Category: Family

Newlon Housing Trust v Alsulaimen and Another: HL 29 Jul 1998

A tenancy which had been terminated by a notice given by one of the joint tenants had expired. It did not come to an end by any deed, and so was not capable of being set aside by a family court in the course of divorce proceedings. The possession proceedings issued by the landlord could not be resisted. Statutory tenancies, whether arising under the Rent Act 1977 or the Rent (Agriculture) Act 1976 – are not properly to be regarded as a form of property; rather, they confer a ‘status of irremovability’.

Judges:

Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Saville of Newdigate

Citations:

Times 20-Aug-1998, Gazette 16-Sep-1998, [1998] UKHL 35, [1999] 1 AC 313, [1998] 4 All ER 1, [1998] 3 WLR 451

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24 37(2)(b), Rent Act 1977

Jurisdiction:

England and Wales

Citing:

Cited – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Appeal from – Newlon Housing Trust v Alsulaimen CA 16-Jan-1997
The tenant had been joint tenant with his wife of a house. On the breakdown of the marriage, she left and gave notice to quit to the council. The council sought and obtained an order for possession, against which the husband now sought leave to . .

Cited by:

Cited – Barrett and others v Morgan HL 27-Jan-2000
The landlord served a notice to quit on the head tenant under an understanding that the head tenant would not serve a counter notice. The effect was to determine the head and sub-tenancy. It acted as a notice to quit, and despite the consensual . .
Cited – Gay v Sheeran, London Borough of Enfield CA 18-Jun-1999
The ability for a court to order the transfer of a secure tenancy between partners under the Act depended upon the court first making an occupation order in favour of the party from whom the tenancy was to be transferred, but the order could be made . .
Cited – Sims v Dacorum Borough Council CA 24-Jan-2013
Husband and wife had been joint tenants of the council. On the breakdown of the marriage, W gave notice to quit. H defended the council’s possession action, saying that it was an infringement of his human rights for him to lose his tenancy and home. . .
Cited – Notting Hill Housing Trust v Brackley and Another CA 24-Apr-2001
One of two joint tenants was able to give a notice to quit a joint periodic tenancy, without first referring to the co-tenant. If this was inappropriate, then it was for Parliament to change the law. Such a notice was not the exercise of a . .
Lists of cited by and citing cases may be incomplete.

Family, Landlord and Tenant

Updated: 31 May 2022; Ref: scu.158966

In re Estate of Park (deceased), Park v Park: CA 2 Jan 1953

The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective.
Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was free of morbid delusions, and capable of appreciating the normal duties and responsibilities of a marriage. The test of capacity is issue specific. A person might have capacity for one purpose while simultaneously lacking it for another. Singleton LJ said: ‘Was the deceased on the morning of May 30, 1949, capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To understand the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.’ The decision was affirmed.

Judges:

Birkett LJ, Hodson LJ, Singleton LJ

Citations:

[1953] 2 All ER 1411, [1954] P 112, [1954] 97 Sol Jo 830

Jurisdiction:

England and Wales

Citing:

Appeal from – In re Estate of Park (deceased), Park v Park ChD 1953
The deceased had executed his will in which he was described as a widow, whereas in fact he had recently re-married. He was elderly and physically and mentally infirm. A relative alleged that the most recent marriage had been invalid for his lack of . .

Cited by:

Cited – Sheffield City Council v E; Re E (An Alleged Patient) FD 2-Dec-2004
The council sought an order to prevent E, a patient from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity.
Held: The woman suffered . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Lists of cited by and citing cases may be incomplete.

Family, Health

Updated: 31 May 2022; Ref: scu.223063

Harris v Harris: CA 1 Jul 2001

The first instance court had acceded to the husband’s application for downward variation of the wife’s periodical payments to andpound;9,000 per annum and to the wife’s application substituting a lump sum of andpound;120,000 for the future periodical payments order. The argument now was whether the judge had sufficiently reduced the rate of periodical payments and primarily on the methodology of capitalisation.
Held: The order was affirmed. Although he had not been furnished with the relevant Duxbury calculations the figure was almost exactly in line with what the Duxbury tables would have suggested. The judicial assessment is essentially speculative. The periodical payments would end with the first life. The husband now had a serious illness compelling his retirement. The wife’s earning capacity was uncertain as was her relationship with her current partner.
Thorpe LJ said: ‘So the judicial conclusion will always be vulnerable. Either party may feel, with the advantage of hindsight, that the judge failed. The wife may feel that she has been under compensated when accident or illness befalls. The husband may resent the capital paid over when the former wife finds a new husband. These considerations are familiar to ancillary relief specialists, since they apply equally to the negotiation or determination of claims at the stage of the divorce. It follows, in my judgment, that the discretion exercised by the judge in this new jurisdiction must be very broad. Unless some clear error of approach or calculation has been demonstrated, I do not believe that this court should lightly interfere with the judge’s figures.’ The court trod a broad path. (Pill LJ) ‘What the judge is endeavouring to do is to express as a capital sum what is a fair capital sum in the circumstances in substitution for the periodical payments which would otherwise have been appropriate.’

Judges:

Thorpe LJ, Pill LJ

Citations:

[2001] 1 FCR 68

Jurisdiction:

England and Wales

Citing:

See also – Harris v Harris; Harris v Attorney General FD 21-May-2001
The applicant had been committed for ten months for contempt, being in breach of family court injunctions. He applied to be released after two months on the basis that the unserved balance of the sentence be suspended. The court held that it had the . .
See Also – Harris v Harris CA 30-Nov-2001
Purchase of council house by brother and sister – whether intended as trust for both. . .

Cited by:

Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – Cornick v Cornick (No 3) FD 2001
The court considered its powers when being asked to vary a lump sum provision at the same time as a variation of maintenance.
Held: ‘section 31(7B) clearly introduces a wide discretionary power to be exercised by applying the words of the . .
See also – Harris v Harris; Harris v Attorney General FD 21-May-2001
The applicant had been committed for ten months for contempt, being in breach of family court injunctions. He applied to be released after two months on the basis that the unserved balance of the sentence be suspended. The court held that it had the . .
See Also – Harris v Harris CA 30-Nov-2001
Purchase of council house by brother and sister – whether intended as trust for both. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 May 2022; Ref: scu.186016

Cowan v Cowan: CA 14 May 2001

When considering the division of matrimonial assets following a divorce, the court’s duty was, within the context of the rules set down by the Act, to impose a fair settlement according to the circumstances. Courts should be careful not to make assumptions about the roles taken by the parties according to their sex, and the test of assessing what would be the consequences of an equal division of assets serves as a useful check in avoiding discrimination, but no more. In ‘big money’ cases, the judge should also be careful not to rely too heavily on tests as to the reasonable requirements of the parties. That test was to be considered with flexibility: ‘The decision in White clearly does not introduce a rule of equality. The yardstick of equality is a cross-check against discrimination. Fairness is the rule and in its pursuit the reasons for departure from equality would inevitably prove to be too legion and too varied to permit of listing or classification. They will range from the substantial to the faint but that range can be reflected in the percentage of departure.’ and ‘But after more than 30 years of judicial tinkering it is evident to me that there is a pressing need for legislative review since reforms to match social shifts since the late 1960s cannot be achieved by the judges without trespassing beyond their legitimate junction.’
Thorpe LJ considered a suggestion that post-separation changes should be reflected in the award on an ancillary relief application, saying: ‘All the above considerations are capable of inclusion in a review of the respective needs, responsibilities and/or contributions of the parties. They cover three of Mr Pointer’s four submissions summarised in [21] above. The third, namely that much of the husband’s fortune was generated in the 6 years post-separation, receives no reflection because in my opinion it is inherently fallacious. The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party has deliberately or recklessly wasted assets in anticipation of trial. In this case the reality is that the husband traded his wife’s unascertained share as well as his own between separation and trial, particularly committing those undivided shares to the investment in Baco. The wife’s share went on risk and she is plainly entitled to what in the event has proved to be a substantial profit. If this factor has any relevance it is within the evaluation of the husband’s exceptional contribution.’
Mance LJ stated: ‘There are many perplexing situations that may one day require examination. What, for example, of the individual spouse who each week invests a small part of his or her spare cash in the National Lottery, and one day wins andpound;1m, or andpound;10m? Should this asset be viewed like any sudden accretion to the value of the joint home or other matrimonial investment, due to market movements? Or might it, in some circumstances at least, be more analogous to property brought into a marriage or inherited property? Would it for example make any difference, if the other spouse was opposed to all gaming as a waste of money, or if the very limited money expended came from inherited property? There appears to have been a quite extensive jurisprudence in this area in Australia, including Zyk v Zyk (1995) FLC 92-644, 19 Fam LR 797 (referred to in Lynch v Lynch (26 October 2000, unreported) (Full Court of the Family Court of Australia), cited to us). In the circumstances there, a husband’s lottery win was equated with a contribution by the husband to the joint assets, and the final award, based on the spouses’ respective contributions, was tailored accordingly. I mention Zyk’s case not to suggest that the same approach to or use of contributions would necessarily apply under the English statute-but simply to illustrate some of the problems and considerations that may one day need to be addressed in this jurisdiction.’

