly does in a commercial situation. But it is relevant mainly and perhaps only, to a claim for an injunction. To order delivery up, is concerned, the court must be satisfied that the material includes something which is confidential, but it would be a defence that on the same page there is also a statement of something which is in the public domain’. The pages were confidential. H submited that the confidentiality would justify an order if the material might later be put in evidence. Lloyd J declined summarily to order summary delivery up for copyright breach since ‘copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings’. The evidence justified proceeding on the basis that when the photocopies were made W had already said that she wanted the divorce and that he foresaw that they might be useful as evidence. The judge did not decide what the true effect of section 45 was. He said: ‘I regard it as sufficiently well arguable that it is not limited to copies made after the issue of the appropriate originating process, and accordingly that whether a copy made before that moment is made for the purposes of proceedings which are in fact commenced thereafter is to be determined by an objective assessment, which no doubt would have regard to the evidence of the copier but would not be limited to that’. On the claim in breach of confidence, Lloyd J declined to order delivery. The jurisdiction was equitable. W was required to lodge all copies which were in his custody power or possession with his solicitors subject to an undertaking that they were only used for the purposes of proceedings pending between the parties: ‘It seems to me that . . . . though the applicant is not entitled to have the documents back as of right, she is entitled to have them safeguarded and their use controlled in this way’.

Judges:

Lloyd J

Citations:

Unreported, 31 July 2000

Statutes:

Copyright Designs and Patents Act 1988 45(1)

Jurisdiction:

England and Wales

Cited by:

Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 30 June 2022; Ref: scu.270365

Whyte v Whyte: CA 21 Jul 2005

A decree of divorce had been made in Texas, and after the wife had breached a court order by fleeing to Russia with a child of the family, a freezing order was made against the wife in respect of property in London. The husband now appealed an order declining to enforce the Texas order for want of jurisdiction.
Held: The court had jurisdiction, and the appeal succeeded. The wife claimed that she had taken no part in the enforcement proceedings in Texas and should not be bound by them, but she had already submitted to the Texas jurisdiction by her involvement in the earlier related proceedings.

Judges:

Thorpe LJ, Buxton LJ, Neubergeer LJ

Citations:

[2005] EWCA Civ 858, Times 23-Aug-2005

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Murthy and Another v Sivasjothi and Others CA 30-Oct-1998
Where a foreign defendant had accepted jurisdiction of a competent foreign court, that submission operated similarly in respect of a claim by a co-defendant in that case against the party in a related matter and the judgment was enforceable here. . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 30 June 2022; Ref: scu.229699

Harb v King Fahd Bin Abdul Aziz: CA 26 May 2005

Citations:

[2005] EWCA Civ 633

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Harb v King Fahd Bin Abdul Aziz CA 26-May-2005
The wife sought an order for reasonable maintenance from His Majesty King Fahd Bin Abdul Aziz. He replied that he was immune from suit.
Held: The King as king was immune. The judge at first instance had been wrong to give the case fictitious . .
Lists of cited by and citing cases may be incomplete.

Family, Constitutional

Updated: 30 June 2022; Ref: scu.226056

Williams v Lindley (formerly Williams): CA 10 Feb 2005

The husband sought to re-open the consent order made on the divorce. The wife had been employed by a widower as his housekeeper. After separating from the husband she moved into the widower’s house with both the children. She sought a transfer of the husband’s share of the matrimonial home to her arguing that she wished to return there with the children. Her solicitors categorically stated that her relationship with the widower was merely as employmee. The order gave her a lump sum of andpound;125,000 being a 70:30 split of the assets. Within a few months the wife’s employment was terminated and the wife and former employer were married. He appealed refusal of permission to apply to set the order aside.
Held: The judge had asked what might be the order finally made. That was incorrect. The issue was whether any supervening event fundamentally undermined the consent order. Here, a lump sum order was based upon the wife’s need to provide a home for herself and for the children. Within a month she had announced her engagement to Mr Lindley. It was a plain case for the grant of leave.
Thorpe L.J said: ‘The main foundation for the lump sum order of andpound;125,000 was the wife’s urgent need, as she put her case, to re-house herself and the children if she were not to have the family home. That foundation was destroyed within one month by the wife’s engagement to Mr Lindley.’

