Category: Family

McCann v Wright: CA 10 Jul 1995

A court may re-impose a power of arrest in a domestic violence case without there having first been further violence. A power of arrest may be attached to a domestic violence injunction though the couple are living apart.

Citations:

Times 10-Jul-1995, Ind Summary 17-Jul-1995, Gazette 19-Jul-1995

Statutes:

Domestic Violence and Matrimonial Proceedings Act 1976 2(2)

Jurisdiction:

England and Wales

Contempt of Court, Family

Updated: 21 January 2023; Ref: scu.83504

Hashem v Shayif and Others: CA 22 Jul 2009

Judges:

Thorpe LJ, Scott Baker LJ, Sullivan LJ

Citations:

[2009] EWCA Civ 984

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – 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 . .
See Also – Hashem v Shayif and Another FD 17-Apr-2009
. .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 20 December 2022; Ref: scu.375599

Hawes v Evenden: CA 1953

The claimant had lived with the deceased tenant for 12 years and had had two children with him. They had not married.
Held: There was evidence that the claimant and the tenant and the children had lived together as a family and she was therefore a member of his family for the purposes of the Act of 1920.

Judges:

Somervell L.J

Citations:

[1953] 1 WLR 1169

Jurisdiction:

England and Wales

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

Housing, Family

Updated: 20 December 2022; Ref: scu.215907

Whaley v Whaley: CA 24 May 2011

H appealed against an order made in ancillary relief proceedings.

Judges:

Mummery, Black, LJJ, Lewison J

Citations:

[2011] EWCA Civ 617, [2011] 2 FCR 323, [2011] WTLR 1267, [2011] NPC 53, [2012] FLR 735, [2012] 1 FLR 735, [2011] Fam Law 804

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 20 December 2022; Ref: scu.440120

Robert Osborn Clark, And Dame Elizabeth Brandling His Wife, And William Pitt Esq; Son And Heir, And Executor of William Pitt, And Baldwin Pitt Gent, Plaintiffs; Susannah Brownwell And Others, Defendants: 1674

Plea of Purchase for a valuable Consideration, and G.

Citations:

[1674] EngR 67, (1674) Fin H 143, (1674) 23 ER 78 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Family, Contract

Updated: 20 December 2022; Ref: scu.406066

Tee v Tee: CA 1974

Citations:

[1974] 1 WLR 213

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 12 December 2022; Ref: scu.242417

Padolecchia v Padolecchia: FD 1968

Ante-nuptial domicile sets capacity law

The husband domiciled in Italy was divorced from his first wife in Mexico. The divorce was not recognised in Italy. The husband then went to live in Denmark and during a one day visit to England went through a ceremony of marriage with a woman domiciled in Denmark. Following the ceremony, the parties returned to Denmark to live.
Held: The law governing the capacity of a party for marriage is governed by their ante-nuptial domicile. As the Mexican divorce was not recognised in Italy the husband had no capacity to marry by the law of his domicile and therefore the marriage was void.

Judges:

Sir Jocelyn Simon P

Citations:

[1968] P 314

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 12 December 2022; Ref: scu.244722

Cornick v Cornick (No 2): CA 2 Jan 1995

The court considered the boundary of its power in ordering periodical payments: ‘I do not believe that Hale J erred in her approach in principle to this case, and I reject the submission which Mr Mostyn has made that there was a delimiting factor (as he termed it) which should have had the effect of restricting a judge hearing an application for variation to what he termed the budgetary or marital standard.’

Judges:

Sir Stephen Brown P

Citations:

[1995] 2 FLR 490

Jurisdiction:

England and Wales

Citing:

Approved – Boylan v Boylan 1988
. .
Appeal from – Cornick v Cornick (No 2) FD 1995
The court considered an application to vary an ancillary relief award and gave a wife more than the sum set out in the budget in circumstances where she had received a capital sum that, with hindsight, was far too low.
Hale J said: ‘Where such . .
See also – Cornick v Cornick (No 1) FD 1994
. .