Judges:

Thorpe, Robert Walker, Mance LJJ

Citations:

Times 17-May-2001, [2001] EWCA Civ 679, [2002] Fam 97, (2001) 2 FLR 192

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 25

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 . .

Cited by:

Cited – Moorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Cited – Lambert v Lambert CA 14-Nov-2002
The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
Held: The Act gave . .
Cited – H v H (Financial Provision: Special Contribution) FD 2002
The court heard an application for ancillary relief in a divorce. The family assets were pounds 6M. The husband was a successful city solicitor. Counsel contended that for various reasons his financial accumulations during the course of his . .
Cited – Sorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
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 – Martin-Dye v Martin-Dye CA 25-May-2006
The court was asked how to achieve fairness in ancillary relief proceedings on a divorce as respects pension entitlements. The parties had sufficient to allow a clean break, but the assets mixture included sums invested which would be returned only . .
Cited – M v M (Financial Relief: Substantial Earning Capacity) FD 29-Mar-2004
The parties had been married for 12 years, there were three children, one with special needs, and assets of over 12 million pounds. The court considered the application for ancillary relief. It was substantially agreed that the wife should receive . .
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 . .
Cited – S v AG (Financial Remedy: Lottery Prize) FD 14-Oct-2011
The court considered how to treat a lottery win of andpound;500,000 in the context of an ancillary relief application on a divorce.
Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 May 2022; Ref: scu.147544

A Local Authority v A Mother and Child: CA 20 Dec 2000

A solicitor claimed the sum of andpound;59.00 for the cost of preparing his legal aid bill for assessment. The court had disallowed the costs of an in-house costs draftsman preparing the bill. The Costs Procedure Rules would generally allow something toward such a charge. The Court of Appeal had given leave to appeal although the amount at issue in this case was less than ten pounds.
Held: The Act specified what sums could be paid from the legal aid fund. The rules made under the Act specified a sum of andpound;71.75 toward the cost. Historically the preparation of a bill is seen as part of a solicitors overheads, and thus not claimable. This changed under the Civil Procedure Rules, and the solicitor argued that the Rules over-rode the Regulations so as to remove the limitation. However there is no new additional category by which changes under the rules have become vires. The Civil Procedure Rules go through no process of democratic control. The Rules have no power to override either legislation or subordinate legislation.

Judges:

The President. Lord Justice Laws, And Lady Justice Hale

Citations:

[2000] EWCA Civ 339

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations 1989 (SI 1989 No 339) 107, Legal Aid Act 1988 6(1), Civil Procedure Rules 2.16

Jurisdiction:

England and Wales

Citing:

Cited – Johnson v Reed Corrugated Cases Ltd 1992
The costs principles set out in the Masters’ Practice Notes and which endorsed the dual approach of assessing and adding an element to reflect the value at stake in litigation as well as the hourly expense rate of providing that service in all . .
Lists of cited by and citing cases may be incomplete.

Costs, Family, Legal Aid, Constitutional, Civil Procedure Rules

Updated: 31 May 2022; Ref: scu.147372

Dharamshi v Dharamshi: CA 5 Dec 2000

On a divorce where there were fairly substantial sums at issue, the two parties argued for different bases for calculation of the wife’s interests, either her reasonable needs according to Duxbury tables, or otherwise to reflect the particular facts.
Held: The Ogden tables should not be preferred in matrimonial proceedings. In substantial asset cases two principles apply: there must be no gender discrimination in applying the statutory criteria, and equality should be departed from only with good reason. The need to articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination, and the ceiling of reasonable requirements must be rejected. Appeal dismissed.

Judges:

Lord Justice Aldous, Lord Justice Schiemann, And Lord Justice Thorpe

Citations:

[2000] EWCA Civ 305

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24

Jurisdiction:

England and Wales

Citing:

Cited – Wells v Wells; Thomas v Brighton Health Authority; etc HL 16-Jul-1998
In each of three cases, the plaintiffs had suffered serious injury. They complained that the court had made a substantial reduction of their damages award for loss of future earnings and the costs of future care.
Held: The appeals succeeded. . .
Cited – Vicary v Vicary 1992
. .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 May 2022; Ref: scu.147338

Hannigan v Hannigan: CA 18 May 2000

The widow appealed against strike out of her claim under the 1975 Act. It had been filed with several mistakes and only just in time.
Held: Her appeal succeeded. Though the defects were real and to be deplored, the paperwork contained all the necessary information: ‘The ‘quirky’ petition was filed at the Stafford County Court and sealed by that court on 10th June 1999 and it contained all the information the defendants needed in order to be able to understand what was being claimed. They were told that Part 8 of the Civil Procedure Rules applied to the claim, and they were also told that the claimant relied on the evidence contained in her witness statement filed with the claim. In other words, all the complaints being made by the defendants’ solicitor were claims about form, not about substance.’
The judge had erred.

Judges:

Peter Gibson, Brooke, Robert Walker LJJ

Citations:

[2000] EWCA Civ 159

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975, Civil Procedure Rules 4.9(1)

Jurisdiction:

England and Wales

Citing:

Cited – Pontin v Wood CA 1962
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the . .
Cited – Harkness v Bell’s Asbestos and Engineering Limited CA 1966
The plaintiff’s solicitors had applied to a district registrar for leave of the court for the purposes of the Limitation Act 1963 when they ought to have made the application to a judge in chambers. The district registrar ordered that Section 2(1) . .
Cited – In re Pritchard CA 1963
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 31 May 2022; Ref: scu.147192

Griffin v Griffin: CA 7 Apr 2000

It was not wrong to make an order suspending commitment for contempt of court provided he complied with another order which had been made without any limit of time. The power to commit remains a common law power with statutory restrictions. An order can be valid and within the judge’s discretion even if it is one which should not normally be made.

Citations:

Times 28-Apr-2000, Gazette 18-May-2000, [2000] EWCA Civ 119

Links:

Bailii

Jurisdiction:

England and Wales

Family, Contempt of Court

Updated: 31 May 2022; Ref: scu.147152

Mcgladdery v Mcgladdery: CA 21 Jul 1999

Citations:

[1999] EWCA Civ 1909

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Mcgladdery v Mcgladdery CA 26-Sep-1996
Implementation of ancillary relief order for transfer of shares in family company. . .
See also – McGladdery v McGladdery CA 21-Jul-1999
A husband having been ordered to transfer his shares in a private company to his wife, found that she had breached the undertaking she had given as part of the order, and had used her majority shareholding to dispose of company assets out of the . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 31 May 2022; Ref: scu.146824

Lake v Lake: CA 20 Jul 2006

The court considered the proper order for a transfer of a property held under a joint tenancy following a divorce.
Held: The court must have regard to all the circumstances of the case, and the judge had to make a fair and balanced decision. His discretion could not be limited to exclude consideration of the behaviour of the parties.

Judges:

Thorpe LJ, Wall LJ

Citations:

Times 16-Aug-2006

Statutes:

Family Law Act 1996 33(6)

Jurisdiction:

England and Wales

Family

Updated: 30 May 2022; Ref: scu.244442

Regina (R and Others, Minors) v Children and Family Court Advisory and Support Service; Regina (P, a Minor) v Same: QBD 17 Jan 2003

The Act established the respondent (Cafcass) with a duty to provide officers to take appointment as guardian’s in proceedings involving children. Complaint was made that they did not provide such officers immediately upon request.
Held: The point applied to all situations where the Service was called upon to provide an officer. The argument advanced that Cafcass was under a duty to provide an officer immediately upon notification from the court was not supported in the statute. Immediate appointments were not necessary or efficient. The general rule was that no particular time was implied from the statute. However here Cafcass had agreed that one should be made available as soon as possible given its financial resources.

Judges:

Charles J

Citations:

Times 24-Jan-2003, Gazette 20-Mar-2003

Statutes:

Criminal Justice and Court Services Act 2000 12

Jurisdiction:

England and Wales

Children, Family

Updated: 30 May 2022; Ref: scu.178775

Regina (Crown Prosecution Service) v Registrar-General of Births, Deaths and Marriages and Another: CA 7 Nov 2002

The prisoner awaited trial. Among the prosecution witnesses was his partner. They now sought to marry. The applicant sought to prevent the marriage on the basis that this would make her non-compellable as a witness.
Held: Public policy considerations did not apply to prevent the marriage. The duty on the registrar to issue a certificate was absolute. Public policy might provide a reason, but did not in this case. Entering into a lawful marriage could not be an attempt to pervert the course of justice. The right to marry is a human right, and it was not for the prison governor to exercise his discretion to prevent it, since such a discretion could not be exercised save on public policy grounds.