Judges:

Thorpe LJ, Smith LJ, Buxton LJ (Dissenting)

Citations:

[2005] EWCA Civ 103, Times 23-Mar-2005, [2005] 2 FLR 710

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Smith v Smith CA 20-Feb-1991
The wife committed suicide six months after the ancillary relief order. The husband sought to re-open out of time the ancillary relief order and to reclaim the sum paid from the estate.
Held: Where an ancillary relief order came to be . .

Cited by:

Cited – Dixon v Marchant CA 24-Jan-2008
The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 29 June 2022; Ref: scu.224373

J and B: CA 7 Nov 2002

The Crown prosecution service sought judicial review of a decision by the registrar of marriages to celebrate the marriage between the parties. He was due to face trial for murder, and she was to give evidence against him.
Held: The registrar should be allowed to continue and to celebrate the marriage. It could not be said that the defendant was doing this to attempt to avoid liability for a serious crime. He might do other things also such as calling witnesses. ‘The right to marry has always been a right recognised by the laws of this country long before the Human Rights Act came into force. The right of course is also enshrined in article 12 of the Convention. It has more recently been held that prisoners are not to be denied that right in the cases cited by the judge. The right, furthermore, must not be denied to B who has indeed born a child to J. It seems to me that the right of marriage carries with it the incidences of marriage, including that the wife may not be compelled to give evidence against her husband or vice versa. ‘

Citations:

[2002] EWCA Civ 1661

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hoskyn v Metropolitan Police Commissioner HL 1978
The defendant had married the complainant only two days before he was to face trial for assaulting her. The House considered whether she was compellable as a witness against him as his wife.
Held: A spouse ought not to have been compelled to . .
Cited – Hamer v United Kingdom ECHR 1979
(Commission) The Commission considered the right of a prisoner in prison to get married.
Held: A rule against such marriages was incompatible with article 12. The Commission explained the power of national laws in relation to article 12: ‘Such . .
Cited – Sydnet Draper v United Kingdom ECHR 1980
(Commission) Rule against marriage of prisoners breach of art 12: ‘The Commission first recalls that the Court has held that, even though a right is not formally denied, ‘hindrance in fact can contravene the Convention just like a legal . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Puttick CA 1981
The applicant, then Astrid Proll, fled bail in Germany when awaiting trial on terrorist charges, entered England and under a false name, and married Mr Puttick. She resisted extradition saying that under the 1948 Act she was now a British National. . .
Cited – Regina v Registrar General, ex parte Smith CA 1991
The applicant was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Family, Human Rights

Updated: 29 June 2022; Ref: scu.217833

The Legal Services Commission v F and Others: QBD 8 Apr 2011

The LSC appealed against the award of costs to third parties who had been interveners in the ancillary relief litigation, and who had been successful in it.

Judges:

Sharp J

Citations:

[2011] EWHC 899 (QB), [2011] 2 FLR 1105, [2011] Fam Law 796, [2011] 5 Costs LR 740

Links:

Bailii

Statutes:

Community Legal Service (Cost Protection) Regulations 2000

Jurisdiction:

England and Wales

Family, Costs, Legal Aid

Updated: 29 June 2022; Ref: scu.431903

Messer v Messer: CA 19 Jan 2005

Possession of house after breakdown of relationship

Citations:

[2005] EWCA Civ 63

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – T Messer and Another v Messer CA 21-Dec-2004
Order for possession . .

Cited by:

See Also – T Messer and Another v Messer CA 21-Dec-2004
Order for possession . .
Lists of cited by and citing cases may be incomplete.

Land, Family

Updated: 29 June 2022; Ref: scu.222594

Poe v Paterson: HL 16 Jul 1883

Succession – Husband and Wife – Husband’s Right to Succeed to Wife’s Moveable Estate – Married Women’s Property (Scotland) Act 1881 (44 and 45 Vict. c. 21), secs. 3 and 6.
Held ( aff. judgment of First Division) that sec. 6 of the Married Women’s Property (Scotland) Act 1881, which gives to a husband of a woman dying domiciled in Scotland the same share and interest in her moveable estate as is taken by a widow in her husband’s moveable estate, is applicable to all marriages, whether contracted before or after the passing of the Act.