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 – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
See also – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2022; Ref: scu.186017

Drake v Whipp: CA 30 Nov 1995

The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff appealed against a finding that she had only a 14.9% interest on a resulting trust, in the house she and the defendant had occupied together. The property had been purchased for andpound;61,000 of which she had contributed andpound;24,000, with later additional contributions to conversion works. She complained that working on a resulting trust, the costs of acquisition were given undue emphasis.
Held: A beneficial interest in a family home could be presumed from the intention of the parties and their acting in detriment. There was a constructive trust. There was undisputed evidence that she was to have an interest in the property, and she had acted to further that intention and to her detriment. The appeal was allowed, and her interest set at one third. ‘it is not easy to reconcile every judicial utterance in this well-travelled area of the law. A potent source of confusion, to my mind, has been suggestions that it matters not whether the terminology used is that of the constructive trust, to which the intention, actual or imputed, of the parties is crucial, or that of the resulting trust which operates on a presumed intention of the contributing party in the absence of rebutting evidence of actual intention.’

Judges:

Peter Gibson LJ, Lord Justice Hirst and Mr Justice Forbes

Citations:

Times 19-Dec-1995, [1996] 2 FCR 296, [1995] EWCA Civ 25, (1996) 28 HLR 531, [1996] CLY 5780

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Dyer v Dyer 27-Nov-1988
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold . .

Cited by:

Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Trusts, Housing, Family

Updated: 09 December 2022; Ref: scu.80130

Hartopp v Hartopp and Akhurst: 1899

Gorell Barnes J said: ‘Now the guiding principle which will be found running through the cases is, in my opinion, this: Where the breaking up of the family life has been caused by the fault of the respondent, the Court, exercising its powers under the above section, ought to place the petitioner and the children in a position as nearly as circumstances will permit the same as if the family life had not been broken up.’
and: ‘It follows that where the trust funds are settled, as is usual, upon the parents successively, or upon one of them for life, with remainder to the children, the Court, while it might extinguish the whole or a part of the guilty parent’s life interest and his or her power of appointment, if any, amongst the children, would not interfere to deprive the children of those interests to which they are entitled under the settlement.’

Judges:

Gorell Barnes J

Citations:

[1899] P 65

Jurisdiction:

England and Wales

Cited by:

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: 09 December 2022; Ref: scu.652166

Udny v Udny: SCS 14 Dec 1867

Circumstances in which held that a grandfather, not having lost his Scotch domicile of origin, transmitted the same to his son, who, not having lost the same, legitimated his son born out of wedlock per subsequens matrimonium. Held unnecessary to consider whether a Scotch domicile at the date of the marriage sufficient for legitimation per subsequens matrimonium.

Citations:

[1867] SLR 3 – 109

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Appeal from – Udny v Udny HL 1869
Revival of domicile of origin after loss of choice
The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 December 2022; Ref: scu.575102

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. Moore-Bick LJ said: It may be unusual for a judge to conclude that despite a deliberate failure by one party to give full and frank disclosure the resulting order should not be set aside, but ultimately that must depend on the nature of the non-disclosure and its effect on the outcome of the proceedings. In this case the husband’s non-disclosure was deliberate and dishonest, but because of the rather unusual circumstances there were good reasons for concluding that it had not resulted in an order significantly different from that which the court would otherwise have made at the conclusion of the proceedings. In my view the judge was entitled to hold that the wife had not made out sufficient grounds for re-opening the hearing. That called for an exercise of judgment on his part and in my view his decision was one that was open to him.’
Briggs LJ thought having found the deceit, ‘fraud unravels all’ and the ‘the husband’s fraud undermined both the parties’ agreement and the consent order which followed ought to have been the end of the matter, and to have led to the setting aside of the consent order, and an order for a new (or perhaps resumed) hearing.’
Macur LJ said: ‘the audacity and extensive practice of a deceit cannot be determinative of the degree of its materiality to the substance of an order of the Court. It may be material in negotiations between the parties to an action or a contract or within the hearing, not least in terms of the integrity of the participants, but, applying the ratio in Livesey v Jenkins as I consider it to be, entirely in accordance with the exposition by my Lord, Lord Justice Moore-Bick, it will not necessarily undermine the rationale or content of an order made, whether by consent or after hearing in matrimonial proceedings.
In this case Sir Hugh, not being functus officio, considered the matter having directed and received further evidence from the husband and submissions from Counsel, and determined that ultimately it did not.’
Macur LJ placed particular emphasis on the wife’s failure to cross examine the husband on his affidavit.