Judges:

Dame Butler-Sloss President, Waller LJ, Sir Philip Otton

Citations:

Times 14-Nov-2002, Gazette 23-Jan-2003

Statutes:

Marriage Act 1949 27A(3) 31(2), European Convention on Human Rights 12

Jurisdiction:

England and Wales

Family, Prisons, Evidence, Human Rights

Updated: 30 May 2022; Ref: scu.178142

Merritt v Merritt: CA 1970

H and W owned their house jointly. When H left for another woman, he signed an agreement to pay Mrs Merritt a monthly sum, and eventually to transfer the house to her if Mrs M kept up the monthly mortgage payments. When the mortgage was paid off Mr Merritt refused to transfer the house. Mrs Merritt asked the court to enforce the agreement.
Held: H’s appeal failed, and specific performance granted. The usual presumption against an agreement within a marriage being legally enforceable did not apply in this case since the parties were separated. This was more than a domestic arrangement.

Judges:

Stamp J

Citations:

[1970] 2 All ER 760, [1970] 1 WLR 1211

Jurisdiction:

England and Wales

Citing:

Distinguished – Balfour v Balfour CA 1919
Mr Balfour had set out in an apparently formal legal way, an agreement to give his wife pounds 30 a month by way of maintenance while he was away in Ceylon. Mrs Balfour sought to enforce the agreement.
Held: Within a family there is a . .
Cited – Jones v Padavatton CA 29-Nov-1968
A mother had persuaded her daughter to come to England to study for the Bar, promising to allow her to stay in her house Several years later, the daughter had still not passed any Bar examinations. They fell out, and the mother sought possession of . .

Cited by:

Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Lists of cited by and citing cases may be incomplete.

Family, Contract

Updated: 29 May 2022; Ref: scu.251173

De Gafforj (Appeal: Hadkinson Order): CA 20 Sep 2018

Application by A (‘the wife’) for an order preventing H (‘the husband’) from pursuing an appeal that is awaiting determination by this court at a hearing on the basis that he is in contempt of court by having failed to comply with orders for maintenance pending suit, costs and a legal services payment order. The order sought is known as a Hadkinson order after the decision in Hadkinson v Hadkinson [1952] P 285.
Held: Granted

Citations:

[2018] EWCA Civ 2070

Links:

Bailii

Jurisdiction:

England and Wales

Family, Contempt of Court

Updated: 29 May 2022; Ref: scu.625407

M v M: 1995

The court considered the consequences of mis-disclosure in ancillary relief proceedings. Thorpe J said: ‘Conduct is only relevant in so far as the wife relies upon the manner in which the husband has conducted these proceedings. Ordinarily speaking, it seems to me that the manner in which proceedings are misconducted is to be reflected in orders for costs rather than directly in the scale of the awarded sum. However, this seems to me to be the exceptional case where the husband’s strategy has been so extreme that it would be inequitable to disregard it. It seems to me that it is appropriate to look at the quantification of the wife’s share not of what remains today but of what would remain today had that policy of waste and destruction not been pursued.’

Judges:

Thorpe J

Citations:

[1995] 3 FCR 321

Statutes:

Matrimonial Causes Act 1989 25(2)(g)

Jurisdiction:

England and Wales

Cited by:

Cited – Tavoulareas v Tavoulareas (2) CA 19-Nov-1996
Both husband and wife had independent means, and neither worked. The wife had spent pounds 100,000k on Children Act proceedings, and sought ancillary relief. The judge had made an order on capital to reflect the fact that if those costs had not been . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 29 May 2022; Ref: scu.235327

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 reconsidered because its basis had been undermined by supervening events, the court should look again at the issues, but as they stood at the time of the order. The ultimate destination of a deceased’s estate was not a proper consideration. Taking all matters into account the order was varied to reduce the lump sum payable.

Citations:

[1992] Fam 69, [1991] 2 All ER 306

Statutes:

Matrimonial Causes Act 1973 25(2)

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 29 May 2022; Ref: scu.224374

Vervaeke v Smith: HL 1983

A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was void ab initio on the ground that the marriage was merely a device to obtain a British passport so that she could work as a prostitute without being deported and that the parties had no intention of living together. She then applied for a declaration in the English court that the Belgian decree was entitled to be recognised in England under the 1933 Act, and the bilateral convention between the UK and Belgium. She lost at first instance and in the Court of Appeal.
Held: Her appeal was dismissed. A marriage must be recognised as legally valid if the requirements of formality and capacity have been met irrespective of the intentions of the parties. The earlier English judgment created to an estoppel per rem judicatam which precluded reliance on the Belgian decree. Recognition of the Belgian decree should be refused on grounds of public policy:
Lord Hailsham of St Marylebone LC described the rule in Henderson v. Henderson as ‘both a rule of public policy and an application of the law of res judicata’ and said of it: ‘whatever the limits of Henderson v. Henderson (1843) 3 Hare 100 (which I regard as a sound rule in ordinary civil litigation) may ultimately turn out to be, I believe that it must apply to a case like the present, where the petitioner in the first proceedings not merely does not rely on the grounds then already in theory available to her, but deliberately conceals the real facts (on which she now relies) from the court in order to put forward a bogus case which is radically inconsistent with them.’
Lord Hailsham approved the statement by Ormrod J at first instance: ‘Where a man and a woman consent to marry one another in a formal ceremony, conducted in accordance with the formalities required by law, knowing that it is a marriage ceremony, it is immaterial that they do not intend to live together as man and wife. It is, of course, quite otherwise where one of the parties believes that the ceremony is something different, e.g., a formal betrothal ceremony as in Kelly (Orse. Hyams) v. Kelly (1932) 49 T.L.R. 99 … or as in Mehta (Orse. Kohn) v. Mehta [1945] 2 All E.R. 690, a ceremony of religious conversion. In such cases the essence of marriage, the mutual exchange of consents accompanied by the formalities required by law, is missing and such marriages are, therefore, void or perhaps voidable. On the other hand, if the parties exchange consents to marry with due formality, intending to acquire the status of married persons, it is immaterial that they intend the marriage to take effect in some limited way or that one or both of them may have been mistaken about or unaware of some of the incidents of the status which they have created. To hold otherwise would impair the effect of the whole system of law regulating marriages in this country, and gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community. Lord Merrivale in Kelly (Orse. Hyams) v. Kelly, 49 T.L.R. 99, 101 said: ‘In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage of law could be played with by people who thought fit to go to a register office and subsequently, after some change of mind, to affirm that it was not a marriage because they did not so regard it.’ See also the observations of Hodson J. in Way v. Way [1950] P. 71, 79, approved by the Court of Appeal in Kenward v. Kenward [1961] P. 124, 133 and Silver v. Silver [1955] 2 All E.R. 614.’
Lord Simon of Glaisdale said: ‘There is little authority for refusing, on the ground of public policy, to recognise an otherwise conclusive foreign judgment – no doubt because the conclusiveness of a judgment of a foreign court of competent jurisdiction is itself buttressed by the rule of public policy, interest republicae ut sit finis litium, the ‘commonwealth’ in conflict of laws extending to the whole international community.’ Our perceptions of public policy must at least be tested against perceptions elsewhere even if: ‘There appears to be no inherent reason why, giving every weight to the international spirit of the conflict of laws, we should surrender our own policy to that of any foreign society.’

Judges:

Lord Simon of Glaisdale, Lord Hailsham LC

Citations:

[1983] 1 AC 145, [1982] 2 All ER 144, [1982] 2 WLR 855

Statutes:

Foreign Judgments (Reciprocal Enforcement) Act 1933

Jurisdiction:

England and Wales

Citing:

Appeal from – Vervaeke v Smith CA 1981
The issue was whether a Belgian decree pronouncing void a marriage celebrated in England should be recognised here. The parties had entered into the marriage with no intention of ever living together. Relying on its notion of public policy, the . .
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 by:

Cited – Soleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
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 – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – Her Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 29 May 2022; Ref: scu.219311

Regina and Secretary of State for Home Department v Gavin Mellor: Admn 31 Jul 2000

Citations:

[2000] EWHC Admin 385

Links:

Bailii

Cited by:

Appeal from – Regina v Secretary of State for Home Department ex parte Mellor CA 4-Apr-2001
A prisoner had no right to facilities to artificially inseminate his wife. In this case, he might not be released for several years, and there were no medical reasons advanced for finding exceptional reasons under the Department policy. Provided the . .
Lists of cited by and citing cases may be incomplete.