Judges:

Lords Blackburn, Watson, and Fitzgerald

Citations:

[1883] UKHL 48, 21 SLR 48

Links:

Bailii

Statutes:

Married Women’s Property (Scotland) Act 1881 6

Jurisdiction:

Scotland

Family, Wills and Probate

Updated: 28 June 2022; Ref: scu.636767

Collins v Collins: HL 18 Feb 1884

Held ( aff. decision of Second Division) that condonation of adultery is by the law of Scotland absolute, and cannot be made conditional by paction, and that therefore condoned adultery cannot, by reason of breach of a condition attached to the condonation by the forgiving spouse, be afterwards proved as a ground of divorce.
In an action of divorce brought on allegations of renewed adultery by the guilty spouse with the paramour, adultery which has been condoned may be proved, for the purpose of explaining the relations existing between them, and throwing light on the facts tending to prove the renewed adultery.
Observations ( per Lord Watson) on the extent to which the canon law is adopted into the marriage law of Scotland.
Condonation of adultery consists in the renewed cohabitation of the spouses as husband and wife in the knowledge by the condoning spouse of the guilt of the other, and the rule laid down by the institutional writers that the marriage thereafter continues in full force is traceable to the effect of cohabitation as man and wife as evidencing marriage.

Judges:

Lord Chancellor, Lord Blackburn, and Lord Watson

Citations:

[1884] UKHL 579, 21 SLR 579

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 28 June 2022; Ref: scu.636742

Begg v Begg: HL 25 Apr 1890

Mrs Begg appealed against two decisions of the Second Division impugning (1) a judgment of divorce on the ground of her adultery as being contrary to evidence; and (2) a judgment in her action for reduction of the decree of divorce as having been obtained by subornation of perjury.
Counsel for the respondent were not called upon.
The House affirmed the decisions of the Second Division and dismissed both appeals.

Judges:

Lords Herschell, Watson, and Morris

Citations:

[1890] UKHL 1034, 27 SLR 1034

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 28 June 2022; Ref: scu.636733

Alexander Ramsay Irvine v Alexander Irvine, By His Guardians: HL 10 Dec 1753

hl Marriage Articles, Fraud – Proof –
(1) Reduction of marriage articles on the head of imbecility and fraud, sustained by the Court of Session, in respect of the suspicious and unequal nature of the whole transaction, but reversed in the House of Lords, in respect the marriage had followed thereon, and that fraud or imbecility was not proved. (2) The lady’s mother was offered as a witness, but objected to on the ground of malice against the appellant. Objection repelled, and proof of reprobators refused. (3) The physician who attended the lady’s father, and who was charged with having availed himself of the opportunities which his attendance afforded, to induce the marriage settlement, rejected as a witness in support of the deed.

Citations:

[1753] UKHL 1 – Paton – 547, (1753) 1 Paton 547

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 28 June 2022; Ref: scu.558214

DL v SL (Ancillary Relief Proceedings: Anonymity): FD 27 Jul 2015

FPR r 27.10 provides a clear starting point or presumption, which should not be derogated from unless there was a compelling reason, that ancillary relief proceedings should be heard in private. Whilst media may be allowed to attend, such proceedings covered any very private details of the parties’ lives.

Judges:

Mostyn J

Citations:

[2015] EWHC 2621 (Fam), [2016] 2 FLR 552, [2015] Fam Law 1474, [2016] 1 WLR 1259, [2015] WLR(D) 391

Links:

Bailii, WLRD

Statutes:

Family Proceedings Rules 27.10

Jurisdiction:

England and Wales

Family, Media

Updated: 28 June 2022; Ref: scu.552775

A v B (Ancillary relief: Separation agreement): FD 17 Jan 2005

The husband appealed against an ancillary relief order, saying that the judge had applied the terms of a separation agreement without acknowledging that that agreement had been entered into without full disclosure having been made. Had the judge looked properly at the issues identified in the Act, the order would have been different.
Held: The case of Smith was particular to its facts and should not be read to have changed the law developed in Edgar and in Camm, and it remained correct to give substantial weight to the terms of a separation agreement.

Judges:

Black J

Citations:

Times 23-Mar-2005

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Citing:

Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Smith v Smith FD 2000
Ancillary relief . .
Cited – Camm v Camm CA 1982
Ancillary relief was claimed in the face of the terms of a separation agreement.
Held: If asked to look at an ancillary relief settlement agreed between the parties, the court could do so where the original provision was inadequate. Here, the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 27 June 2022; Ref: scu.224378

Moses-Taiga v Taiga: CA 23 Sep 2004

Judges:

Thorpe, Potter LJJ

Citations:

[2004] EWCA Civ 1399

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Main Judgment – Moses-Taiga v Taiga CA 5-Jul-2005
Thorpe LJ said: ‘the absence of . . authority . . only illustrates the tendency for propositions of universal acceptance to be difficult to support by reference to authority.’ . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 27 June 2022; Ref: scu.219523