Judges:

Moore-Bick, Briggs, Macur LJJ

Citations:

[2014] EWCA Civ 95, [2014] 2 FCR 189

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
Appeal from – 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 . .
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 – 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 – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .

Cited by:

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

Family

Updated: 09 December 2022; Ref: scu.521110

Wood v Collins: CA 11 May 2006

W appealed a sentence (28 days suspended) for contempt of court by her estranged husband, saying it had been too lenient. The respondent had been committed for contempt of court. He had his sentence reduced on appeal. She now sought to appeal in turn.
Held: There was nothing in the rules to suggest that only a contemnor could appeal the sentence handed down.

Judges:

Thorpe LJ, Gage LJ, Hedley J

Citations:

Times 26-Jun-2006, [2006] EWCA Civ 743

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – The Government of Sierra Leone v Davenport and others CA 2002
An application was made to commit a defendant for contempt of court in failing to comply with parts of a court order.
Held: He was found to have been in contempt but the failure had been cured and no penalty beyond costs was imposed on him. . .
Lists of cited by and citing cases may be incomplete.

Family, Contempt of Court

Updated: 09 December 2022; Ref: scu.270174

Practice Note (Official Solicitor: Deputy Director of Legal Services: Cafcass: Applications for Reporting Restriction Orders): 2005

Citations:

[2005] 2 FLR 111

Jurisdiction:

England and Wales

Cited by:

Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Lists of cited by and citing cases may be incomplete.

Media, Family

Updated: 09 December 2022; Ref: scu.231164

Grigby v Cox: 1750

The court considered a claim that the husband had exercised undue influence over his wife.
Held: The court rejected any presumption of undue influence, and said that a court of equity ‘will have more jealousy’ over dispositions by a wife to a husband.

Judges:

Lord Hardwicke

Citations:

(1750) 1 Ves Sen 517

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Lists of cited by and citing cases may be incomplete.

Family, Undue Influence

Updated: 09 December 2022; Ref: scu.180575

Purnell v Purnell: 1961

Cairns J considered a request for the variation of a post-nuptial trust and said: ‘Now it is well established by authority that the variation may be such as to confer a benefit on a stranger to the settlement provided it also confers a benefit on children interested in the settlement, and I think the authorities establish that it is sufficient if the variation contains some benefit to those children which can be regarded as being approximately equivalent to what is taken from them for the benefit of the stranger.
. . the court has jurisdiction to admit an adopted child to benefit under the settlement, provided that anything which the natural children of the marriage are called upon to give up is compensated for in some sufficient way. In considering this compensation the court cannot do any exact sum, because such intangible factors as the benefit of equality, or something approaching equality, within the family can be taken into account, though there must be some pecuniary benefit as well.’

Judges:

Cairns J

Citations:

[1961] P 141

Jurisdiction:

England and Wales

Cited by:

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, Trusts

Updated: 07 December 2022; Ref: scu.652171

Whitton v Whitton: 1901

Sir Francis Jeune P said: ‘But one has in these cases to consider what is really for the benefit of the children, because I think the authorities shew that nothing must be done that on the whole would be for the disadvantage of the children. This does not so much turn on the words of the Act of Parliament, but generally on the principle that the children, being innocent parties, ought not to have their interests injuriously affected by the conduct of either of their parents.’
and: ‘It would be hard that a wife who is freed by the misconduct of her husband should not be able to appoint anything at all in favour of a second husband, or in favour of the children of a second marriage; and if, without substantial injury to the interests of the children of the first marriage, such an arrangement can be made, I think it is desirable and is in accordance with the spirit of the Act of Parliament.’