Prisons, Family, Human Rights, Health

Updated: 29 May 2022; Ref: scu.140200

A Elaine Jordan v Roy Gregory Jordan: Admn 12 Jul 1999

The parties had married and divorced and made a financial settlement in the US, but the husband had returned to live in the UK. The wife now sought in effect to enforce the balance of the US order here.

Judges:

Simon Brown LJ, Auld LJ, Thorpe LJ

Citations:

[1999] EWHC Admin 666, [2000] 1 WLR 210, [1999] 2 FLR 1069, [1999] 3 FCR 481, [1999] Fam Law 695

Links:

Bailii

Cited by:

Appeal from – Jordan v Jordan CA 29-Jul-1999
Where a divorce had been in a competent foreign court between parties then living there, and the ancillary relief had been granted by that court, an application to enforce the ancillary relief order should first be made to the original court, and . .
Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Cited – Traversa v Freddi CA 14-Feb-2011
Jurisdiction in Cross border divorce
The parties had divorced in Italy. After the wife sought possession of her house in London where H lived, he appealed against refusal of leave to apply for an order under the 1984 Act, the court having found insufficient substantial grounds for . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 28 May 2022; Ref: scu.139930

S v S: FD 14 Jan 2014

The court was asked to approve a settlement reached under the IFLA arbitration scheme.
Held: The order was approved, but the court took the opportunity to give guidance.

Judges:

Sir James Munby P

Citations:

[2014] EWHC 7 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dean v Dean FD 1978
The wife said that she had not got a good bargain in an agreement settling ancillary relief applications.
Held: The court must have regard to s.25 of the Matrimonial Causes Act, but also to: ‘Conduct of the parties in all the circumstances . . . .
Cited – Brockwell v Brockwell CA 5-Nov-1975
Ormrod LJ said: ‘But it must be a matter entirely for the judge to look at all the facts and the financial situation of each party and taking into account the fact that they made this agreement which to my mind is a very important piece of conduct . .
Cited – Hyman v Hyman HL 1929
The husband had left the wife for another woman. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of 20 pounds for the life of the wife. The deed included a covenant . .
Cited – Wright v Wright 1970
In the course of a settlement of divorce proceedings, a wife agreed to withdraw her claim for maintenance. She sought to re-open it.
Held: the principle of Hyman v. Hyman applied, notwithstanding that the agreement between the parties had been . .
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 – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – X v X (Y and Z intervening) FD 9-Nov-2001
The court considered an agreement under which the quid pro quo for the payment of a sum of money was a husband’s agreement not to defend his wife’s petition for divorce grounded on his behaviour (even though he believed that he had grounds for . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 28 May 2022; Ref: scu.519674

‘F’ v Child Support Agency: Admn 25 Mar 1999

A party refusing to agree to a blood sample must be in peril of having adverse inferences drawn against him in any paternity dispute. This applied even where the law provided a presumption of paternity, and the inference was capable of overriding that presumption.

Citations:

Times 09-Apr-1999, Gazette 28-Apr-1999, Gazette 12-May-1999, [1999] EWHC Admin 262

Links:

Bailii

Statutes:

Child Support Act 1991 27

Child Support, Family

Updated: 28 May 2022; Ref: scu.139526

Gohil v Gohil (No 2): CA 13 Mar 2014

The parties had agreed financial provision on their divorce, but W subsequently discovered what she said was material non-disclosure by H. The court was now asked whether a court of first instance had jurisdiction to set aside a final financial relief order.
Held: H’s appeal against such an order succeeded. A first instance judge did not have such a jurisdiction where the only basis was that evidence was available which would be admissible before the Court of Appeal applying their guidelines.

Judges:

Arden, Pitchford, McFarlane LJJ

Citations:

[2014] EWCA Civ 274, [2014] WLR(D) 126, [2014] 3 WLR 717, [2014] 2 FCR 455, [2014] Fam Law 1103, [2015] Fam 89, [2015] 1 FLR 178

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Appeal from – Gohil v Gohil FD 25-Sep-2012
The parties had divorced and financial relief settled. W now applied to have the order set aside on the grounds of alleged serious material non-disclosure, fraud and misrepresentation by the husband. W had attended his later trial and obtained much . .
See Also – Crown Prosecution Service and Another v Gohil CA 26-Nov-2012
The CPS had obtained evidence through letters of request. Mr and Mrs Gohil had previously divorced and reached a financial settlement. The evidence apparently disclosed further substantial assets which W said had not been disclosed in the settlement . .

Cited by:

Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Appeal from – Gohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 26 May 2022; Ref: scu.522394

Harris v Harris: CA 11 Jun 1997

The interests of the family in ancillary relief proceedings had to be postponed to those of the victims of the dishonest husband.

Citations:

Unreported, 11 June 1997

Jurisdiction:

England and Wales

Cited by:

Cited – Crown Prosecution Service v Richards and Richards CA 27-Jun-2006
The court was asked how to resolve the conflict between a public policy imperative to deprive offenders of the fruits of their crime and the requirement that dependants are provided for after divorce when the only funds available for both are the . .
Lists of cited by and citing cases may be incomplete.

Family, Criminal Practice

Updated: 26 May 2022; Ref: scu.244186

Brock v Wollams: CA 1949

A child had been adopted in fact and lived with the tenant for many years, but had not been formally adopted under the Act claimed to inherit the tenancy on his death.
Held: He was to be considered to be a member of the former tenant’s family living with him at his death within the meaning of the Act of 1920. Both de facto adopted and illegitimate children were included as family. CohenLJ: ‘The question the county court judge should have asked himself was this: Would an ordinary man, addressing his mind to the question whether [the daughter] was a member of the family or not, have answered ‘yes’ or ‘no’? To that question I think there is only one possible answer, and that is ‘yes’.’ (‘the ‘Cohen Question’) and ‘It seems to me that ‘members of the tenant’s family’ within section 12 sub-section 1(g) of the Act of 1920, include not only legitimate children but also step-children, illegitimate children and adopted children, whether adopted in due form of law or not.’ (Denning LJ) The test was that the ‘trial judge should ask himself this question: would an ordinary person, addressing his mind to the question whether the defendant was a member of the family, have answered ‘yes’ or ‘no’? ‘ The narrow meaning of relations by blood or marriage was rejected, so also was the idea that ‘family’ could be equated with ‘household.’ A bond which goes no further than the fact that the group are living under the same roof is not enough.

Judges:

Bucknill LJ, Cohen LJ, Denning LJ

Citations:

[1949] 2 KB 388

Statutes:

Adoption of Children Act 1926

Jurisdiction:

England and Wales

Citing:

Approved – Price v Gould 1930
In relation to wills and settlements the legislature had used the word ‘family’ ‘to introduce a flexible and wide term’ so that brothers and sisters were to be treated as members of the family. The word was a ‘popular, loose and flexible . .

Cited by:

Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Approved – Carega Properties SA v Sharratt CA 1979
The Court referred to the ‘Cohen’ Question: ‘. . it is for this court to decide, where such an issue arises, whether, assuming all the facts found by the judge to be correct, the question may, as a matter of law, within the permissible limits of the . .
Cited – Sheffield City Council v Wall (Personal Representatives of) and Others CA 30-Jul-2010
The claimant had been a foster son and was now the administrator of the estate of the deceased tenant. He sought to occupy the property as a successor under the 1985 Act. He said that as a former foster child, he had become a member of the . .
Lists of cited by and citing cases may be incomplete.

Housing, Family

Updated: 25 May 2022; Ref: scu.215903

Tom Omoghegbe Ikimi v Teresa Omawumi Ikimi: CA 13 Jun 2001

A petitioner could issue a petition for divorce on the basis of being habitually resident in the UK, even though she would also have habitual residence elsewhere. In this case she had been in England for 161 days out of the year in question. Nevertheless, ordinary residence meant habitual and normal residence adopted voluntarily and for settled purposes apart from temporary absences. That interpretation was appropriate to be applied to the terms ‘ordinarily’ and ‘habitually’ resident, and that meaning should be adopted consistently in the interpretation of family law statutes.

Citations:

Times 18-Jul-2001, Gazette 05-Jul-2001, [2001] EWCA Civ 873, [2002] Fam 72

Links:

Bailii

Statutes:

Domicile and Matrimonial Proceedings Act 1973 5(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Lists of cited by and citing cases may be incomplete.

Family, Immigration

Updated: 25 May 2022; Ref: scu.136125

EDG v RR: FD 20 Oct 2015

Holman J said: ‘This case seems to me to be yet another example of parties who have allowed their litigation to become completely out of control and to lack any proportionality to the underlying sums in issue.’