Al-Khatib v Masry and others: CA 5 Oct 2004

The parties had been involved in protracted and bitter family disputes. After a previous appeal they had been invited to refer their disputes to mediation.
Held: At that time, mediation within the Appeal Court was managed by commercial mediators. No attempt had been made to supervise the mediation, and it had failed. There is no good reason why the court should not maintain some supervisory role. The court noted that the mediation had been resumed and been successful.
Thorpe LJ observed: ‘there is no case, however conflicted, which is not potentially open to successful mediation, even if mediation has not been attempted or has failed during the trial process’

Judges:

Thorpe LJ

Citations:

[2004] EWCA Civ 1353, Times 21-Oct-2004, [2005] 1 FLR 381

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Application for leave – Al-Khatib v Masry and others CA 26-Jun-2002
Application for leave to appeal against ancillary relief order. . .
Appeal from – Al-Khatib v Masry FD 2002
The court heard an application for an ancillary relief order in divorce proceedings.
Held: General reputation prevailing in the community, and the mere opinions, inferences or beliefs of witnesses, are inadmissible in proof of material facts. . .

Cited by:

Cited – AI v MT FD 30-Jan-2013
The parties had asked the court to apply rabbinical law in resolving their matrimonial proceedings, applying by consent the result of a rabbinical arbitration.
Held: The court could not accept an ouster of its jurisdiction over children of the . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 27 June 2022; Ref: scu.219133

Mackie v Herbertson and Others (Gloag’s Trustees): HL 6 Mar 1884

A widow having children by her first marriage entered into a second, in contemplation of which she, by antenuptial contract with the second husband, conveyed to trustees her property, heritable and moveable, for behoof of herself in liferent only, excluding the jus mariti, and for behoof of the children ‘procreated or to be procreated’ of her body in fee, in such proportions as she might appoint, or failing such appointment equally. The trustees were infeft in the heritable property thus conveyed, and they entered into management of the estate. There were no children of the second marriage, and the wife died leaving a settlement by which she affected to exercise the power of appointment and deal with her whole property. By this settlement she left only a small legacy, payable, in the discretion of her trustees, to one of the children of the first marriage. Held ( rev. judgment of Second Division) that the marriage-contract conferred upon the children of the first marriage a jus crediti, and was not quoad them a merely testamentary provision, and therefore that their mother could not by her settlement defeat this child’s claims under it.

Judges:

Lord Chancellor, Lord Watson, and Lord Fitzgerald

Citations:

[1884] UKHL 465, 21 SLR 465

Links:

Bailii

Jurisdiction:

Scotland

Family, Trusts, Wills and Probate

Updated: 27 June 2022; Ref: scu.636744

Heyer v Newby: CA 19 Oct 2005

The parties had settled their ancillary relief case by consent, but shortly afterwards, shares in the husband’s company were sold creating a very substantial windfall in his favour. The former wife sought to vary the order. The husband appealed an order allowing this on the grounds of his having failed to make full and frank disclosure.
Held: the wife’s delay had been substantial to th epoint where it could not be allowed to proceed.

Citations:

[2005] EWCA Civ 1311

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the . .
Mentioned – Burns v Burns CA 30-Jul-2004
Application for leave to appeal against ancillary relief order. . .
Cited – Harris v Manahan CA 1997
Application to vary ancillary relief order made by consent. Promptitude is required. Ward LJ considered substantial restraint on a judge hearing appeals against his own decisions. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 27 June 2022; Ref: scu.235237

Hyde v Hyde: CA 22 Nov 2002

W sought leave to appeal against the grant of a decree nisi of divorce granted to her husband. As a committed Christian, she did not believe she had behaved unreasonably.
Held: Leave was refused. English law did not require a finding that a party had behaved unreasonably, it was a finding that behaviour had been of a sort such that the the other party could not reasonably be expected to live with them. ‘It is clear that this marriage has irretrievably broken down. Again it is not a moral judgment; it is not a religious judgment; it is a straightforward fact. There may have been a time when it could have been retrieved, but clearly that time has now gone by.’ The appeal was bound to fail, and leave was refused.

Judges:

Hale LJ

Citations:

[2002] EWCA Civ 1826

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 27 June 2022; Ref: scu.217831

Edwards v Edwards: CA 18 Nov 2002

The husband resisted the wife’s claim for ancillary relief saying that his depression made him unfit for litigation. The wife said this was a mere tactic to avoid the issues. She also had health problems.
Held: This was a difficult situation, but the court should not have given the husbands’ adjournment as requested.