Judges:

Sir Francis Jeune P

Citations:

[1901] P 348

Jurisdiction:

England and Wales

Cited by:

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, Trusts

Updated: 07 December 2022; Ref: scu.652170

Garforth-Bles v Garforth-Bles: 1951

Pearce J said: ‘It is, in my view, to the child’s interest in another respect to allow the husband to remove a part of his fund from the settlement. He brought into the settlement reversions that were substantially all that he possessed; he now has, apart from these funds, no expectations and very little property; if, as seems likely in view of his age, he remarries, he has extremely little to settle on any future wife or children. If I refuse his request and devote exclusively to this child all the money that came from him, allowing none of it to go to any future wife or child of his, it may quite reasonably give him a feeling of injustice and impair the satisfactory relationship between father and child, a relationship of whose existence his generous dealing with the question of her maintenance gives some indication. Moreover, in the eyes of fair-minded members of the family, or friends, and of the child herself when she grows up, such an order will probably seem unjust and an excessive preference of the child’s interests to those of her father. To produce this result would cause a loss to the child which the retention of the money would not compensate. To produce a happier result by the surrender of some part of the husband’s fund would, in my view, be a benefit to the child. There may be cases where financial stringency might compel one to disregard such a benefit, owing to the necessity of keeping every available penny for the child, but this is not such a case.’

Judges:

Pearce J

Citations:

[1951] P 218

Jurisdiction:

England and Wales

Cited by:

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, Trusts

Updated: 07 December 2022; Ref: scu.652169

Colclough v Colclough and Fisher: 1933

Any variation of a post-nuptial settlement should be addressed so as to place the parties in the same position as if the marriage had not come to an end.

Judges:

Langton J

Citations:

[1933] P 143

Jurisdiction:

England and Wales

Cited by:

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.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652168

Egerton v Egerton: 1949

The court considered its power to vary a post-nuptial settlement. Barnard J said: ‘No one could quarrel with this statement as a guiding principle, but at the same time I think it would be wrong to interpret it as meaning that it is a principle which must be applied in every case, regardless of its facts. That would, in my opinion, be placing fetters on the discretion of the court which the legislature never intended.’

Judges:

Barnard J

Citations:

[1949] 1 All ER 670

Jurisdiction:

England and Wales

Cited by:

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 . .
Cited – Smith v Smith CA 1970
The husband had deserted the wife and gone abroad to work; the sole asset was the matrimonial home which was in joint names, and which constituted a post-nuptial settlement. The wife applied for variation of the settlement, whereby, on obtaining the . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652167

Cartwright v Cartwright: 1983

Sheldon J said: ‘when considering the financial background of the parties, the standard of life that they and the children have been accustomed to, and that the children will undoubtedly continue to enjoy while living with [their mother], I am of the opinion that it is of importance to the children, to their enjoyment of their father’s company and of their visits to him, as well as to the maintenance of good relations between them, that he too should have a settled and secure home to which they can come’

Judges:

Sheldon J

Citations:

(1983) 4 FLR 46

Jurisdiction:

England and Wales

Cited by:

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: 07 December 2022; Ref: scu.652165

Dormer v Ward: CA 1901

One of the assets included in the marriage settlement was a jointure rent-charge charged on certain specified hereditaments. The CA considered whether what was brought into the settlement so as to be amenable to the court’s statutory jurisdiction was the rent-charge or the hereditaments on which it was charged.
Held: Vaughan Williams LJ (with whom the Lord Chancellor and the Master of the Rolls agreed) said that it was the rent-charge: ‘I agree with what I understand to be the opinion of Gorell Barnes J, that what has been brought into settlement, in this Settlement, so far as the charges are concerned, is not the property upon which the charges are made, but the charges themselves; but there is one argument which was brought before us by Mr Danckwerts, and was also urged by him before Gorell Barnes J, with which I have yet to deal. It is this – that the whole of the hereditaments and premises comprised in the schedules to the marriage settlement were property settled by that settlement, and that the Court could therefore under the terms of s 5, which gives the Court power to make orders with reference to the application of the whole or a portion of the property settled for the benefit of children or their respective parents, order that the whole or a portion of the hereditaments and premises be applied for the benefit of the petitioner. The learned judge answers this by saying, ‘It seems a very extraordinary proposition that, because a charge – it may be a very small one – is created on a large real estate by a marriage settlement, the whole estate can be dealt with by the Court under the powers created by the sections aforesaid.’ I agree with him as to this’.