Judges:

Holman J

Citations:

[2015] EWHC 3097 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 25 May 2022; Ref: scu.554080

S v S: FD 29 Apr 2013

W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been substantially different from the heads of agreement incorporated into the draft, unsealed order which I approved. Accordingly, notwithstanding that the husband is guilty of non-disclosure, in all the circumstances I conclude that the non-disclosure was not material.’

Judges:

Sir Hugh Bennett

Citations:

[2013] EWHC 991 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bokor-Ingram v Bokor-Ingram CA 4-Mar-2009
W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed. . .
Cited – Gordon (formerly Stefanou) v Stefanou CA 2010
H and W first separated in 1996, with W petitioning for divorce in 2003 for 5-years’ separation. In 1999 H began a company which proved very successful. An ancillary relief order was made in 2007 but W now sought to set that order aside for a . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Walkden v Walkden CA 25-Jun-2009
W sought to plead as a Barder event the fact that certain shares had subsequently been sold by H at a substantially higher value than had been anticipated on the making of the financial relief order on the parties’ divorce. Alternatively, she . .
Cited – C v C FD 2012
The court considered the application of the test of materiality when a party gave disclosure in family proceedings. . .

Cited by:

At FD – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Appeal from – Sharland v Sharland CA 10-Feb-2014
Appeal against the order of Sir Hugh Bennett dismissing the application of the appellant wife to resume the hearing of her claim for financial provision following her divorce from the respondent.
Held: (Briggs LJ dissenting) The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 23 May 2022; Ref: scu.509149

NG v SG: FD 9 Dec 2011

The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: The appeal was allowed. The judge’s decision was wrong in that he had allowed fresh evidence to be admitted, even with the consent of ocunsel, after oral evidence had been concluded; the suggestion of capitalisation of the proposed payment had not come from the parties, and the court had drawn inferences as to the husband’s wealth which were neither properly drawn nor reasonable. A retrial was ordered.
Mostyn J set out the princoiples as follows: ‘where the court is satisfied that the disclosure given by one party has been materially deficient then:
i) The Court is duty bound to consider by the process of drawing adverse inferences whether funds have been hidden.
ii) But such inferences must be properly drawn and reasonable. It would be wrong to draw inferences that a party has assets which, on an assessment of the evidence, the Court is satisfied he has not got.
iii) If the Court concludes that funds have been hidden then it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms.
iv) In making its judgment as to quantification the Court will first look to direct evidence such as documentation and observations made by the other party.
v) The Court will then look to the scale of business activities and at lifestyle.
vi) Vague evidence of reputation or the opinions or beliefs of third parties is inadmissible in the exercise.
vii) The Al-Khatib v Masry technique of concluding that the non-discloser must have assets of at least twice what the Claimant is seeking should not be used as the sole metric of quantification.
viii) The Court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that than that the Court should be drawn into making an order that is unfair to the Claimant.’
It would be dangerous to rely on: ‘an inevitable inference was that that the husband’s wealth, whatever it may be, was such that, were he to make the full and frank disclosure which he ought to but had not made, the court applying White v White would award the wife even more than she was asking for. A frank revelation of the truth would be even more damaging to the husband than the adverse inferences to be drawn from his non-disclosure. Put another way, the truth would be more painful to him than the consequences of non-disclosure ‘

Judges:

Mostyn J

Citations:

[2011] EWHC 3270 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – J-P C v J-A F FD 1955
Sachs J considered the consequences of the revelation of a failure by a party to ancillary relief proceedings to meet his disclosure obligations: ‘In cases of this kind, where the duty of disclosure comes to lie on a husband; where a husband has – . .
Cited – Lykiardopulo v Lykiardopulo CA 19-Nov-2010
The court was asked as to how a Family Division judge might decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. H and family members had . .
Cited – 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 – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – FZ v SZ and Others (ancillary relief: conduct: valuations) FD 5-Jul-2010
The court heard an application for ancillary relief and variation of a post nuptial settlement. Each party made allegations of misconduct against the other, and the litigation had been bitter and protracted. W had obtained copies of H’s private . .
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 – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – Sherrington and Another v Sherrington CA 29-Dec-2006
The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .
Cited – In re AR (A Child: Relocation) FD 10-Jun-2010
Both parents had parental responsibility. The French mother wished to return to live in France and to take the five year old child with her, applying to court for the appropriate order.
Held: The court pointed to the real difficulties always . .
Cited – AA v NA (Appeal: Fact-Finding) FD 10-Jun-2010
Mostyn J discussed the situations where an appellate court might set aside factual findings by a first instance judge: ‘In my opinion an appellate court would only be able to say that a fact-finder has plainly got the wrong answer if:
(i) His . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 23 May 2022; Ref: scu.449879

Commissioners of Customs and Excise v A: A v A: CA 22 Jul 2002

The Customs appealed an order allowing a judge in divorce ancillary relief proceedings to make an order transferring the matrimonial home and two life policies in such a way as would defeat their attempt to enforce recovery under the 1994 Act.
Held: The customs had not established that the 1994 had any statutory priority. Both Acts gave discretion to the judge, and the decisions will vary from situation to situation, and it was not axiomatic that one Act took precedence over the other. In appropriate cases, collusion between spouses could be dealt with after the event by the Customs establishing absence of full disclosure to the court making the order. The primary task of a court is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way, rather than to engage in academic discussion.

Judges:

Lord Justice Schiemann, Lord Justice Judge and Mr Justice Wall

Citations:

Times 25-Jul-2002, [2003] 2 All ER 736, [2003] Fam 55

Statutes:

Matrimonial Causes Act 1973 24, Drug Trafficking Act 1994 29

Jurisdiction:

England and Wales

Citing:

Affirmed – Ahmad v Ahmad CA 21-Jul-1998
. .

Cited by:

Cited – Parker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
Cited – Gibson v Revenue and Customs Prosecution Office CA 12-Jun-2008
The claimant’s husband had been made subject to a criminal confiscation order in the sum of pounds 5.5 million. She now sought to appeal an action against life policies in which she claimed a 50% interest.
Held: Despite the finding that she . .
Lists of cited by and citing cases may be incomplete.

Family, Customs and Excise

Updated: 22 May 2022; Ref: scu.174392

Ahmed and Another v Mustafa: CA 17 Mar 2014

‘Where a party to a marriage has taken a full part in contested financial provision proceedings, which have resulted in a comprehensive determination of all financial issues between the parties, what jurisdiction, if any, does the court in England and Wales have to prevent that person from seeking to pursue a fresh application for financial provision with respect to the same marriage in a foreign jurisdiction?’

Judges:

Lord Justice McFarlane

Citations:

[2014] EWCA Civ 277

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 20 May 2022; Ref: scu.522500

Wallis v Wallis: HL 5 Aug 1993

(Scotland) The valuation of the matrimonial home was to be taken as at the date of the couple’s separation. The House affirmed the decision of the Court of Session.

Judges:

Lord Keith of Kinkel

Citations:

Times 05-Aug-1993, 1993 SC (HL) 49, [1993] UKHL 16, [1993] EG 148 (CS), 1993 SLT 1348, 1993 SCLR 800

Links:

Bailii

Statutes:

Family Law (Scotland) Act 1985 8 9 10

Jurisdiction:

England and Wales

Citing:

Appeal from – Wallis v Wallis SCS 1992
The effect of section 10(3)(b) of the 1985 Act was that the whole of the wife’s share of the increase in its value after the date of separation which passed to the husband as a result of the sheriff’s order had to be left out of account in the . .

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 . .
Lists of cited by and citing cases may be incomplete.

Scotland, Family

Updated: 20 May 2022; Ref: scu.90263

SRJ v DWJ (Financial Provision): CA 20 Oct 1999

There is no presumption in favour of a clean break provision in an ancillary relief claim. A nominal award of maintenance was appropriate where the wife’s long dependency and continued responsibility for children made future earning capacity problematic. A dismissal of a claim for maintenance where the wife was relatively mature should not be expected. Fairness requires that the aspect of compensation should be taken into account by the court when exercising its statutory powers

Citations:

Gazette 20-Oct-1999, [1998] EWCA Civ 1634, [1999] 2 FLR 176

Links:

Bailii

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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 20 May 2022; Ref: scu.89463

Re Baggaley: FD 22 May 2015

‘I have before me a number of matters relating to Nigel Baggaley. Mr Baggaley comes before the court in four different capacities. First, he is a pertinacious litigant on his own account. Secondly (I put the matter descriptively, without pre-judging any issue I may have to decide), he is the moving spirit behind two limited liability companies that provide legal advice and legal services: McKenzie Friends 4U Limited and Diy Law Shop Limited. McKenzie Friends 4U Limited is seemingly dormant; Diy Law Shop Limited has as yet filed no accounts. They have operated out of premises in Hinckley in Leicestershire: previously at 77 Windrush Drive, more recently at 52 Rugby Road. Thirdly, he acts as a McKenzie friend. Fourthly, he has a Facebook account.’