Citations:

[2002] EWCA Civ 1802

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 27 June 2022; Ref: scu.217816

Ganesmoorthy v Ganesmoorthy: CA 16 Oct 2002

The parties had divorced. The wife alleged a serious assault against her husband, and instructed a claims firm to recover damages from him. Her ancillary relief claim in the divorce was compromised with her having sought to rely upon the assault, but without mentioning having instructed the claims firm. The husband resisted these proceedings for damages in tort as an abuse of process.
Held: The wife could not pursue her claim: ‘the wife in this case had the plainest obligation to reveal to her solicitors the intention to advance her claim in tort as an independent adjunct to her claim in ancillary relief.’ and ‘abuse of the kind under discussion is not limited to cases where the issue has been litigated and adjudicated on. It can extend to claims which have not been litigated but which ought to have been raised in previously concluded proceedings. ‘

Judges:

Lord Justice Thorpe Lord Justice May Mr Justice Bodey

Citations:

[2002] EWCA Civ 1748, [2003] 3 FCR 167

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 25(2)(g)

Jurisdiction:

England and Wales

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .

Cited by:

Cited – Webb v Chapman and others CA 20-Jan-2009
Renewed application for permission to appeal following a provisional refusal.
Held: Notwithstanding the criticism, the appeal should not be allowed to go ahead. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Family

Updated: 27 June 2022; Ref: scu.217669

Tee-Hillman v Tee and others: CA 24 Sep 2002

Citations:

[2002] EWCA Civ 1441

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Tee v Tee, John Arthur Hillman Co CA 22-Mar-1999
The wife and her second husband occupied a property in the joint names of herself and of her first husband, who, following their divorce, had applied under the Act of 1973 for a lump sum order reflective of his equal beneficial interest in it to be . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 27 June 2022; Ref: scu.217617

Gibbins v Gibbins: CA 10 Jul 2002

Application by Mr Gibbins for permission to appeal against the grant of a Decree Nisi of a divorce. The respondent, Mrs Gibbins, had petitioned for divorce on the grounds that the marriage had irretrievably broken down by reason of the fact that her husband had behaved in such a way that she could not reasonably be expected to live with him.

Judges:

Ward LJ

Citations:

[2002] EWCA Civ 1377

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 23 June 2022; Ref: scu.217402

Afshar v Lomas: CA 25 Jul 2002

Application for permission to appeal against grant of decree absolute.
Held: The judge had no jurisdiction to allow the request, and neither did the appeal court. Permission refused.

Judges:

Ward LJ

Citations:

[2002] EWCA Civ 1381

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 23 June 2022; Ref: scu.217341

Sir William M’Onie and Another (Buchanan’s Trustees) v Whyte and Another: HL 25 Feb 1890

A husband and wife, on the narrative that their antenuptial contract had become unsuitable, executed a postnuptial contract, whereby the husband bound himself and his heirs, in the event of his predecease, to make certain provisions for his wife, who accepted thereof in satisfaction of her legal claims, and further gave, granted, and disponed from her, her heirs and successors, to her husband and his heirs and assignees whomsoever, her whole estate real and personal now belonging to her or that might belong to her at the time of her death. She bound herself to infeft and seise her husband and his heirs and assignees in the heritable property so disponed, and she empowered her husband to uplift and discharge the whole estate, and appointed him to be her sole executor and universal legator. Further, she constituted her husband and his foresaids her assignees to the rents and duties of the said lands and others ‘from and since the term of Whitsunday last, which is hereby declared to have been the term of the said husband’s entry to the said subjects, and in all time coming, surrogating hereby and substituting the said husband in her full right and place of the premises for ever.’
The parties reserved power to alter the contract.
Under her grandfather’s will the wife was entitled to a share of the residue of his estate, which was secured to her in liferent (exclusive of the jus mariti), and in fee to anyone whom she might appoint by a writing under her hands.
The husband predeceased, having conveyed his whole estates to trustees.
The First Division found that the wife had validly exercised her power of appointment over the share of the residue of her grandfather’s estate by the general conveyance in her postnuptial contract, and this decision was not questioned.
But held ( rev. the decision of the First Division) that the postnuptial contract was not of a testamentary character, but rather a deed of contract granting to each of the parties the right of a creditor, which vested at once, and therefore that the wife’s share of residue which had been conveyed to the husband was carried by his disposition, and now vested in his trustees.