Judges:

Lord Halsbury LC, Sir A L Smith MR and Vaughan Williams LJ

Citations:

[1901] P 20

Jurisdiction:

England and Wales

Cited by:

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, Trusts

Updated: 07 December 2022; Ref: scu.652162

Prinsep v Prinsep: 1929

Hill J considered what is meant by a nuptial settlement: ‘Is it upon the husband in the character of husband or in the wife in the character of wife, or upon both in the character of husband and wife? If it is, it is a settlement on the parties within the meaning of the section. The particular form of it does not matter. It may be a settlement in the strictest sense of the term, it may be a covenant to pay by one spouse to the other, or by a third person to a spouse. What does matter is that it should provide for the financial benefit of one or other or both of the spouses as spouses and with reference to their married state.’
and: ‘But whether a settlement is within s. 192 does not depend on who is the settlor. In many ante-nuptial settlements, neither the husband nor the wife are themselves the settlors . . But whether a settlement is within s. 192 must depend on what it effects. If, in fact, it is a settlement on either husband or wife, or both in the character of husband or wife, it is wholly immaterial that it is prompted and stated to be prompted by affection only for one of them.
On the question whether a settlement is a settlement within s. 192, the motive of the settlor seems to me immaterial, except so far as it is given effect to by the terms of the deed.’
‘The main object of variation is to make proper provision for the injured spouse and the children of the marriage. And prima facie, settlements ought not to be interfered with further than is necessary for that purpose. But the Court which has annulled the marriage must not only protect the injured party, but also be fair to the wrongdoing party.’

Judges:

Hill J

Citations:

[1929] P 225

Jurisdiction:

England and Wales

Cited by:

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.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652161

Blood v Blood: 1902

Gorell Barnes J, considered the ambit of section 5 of the 1859 Act, and said: ‘Those words are extremely wide, and I am anxious that they should not, by any construction the Court may put upon them, be narrowed in any way. To narrow them would be undesirable for this reason: the various circumstances which come before the Court, and for which this section is brought into operation, are so diverse that it is to my mind extremely important that, so far as possible, the Court should have power to deal with all the cases that come before it, and, in dealing with them, to meet the justice of the case. I, therefore, do not desire to see any narrow interpretation placed upon the words of the section.’

Judges:

Gorell Barnes J

Citations:

[1902] P 78

Statutes:

Matrimonial Causes Act 1859 5

Jurisdiction:

England and Wales

Cited by:

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.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652160

Smith v Smith: CA 1970

The husband had deserted the wife and gone abroad to work; the sole asset was the matrimonial home which was in joint names, and which constituted a post-nuptial settlement. The wife applied for variation of the settlement, whereby, on obtaining the whole of the interest in the former matrimonial home, she would abandon any further claim to maintenance.
Held: The Court varied the settlement by extinguishing the husband’s interest in the house as if he were then dead and the wife had survived him, but ordered that she should forego any claim to future maintenance, lump sum, or secured provision.
Lord Denning MR (with whom both Salmon and Edmund Davies LJJ agreed) described the exercise of discretion: ‘The court can vary the established rights in those assets in whatever way it thinks fit. Its discretion is unlimited; see Egerton v Egerton [1949] 2 All ER 238. It can consider the conduct of the parties; the incomes of each; their earning capacity; their financial needs; their ages; their standards of living; the contributions made by each, and not merely their financial contributions, direct or indirect, but also any contributions made (particularly by the wife) by looking after the home and caring for the children. In short, the discretion is just as wide as that which is contained in the Matrimonial Proceedings and Property Bill now before Parliament. That will not become law until 1 January 1971. But meanwhile the courts have, by judicial decision, reached the same result.’

Judges:

Lord Denning MR, Salmon and Edmund Davies LJJ

Citations:

[1970] 1 WLR 155, [1970] 1 All ER 244

Statutes:

Matrimonial Causes Act 1965 17

Jurisdiction:

England and Wales

Citing:

Cited – Egerton v Egerton 1949
The court considered its power to vary a post-nuptial settlement. Barnard J said: ‘No one could quarrel with this statement as a guiding principle, but at the same time I think it would be wrong to interpret it as meaning that it is a principle . .