Judges:

Sir James Munby P FD

Citations:

[2015] EWHC 1496 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Legal Professions

Updated: 20 May 2022; Ref: scu.547087

Holmes v Holmes: 1990

(Australia) Cohen J considered the distribution of assets (in particular a lottery win) on divorce, saying: ‘Yet, ignoring any contribution to the price of the winning ticket, this part of the winnings was brought into the pool of family assets by the wife, and no contribution to it was made by the husband’ Rather than regarding the win automatically as though there was no contribution by either party, concluded that a windfall must be looked at in all of the circumstances; in particular to have regard to the effort made by a party to achieve the windfall, as well as the timing of the windfall.

Judges:

Cohen J

Citations:

(1990) FLC 92-181

Jurisdiction:

England and Wales

Cited by:

Cited – S v AG (Financial Remedy: Lottery Prize) FD 14-Oct-2011
The court considered how to treat a lottery win of andpound;500,000 in the context of an ancillary relief application on a divorce.
Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .
Lists of cited by and citing cases may be incomplete.

Family, Commonwealth

Updated: 20 May 2022; Ref: scu.445481

Von Lorang v Administrator of Austrian Property: 1927

Viscount Haldane said: ‘[T]he marriage gives the husband and wife a new legal position from which flow both rights and obligations with regard to the rest of the public. The status so acquired may vary according to the laws of different communities.’

Judges:

Viscount Haldane

Citations:

[1927] AC 641

Jurisdiction:

England and Wales

Cited by:

Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 20 May 2022; Ref: scu.270009

Maclurcan v Maclurcan: CA 1897

A wife sought a divorce petition for her husband’s adultery. On her application for maintenance, a sum of andpound;90 per annum was to be secured for her life on interests of the husband under two wills.
Held: The court confirmed the report and directed that: ‘The payment of andpound;90 per annum, payable monthly, be secured to petitioner for her life on the share of residue taken by respondent under the two wills referred to in the said report, and that a deed of assignment of respondent’s interest on the terms mentioned in the said report be drawn as agreed between the parties, or settled by a conveyancing counsel of the Chancery Division of the court’.
The husband later claimed he was being put to needless expense in formally completing a security. The wife was content to continue to receive the monthly payments and did not press for the completion of any security. Thereafter, the parties agreed changes to the amount of maintenance payable by the husband, and eventually the wife executed a deed releasing the annuity and agreeing not to enforce the court order. Subsequently, the wife applied to set aside the release and for an order that the husband pay the annuity of andpound;90 per annum directed by the original order. The judge at first instance concluded that since the original order had not been perfected by the completion of the security the wife’s release was ineffective, and he ordered the husband to carry out the terms of the original order and to execute a deed of security. The husband appealed, contending that the wife was in a position to release the annuity as soon as the order was made. For the wife it was contended that until the security was perfected the wife had nothing to release.
Held: The husband’s appeal succeeded. An order for periodical payments to be secured on identified property, with provision for the security to be completed by the execution of a deed in appropriate form, has the effect of creating an immediate equitable charge over the property pending the completion of the security in accordance with the order.
Lindley LJ began by considering under what jurisdiction the original order was made. He concluded that it was made under section 32 of the Divorce and Matrimonial Causes Act 1857, in the following terms: ‘The court may, if it shall think fit, on any [decree of dissolution of marriage] order that the husband shall, to the satisfaction of the court secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable, and for that purpose may refer it to any one of the conveyancing counsel to the court of Chancery to settle and approve of a proper deed or instrument to be executed by all necessary parties; . . .’ He went on: ‘The moment this order was made the wife had an equitable charge on the property which could be enforced at once.’
Chitty LJ agreed: ‘The charge is given by the order, and the deed is only for the purpose of carrying out the order.’

Judges:

Lindley LJ

Citations:

(1897) 77 LT 474

Jurisdiction:

England and Wales

Cited by:

Doubted – Mountney v Treharne CA 8-Aug-2002
In ancillary relief proceedings in a divorce, the husband had been ordered to transfer his interest in property to his wife. Before it was put into effect, he became insolvent. The wife and receiver competed for the interest to have been . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.183329

Sudershan Kumar Rampal v Surendra Rampal: CA 19 Jul 2001

The parties were divorced, but when the husband applied for ancillary relief, the wife petitioned for nullity on the basis that the marriage was bigamous. The husband countered that she had known that his first marriage had only ended after this marriage. His application was struck out under 25(2)(g)
Held: The husband’s application was re-instated on his appeal. There is no universal rule preventing a bigamist from exercising his statutory rights to ancillary relief, and the ex turpa non oritur actio rule must be applied according to the context. The judge had failed to allow for the knowledge of the wife of the fact of the bigamy, and the ancillary relief application should proceed. ‘As a general proposition I am not in favour of strike-out applications in the field of ancillary relief. The court has abundant discretion conferred by the statute itself and particularly section 25(2)(g), requiring the court in particular to have regard to the conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard it. In the case of a statutory claim that is obviously dishonourable, modern practice enables the judge to curtail the claim at an early stage in the exercise of discretion under section 25 rather than on the application of any rule of public policy. ‘ and ‘I do not regard the rule in Whiston v Whiston as extending to exclude every culpable bigamist whatever the circumstances of the case. The court cannot be deprived of the freedom established through a line of cases in other fields to evaluate the nature of the crime itself.’

Judges:

The President – Lady Justice Butler-Sloss, Lord Justice Thorpe, Lord Justice Robert Walker

Citations:

Gazette 19-Jul-2001, [2001] EWCA Civ 989

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 23 25(2)(g)

Jurisdiction:

England and Wales

Citing:

Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Binding – Whiston v Whiston CA 8-May-1995
A bigamist is unable to claim ancillary relief in the second marriage; would be against public policy. Since bigamy was a serious crime which undermined fundamental notions of monogamous marriage, the Court would not as a matter of public policy . .
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 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 . .
Cited – Re Royse (Deceased) CA 1985
The wife sought to claim under the 1975 Act despite having been convicted of her husband’s manslaughter from diminished responsibility. She was the sole beneficiary under his will but was precluded by her conviction from taking any benefit under the . .
Cited – Re H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.85661

Practice Directions (Family Proceedings: Costs): FD 4 May 1999

Family Courts will continue to have jurisdiction under the Inheritance and the Trusts of Land provisions. The new CPR rules on costs will apply in the Family Courts where the nearest similar procedural steps will be applied for this purpose.

Citations:

Times 04-May-1999

Statutes:

Civil Procedure Rules Rule 2.4

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.84970

Practice Note (Family Proceedings: Vacation Business): FD 9 Jul 1999

Lists arrangements for family hearings during the long vacation, including Injunctions and committals and releases, children application less than one day, a matter certified as vacation business, and hearings of more than a day certified by a High Court Judge.

Citations:

Times 09-Jul-1999

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.84982

Levy v Legal Services Commission (Formerly the Legal Aid Board): CA 10 Nov 2000

A costs order made in the course of family proceedings had the same protection against enforcement through insolvency proceedings as do other family orders. No provable bankruptcy debt arose because it was made under an order in family proceedings. There were no special circumstances to require the court to exercise its discretionary jurisdiction to found a bankruptcy petition on a non-provable debt. A party served with a statutory demand based upon a non-provable debt has the right to have the demand set aside, since there was no realistic prospect of a bankruptcy order following.

Citations:

Gazette 30-Nov-2000, Times 01-Dec-2000, [2000] EWCA Civ 285

Links:

Bailii

Statutes:

Insolvency Rules 1986/1925 12.3(2)(a)

Jurisdiction:

England and Wales

Insolvency, Family, Legal Aid

Updated: 19 May 2022; Ref: scu.83039

First National Bank Plc v Walker and Another: CA 23 Nov 2000

A claim that a bank’s charge should be set aside as having been obtained by the undue influence of a co-mortgagee was parasitic upon a claim as between the co-mortgagors in family proceedings. The wife sought as against the bank to challenge the validity of the charge, but asserted the existence of the charge in the course of proceedings which continued in parallel to the possession proceedings. She could not blow hot and cold. The claim against the husband and subsequent transfer had included an explicit acknowledgement by her of the charge, and that decided the issue between her and the bank.