Judges:

Lord Chancellor (Halsbury) and Lords Watson, Bramwell, and Herschell

Citations:

[1890] UKHL 1014

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 23 June 2022; Ref: scu.636727

Nicholls v Lan and Another: ChD 26 May 2006

The bankrupt had been discharged from his bankruptcy, but his share in the family home remained vested in the trustee who applied for the sale of the home. His wife applied to set aside an order for sale on the basis that it interfered with her right to family life.
Held: Previous decisions had not considered the effect of Article 8 on applications under s335A. The section allowed a judge to do what he considered just and reasonable in all the circumstances. He had to balance the needs of the creditors and of the applicant. Those interests were different in character and quality. No sufficient error had been shown in the way the district judge had exercised his discretion to allow the setting aside of his order.

Judges:

Paul Morgan QC

Citations:

Times 04-Aug-2006

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14, Insolvency Act 1986 335A(3)

Jurisdiction:

England and Wales

Citing:

Cited – In re Lowrie 1981
When a judgment creditor applies for an order for sale of a property subject to a Charging Order, the competing equities of the parties will be carefully weighed. . .
Cited – Re Citro, Lloyds Bank plc v Byrne and Byrne, Abbey National plc v Moss and others and Barclays Bank plc v Hendricks CA 1991
Trustees in bankruptcy of bankrupt husbands successfully appealed for the removal of provisos delaying the operation of orders for sale made under s30 in respect of each husband’s matrimonial home for the benefit of that husband’s wife who had been . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family, Human Rights

Updated: 23 June 2022; Ref: scu.244694

Sugden v Sugden: CA 1957

The husband died after having had made against him an order to pay maintenance to the two children of the marriage.
Held: The order could not be enforced against his personal representatives after his death. The court explained why a claim under the Matrimonial Causes Act is not as such a cause or action under the 1934 Act, (Lord Denning LJ): ‘The judge was much influenced by section 1 of the Law Reform (Miscellaneous Provisions) Act, 1934, which he thought applied so as to make the sums for maintenance continue after the father’s death. I do not agree with that view. The section only applies to ’causes of action’ which subsist against the deceased at the time of his death. The legislature had particularly in mind causes of action in tort which used to fall with the death of either party under the old common law maxim actio personalis moritur cum persona. ‘Causes of action’ in the section means, I think, rights which can be enforced – or liabilities which can be redressed – by legal proceedings in the Queen’s courts. These now survive against the estate of the deceased person. ‘Causes of action’ are not, however, confined to rights enforceable by action, strictly so called – that is, by action at law or in equity. They extend also to rights enforceable by proceedings in the Divorce Court, provided that they really are rights and not mere hopes or contingencies. They include, for instance, a sum payable for costs under an order of the Divorce Court, or a right to a secured provision under an order already made against a man before his death: see Hyde v. Hyde and Mosey v. Mosey and Barker.
It must be noticed, however, that the section only applies to causes of action ‘subsisting against’ the deceased on his death. This means that the right or liability must have accrued due at the time of his death.
In an action in the Queen’s Bench there is usually no difficulty in determining when the right or liability accrued due: but there is more difficulty in proceedings in the Divorce Court. In that court there is no right to maintenance, or to costs, or to a secured provision, or the like, until the court makes an order directing it. There is, therefore, no cause of action for such matters until an order is made. This view of proceedings in the Divorce Court is supported by the decision of my brother Hodson L.J (then Hodson J.) in Dipple v. Dipple, where he pointed out that all that the wife had was the hope that the court would in its discretion order a secured provision. She had no right to it at all until the order was actually made, and hence she had no cause of action at his death. While I entirely agree with that decision, I do not think that the fact that a cause of action is discretionary automatically takes it out of the Act. An injunction is a discretionary remedy, but, if a cause of action for an injunction subsisted at the death, I should have thought it would survive against the personal representatives. The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death.
I would add that, in divorce proceedings, in order that the cause of action should subsist at the death, the right under the order must itself have accrued at the time of death. Thus a cause of action subsists against a husband for arrears of maintenance due at his death, but not for later payments.’

Judges:

Denning LJ

Citations:

[1957] P 120

Statutes:

Law Reform (Miscellaneous Provisions) Act 1934 1

Jurisdiction:

England and Wales

Cited by:

Cited – Barder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the . .
Cited – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 23 June 2022; Ref: scu.235891