Citations:

Times 13-Feb-2001, [2000] EWCA Civ 3015, [2001] 1 FCR 21, [2001] 1 FLR 505, [2001] Fam Law 182

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Smith v Skanska Construction Services Ltd QBD 29-Jul-2008
The court considered whether the driver of a vehicle involved in a fatal road accident in Thailand was driving within the authority of the UK employers. The driver was not an employee but had authority to use company vehicles for tasks for the . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Family, Banking, Land

Updated: 19 May 2022; Ref: scu.80561

Dorney-Kingdom v Dorney-Kingdom: CA 25 Jul 2000

A court may not make an original order for child maintenance, save by consent. The practice of disguising such an order, as part of spousal maintenance, pending a determination by the Child Support Agency, was only legitimate where there was included a real element of spousal maintenance. Simply calling child maintenance spousal maintenance is not correct or legitimate.

Citations:

Times 25-Jul-2000, Gazette 27-Jul-2000

Statutes:

Child Support Act 1991 8(5)

Jurisdiction:

England and Wales

Children, Family, Child Support

Updated: 19 May 2022; Ref: scu.80101

D v P (Forum Conveniens): FD 7 Oct 1998

Where parties had divorced here, but had previously entered into a separation agreement abroad, it was proper to stay the ancillary relief proceedings here, and prefer the jurisdiction where the agreement had been made.

Citations:

Gazette 07-Oct-1998, [1998] 2 FLR 25

Cited by:

Cited – Moore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 19 May 2022; Ref: scu.79765

D v D (Recognition of Foreign Divorce): FD 13 Oct 1993

Ghanaian dissolution of marriage was invalid and not recognised here since the wife had not been allowed any involvement.

Citations:

Independent 13-Oct-1993, [1994] 1 FLR 38

Statutes:

Family Law Act 1986 46

Jurisdiction:

England and Wales

Cited by:

Cited – Duhur-Johnson v Duhur-Johnson FD 3-May-2005
The husband sought to stay divorce proceedings commenced here by his wife, saying that they had already been divorced in Nigeria. The wife said the Nigerian proceedings should not be recognised in English law.
Held: The cases established: 1) . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.79757

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 narrow, there is the risk that information as to the nature and extent of the [wife’s] financial circumstances may be lost to the detriment of the husband and to the obstruction of the court in its duty to carry out the s.25 exercise as between the husband and the wife.’

Judges:

Thorpe J

Citations:

Gazette 29-Nov-1995, [1995] 2 FLR 497

Statutes:

Matrimonial Causes Act 1973 825

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.79761

C v C and Another: FD 30 Sep 2015

Two applications which concern the continuation or, alternatively, discharge of freezing injunctions secured in the context of ongoing divorce proceedings.

Judges:

Roberts J

Citations:

[2015] EWHC 2795 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.553911

D v D: FD 2 Mar 2015

Application for financial remedy orders issued by Mrs D in September 2012. The Respondent is her former husband, Mr D.

Judges:

Roberts J

Citations:

[2015] EWHC 1393 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.553907

Brooks v Brooks: HL 29 Jun 1995

A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court sought to define a marriage settlement: ‘In the Matrimonial Causes Act 1973 settlement is not defined, but the context of section 24 affords some clues. Certain indicia of the type of disposition with which the section is concerned can be identified reasonably easily. The section is concerned with a settlement ‘made on the parties to the marriage.’ So, broadly stated, the disposition must be one which makes some form of continuing provision for both or either of the parties to a marriage, with or without provision for their children.’
Lord Nicholls said: ‘This decision should not be seen as a solution to the overall pension’s problem. Not every pension scheme constitutes a marriage settlement . . If the court is to be able to split pension rights on divorce in the more usual case of a multi-member scheme where the wife has no earnings of her own from the same employer, or to direct the taking out of life insurance, legislation will still be needed.’
As to section 24: ‘The section is concerned with a settlement ‘made on the parties to the marriage.’ So, broadly stated, the disposition must be one which makes some form of continuing provision for both or either of the parties to a marriage, with or without provision for their children. Conversely, a disposition which confers an immediate, absolute interest in an item of property does not constitute a settlement of that property. The statutory provision is concerned with an order varying the terms of a settlement. This would not be an altogether apt exercise in relation to property given out-and-out and belonging to one of the parties to the marriage as his or her own absolute property. The context does not require that outright gifts of this nature should fall within the scope of the variation provision. In such a case the appropriate order on the dissolution of the marriage, if an order is needed in respect of the property, is a property transfer or property settlement order.’

Judges:

Lord Keith of Kinkel, Lord Ackner, Lord Lloyd, Lord Nicholls of Birkenhead, Lord Steyn

Citations:

Gazette 06-Sep-1995, Independent 04-Jul-1995, Times 03-Jul-1995, [1996] AC 375, [1995] 2 FLR 13, [1995] UKHL 19, [1995] Fam Law 545, [1995] 3 All ER 257, [1995] 3 FCR 214, [1995] 3 WLR 141

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Citing:

Appeal from – Brooks v Brooks CA 27-May-1994
A single member pension fund scheme was a post nuptial settlement within the Act, and was variable by the court on a divorce. No third party would be affected. . .
Cited – Bosworthick v Bosworthick CA 1927
An annuity secured by a bond was found to be a settlement. . .
Cited – Lort-Williams v Lort-Williams CA 1951
two individuals had taken out a single premium insurance policy on the life of Sir John Rolleston Lort-Williams. The benefits were payable to these trustees as ‘moneys payable under this policy, effected for the benefit of the widow or children or . .
Cited – Griffiths v Dawson and Co FD 1993
The possibility that a pension scheme might fall within the scope of section 24(1)(c) was given judicial recognition. . .

Cited by:

Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
Cited – Martin-Dye v Martin-Dye CA 25-May-2006
The court was asked how to achieve fairness in ancillary relief proceedings on a divorce as respects pension entitlements. The parties had sufficient to allow a clean break, but the assets mixture included sums invested which would be returned only . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 May 2022; Ref: scu.78677

Bater v Greenwich London Borough Council: CA 28 Sep 1999

The couple being joint tenants of the matrimonial home had applied for its purchase form the Council. Divorce proceedings commenced and she purported to terminate the joint tenancy. He applied to set aside the notice, and the Local Authority intervened. Neither the right to buy, nor the notice to terminate were dispositions of property, and the Court had no capacity to set them aside.
Held: ‘It is now established beyond a peradventure that a right to buy is dependant on the existence of a secure tenancy to which it is incidental.’

Citations:

Gazette 02-Sep-1999, Times 28-Sep-1999, [1999] EWCA Civ 1920, [1999] 2 FLR 993

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 37(2)(b)

Jurisdiction:

England and Wales

Family, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.78285

H v A (No2): FD 17 Sep 2015

The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in its original format. The court identified: ‘the risk of so called ‘jigsaw identification’ in cases where the judgment of the family court has been made public. In particular, this case highlights the issue of ‘jigsaw identification’ in family cases where there has been prior press reporting of related criminal proceedings that remains readily accessible to the public on the Internet provided one has the appropriate terms to type into a search engine, which Internet search terms can be gleaned from the facts set out in the judgment of the family court even where that judgment is published in a form which anonymises the details of the family.’
‘ the proper approach in relation to both the decision whether to publish the substantive judgment in this matter and whether to make a reporting restriction order is for the court to identify the various rights that are engaged, conduct the necessary balancing exercise between the competing rights by maintaining intense focus on the comparative importance of those specific rights, by examining and accounting for the justifications for interfering with or restricting each right and by applying the ultimate balancing test of proportionality.’
‘In the age of the Internet, where today’s news story no longer becomes tomorrow’s discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms, ‘jigsaw identification’ will arise as a potential issue in every case where the family court publishes a judgment in proceedings arising out of a set of facts that have also led to criminal proceedings that have been the subject of reports in the media. The risk of ‘jigsaw identification’ is not however a reason in itself to withhold the publication of a judgment. The question in each case will be whether, having regard to the evidence before the court and all the circumstances of the case, the interference in the Art 8 rights constituted by the risk of ‘jigsaw identification’ arising out of publication outweighs the interference in the Art 10 right of freedom of expression constituted by withholding publication.’

Judges:

MacDonald J

Citations:

[2015] EWHC 2630 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re G (Minors) (Celebrities: Publicity) CA 4-Nov-1998
Where extra publicity might attach to proceedings because of the celebrity of the parents, it was wrong to attach extra restrictions on reporting without proper cause. There remains a need to balance the need for the freedom of speech and the . .
Cited – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Re H (Freeing Orders: Publicity) CA 2005
Wall LJ said: ‘Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts, and the lack of knowledge about what happens in them, easily . .
Cited – London Borough of Barnet v X and Another FC 18-Apr-2006
Barnet County Court – Munby J considered the publication of children proceedings: ‘ In my view the public generally, and not just the professional readers of law reports or similar publications, have a legitimate – indeed a compelling – interest in . .
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Re J (A Child) (Reporting Restriction: Internet: Video) FD 5-Sep-2013
‘This case raises important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
Cited – Re C (A Child) CA 24-Mar-2015
After the conclusion of very long running litigation between mother and father as to the upbringing of their child, the court now considered the publication of its judgment.
Held: The exercise of discretion concerning the publication of the . .
Cited – In Re R (Wardship: Restrictions on Publication) CA 1994
The parents had separated and the child made a ward of court. The mother had care and control and the father had access. The father abducted the child to Israel but she was recovered. The father was extradited to stand trial here. He sought . .
Cited – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
Cited – In re X Children FD 29-Jun-2007
Munby J made clear, in the context of reiterating the principle that whilst it was a strong thing to omit or qualify the public domain proviso, that the Court can, where there is a pressing need, construct a reporting restriction order so as to . .
Cited – LM, Re (Reporting Restrictions; Coroner’s Inquest) FD 1-Aug-2007
A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
Cited – Trinity Mirror and Others, Regina (on the Application Of) v Croydon Crown Court CACD 1-Feb-2008
The defendant had pleaded guilty in the Crown Court to 20 counts of making or possessing child pornography. No direction was made for withholding the defendant’s identity in court, but the Crown Court made an order in the interest of the defendant’s . .
Cited – A Council v M and Others (Judgment 3: Reporting Restrictions) FD 20-Jul-2012
Applications were made for the protection of the identity of children and family members ahead of care and criminal proceedings. The order was resisted by several news organisations.
Held: a conclusion that the Art 8 rights of individuals . .
Cited – Birmingham City Council v Riaz and Others FD 24-Jun-2015
The Council sought a lifelong order to protect the identity of a girl about to achieve majority, who have been subject to sexual exploitation as a child.
Held: Keehan J said: ‘There comes a point, however, where evidence is not merely . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – In re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Diennet v France ECHR 26-Sep-1995
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 (publicly); No violation of Art. 6-1 (impartiality); Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .

Cited by:

Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .
Lists of cited by and citing cases may be incomplete.

Family, Media, Children

Updated: 18 May 2022; Ref: scu.552782

Roche v Roche: CA 1981

Citations:

(1981) Fam Law 243

Statutes:

Matrimonial Causes Act 1973 37

Cited by:

Applied – Shipman v Shipman FD 1991
W sought an order under s37 of the 1973 Act restraining H in divorce proceedings from disposing of or dealing with $300,000, or one half of his severance pay, whichever was the greater, pending determination of the ancillary relief proceedings.
Cited – London Borough of Harrow v Johnstone HL 13-Mar-1997
A possession action was lawful against a remaining joint tenant after a notice to terminate the tenancy had been given by the other tenant. An order against interference with possession of property did not extend to matters of the duration of the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 May 2022; Ref: scu.564372

14 Jac Cr 417 Saunders v Esterby, Hob 216, v Collateral Assumpsit, Collateral Promises Must Be Put In Writing By 29 C 2, Cap 3: 1220

An assumpsit lies against an executor upon a collateral promise of the testator ; as upon the testator’s promise to the plaintiff, if he will marry his daughter, that he shall have as much for her portion as any other of his daughters had. Judged and affirmed in error. This judgment is against former opinions for a collateral promise not broken in the life of the testator.

Citations:

[1220] EngR 167, (1220-1623) Jenk 336, (1220) 145 ER 244 (D)

Links:

Commonlii

Family, Wills and Probate

Updated: 18 May 2022; Ref: scu.461079

H v H (The Queen’s Proctor Intervening) (Validity of Japanese Divorce): FD 2006

The court considered the validity of a consensual form of divorce kyogi rikon in Japanese law, the most common form of divorce in Japan. The consent is by written form not judicial act but the signing must be followed by formal registration before a government official in prescribed form.
Held: The involvement of the state is not merely probative or surplusage merely proving a divorce the parties have achieved through their prior consent which of itself creates nothing. ‘No registration no divorce’ was not simply a description of the kyogi rikon but an essential element of proceedings.
Wildblood QC J deduced the following propositions: ‘(a) The power to refuse recognition should be exercised sparingly;
(b) The principle of comity is a relevant consideration;
(c) The subsection confers a residual discretion;
(d) The conduct of the parties leading up to the divorce may be a relevant factor;
(e) Motivation (such as in the exceptional circumstances of Chaudhary) may also be relevant;
(f) The consequences to the parties of a refusal of recognition may also be considered.’

Judges:

Wildblood QC J

Citations:

[2006] EWHC 2989 (Fam), [2007] 1 FLR 1318

Statutes:

Family Law Act 1986 46

Jurisdiction:

England and Wales

Cited by:

Cited – H v S FD 18-Nov-2011
The court was asked whether for the purposes of English divorce and connected proceedings a Talaq pronounced by the respondent husband in Saudi Arabia and placed by Deed of Confirmation before the Sharia Court is entitled to be afforded recognition . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 18 May 2022; Ref: scu.450572

Kelson v Kelson: 11 Feb 1853

A question in the cause was whether a settlement was voluntary, which was expressed to be made for ‘divers good and valuable considerations.’ No evidence had been given on the question of consideration ; and the Court was of opinion that the parties ought to have an opportunity of shewing whether there was or was not a valuable consideration for the deed ; and the case was adjourned to Chambers for that purpose.

Citations:

[1853] EngR 240, (1853) 9 Hare App 86, (1853) 68 ER 807

Links:

Commonlii

Family, Trusts

Updated: 18 May 2022; Ref: scu.294226

Kelson v Kelson: 13 Jan 1853

The statement in a deed of settlement, executed after marriage, was that it was made in consideration of 5s., and divers other good and valuable considerations. Held, that this statement did not, as against strangers to the settlement, amount to evidence that it was not voluntary; and a Defendant claiming against it as a purchaser for valuable consideration, and insisting at the Bar that the settlement was fraudulent and void under the stat. 27 Eliz. c. 4, the Court directed an inquiry whether the settlement was founded on any and what valuable Consideration.

Citations:

[1853] EngR 74 (B), (1853) 10 Hare 385

Links:

Commonlii

Family, Trusts

Updated: 18 May 2022; Ref: scu.294060

Dickens v Dickens: 9 Mar 1859

Wife’s Costs. – Wife’s Petition. – Taxed Costs during Suit – Practice – On taxation of wife’s costs in a petition for judicial separation pending suit, the registrar disallowed all costs incurred before actual proceedings taken against the husband, and various items charged for attendance on the wife’s father in connection with her case. On cause shewn against a rule nisi for a review of taxation :- The Court affirmed the registrar’s taxation as being in accordance with the practice of both the common law and ecclesiastical courts.

Citations:

[1859] EngR 391, (1859) 2 Sw and Tr 103, (1859) 164 ER 931

Links:

Commonlii

Costs, Family

Updated: 18 May 2022; Ref: scu.287743

Green v Green: 1981

Section section 37(3) of the 1983 Act was not wide enough in its terms to enable a judge to set aside a disposition granted by someone other than the husband or wife. That was because sub-section 3 only enabled a judge to give directions ‘consequential’ on setting aside a disposition which was reviewable under sub-section 2 and sub-section 2 only applied to dispositions made by one or other of the parties to a marriage.

Judges:

Eastham J

Citations:

[1981] 1 WLR 391

Statutes:

Matrimonial Homes Act 1983 37(3)

Jurisdiction:

England and Wales

Cited by:

Not applied – Ansari v Ansari and others CA 19-Dec-2008
The wife had registered her right of occupation under the 1996 Act, but the husband sold the house subject to the registered right, and the purchaser had charged the property. She now sought an order restricting the use of the proceeds of sale, and . .
Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 18 May 2022; Ref: scu.279009

Practice Direction: Court Bundles (Universal Practice to be Applied in All Courts other than the Family Proceedings Court): FD 2006

Judges:

Sir Mark Potter P

Citations:

[2006] 2 FLR 199

Jurisdiction:

England and Wales

Cited by:

Cited – X and Y, Re Bundles FD 22-Aug-2008
The court considered the continuing failure of parties to follow the requirements as to preparation of court bundles, and particularly in urgent applications: ‘This continuing failure by the professions to comply with their obligations is simply . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 18 May 2022; Ref: scu.272841

Davis v Davis: 1950

Citations:

[1950] P 125

Jurisdiction:

England and Wales

Cited by:

Cited – Bater v Bater CA 1951
The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to . .
Mentioned – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 May 2022; Ref: scu.268835