Cited by:

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: 07 December 2022; Ref: scu.652157

In Re Hunter and Hewlett’s Contract: 1907

A moiety of a freehold was settled during the life of the trustees and the survivor of them for the benefit of the two daughters of the settlor, their husbands and issue. The reversion in fee expectant remained with the settlor. It was common ground that no greater estate than an estate pur autre vie in one moiety passed by the settlement. The question was whether the daughters could sell and convey the fee simple in one moiety or only a moiety in the estate pur autre vie. The reversion was separated from the estate. Could the daughters make a good title as tenants for life under the Settled Land Act 1882 to the moiety comprised in the settlement.
Held: They could.
Swinfen Eady J said: ‘Although the reversion is separated off from the particular estate by the settlement itself and remains vested in the grantor, and is not in fact comprised in the settlement, the effect of the Act is to treat it for the purposes of the Act as if it were comprised in the subject of the settlement. Therefore the settlement is for the purposes of the Settled Land Act a settlement of the moiety of the fee, that moiety is settled land for the purposes of the Act; and each daughter, having the powers of a tenant for life, can sell and convey a half part of the moiety, the purchase-money being paid to the trustees of the settlement.’

Judges:

Swinfen Eady J

Citations:

[1907] 1 Ch 46

Statutes:

Settled Land Act 1882

Jurisdiction:

England and Wales

Cited by:

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.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652164

Hargreaves v Hargreaves: 1926

The marriage settlement included an annual sum of pounds 500 appointed by the settler. The question was whether there was any property settled other than the pounds 500.
Held: There was not: ‘to my mind, the property settled is not the whole fund out of which the 500l. was carved, but it is the 500l. and nothing else.’

Judges:

Hill J

Citations:

[1926] P 42

Jurisdiction:

England and Wales

Cited by:

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, Trusts

Updated: 07 December 2022; Ref: scu.652163

Bosworthick v Bosworthick: CA 1927

An annuity secured by a bond was found to be a settlement.

Judges:

Scrutton LJ, Romer J

Citations:

[1927] P 64

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
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: 07 December 2022; Ref: scu.652159

Smith v Smith: 1945

Denning J said: where a husband makes a continuing provision for the future needs of his wife in her character as a wife, which is still continuing when the marriage is dissolved, the provision is a `settlement’ which can be brought before the court to see whether the provision should continue now that she has ceased to be a wife. The same applies to a provision by a wife for her husband or by each or either for both. The provision usually takes the form of periodical payments either with the intervention of trustees as in an ordinary marriage settlement, or without them as in a separation deed or a bond; but it may take other forms. The transfer of an investment into a wife’s name whether it be a house or shares, or an annuity, seems to me to be in its nature just as much a continuing provision for her future needs as is a periodical payment. The fact that it is made for no consideration other than natural affection and is in that sense a gift does not mean that it is not a `settlement’.’

Judges:

Denning J

Citations:

[1945] 1 All ER 584

Jurisdiction:

England and Wales

Cited by:

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: 07 December 2022; Ref: scu.652156

F v F (Divorce: Insolvency: Annulment of Bankruptcy Order): FD 1994

Thorpe J, having conducted a detailed analysis of the evidence, concluded ‘that the husband has, in my judgment, so obfuscated his financial position and services that it is quite impossible for this court to be sure as to what he has now in residue.’ Whilst there ‘may well be reality’ and ‘a genuine ingredient’ in aspects of the husband’s case, the approach emphasised in J v J meant that: ‘if (the husband) has conducted his affairs throughout the marriage in such a covert fashion as to relieve him of the ordinary obligations of citizenship to support the State through tax contribution, if he has conducted these proceedings in a vain endeavour to maintain that camouflage, if in consequence the obscurity of my final vision results in an order that is unfair to him it is better that than that I should be drawn into making an order that is unfair to the wife. If at the end of this case he feels that the lump sum that I order is unfair in reflection of his present retrenchment then he should remember that he has brought that consequences upon himself by the fashion in which he has chosen to arrange his affairs over the course of the last decade, coupled with the fashion in which he has chosen to conduct these proceedings.’ and: If it were left to me in a vacuum to decide what to do for this wife in this case, I would find it a difficult decision and one without any apparent signposts’. However, he was ‘content to make the order’ sought by the wife, namely for a lump sum of pounds 150,000, which had not been ‘attacked by (counsel for the husband) as being in any sense excessive’.

Judges:

Thorpe J

Citations:

[1994] 1 FLR 359

Jurisdiction:

England and Wales

Cited by:

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, Insolvency

Updated: 07 December 2022; Ref: scu.652150

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. The court awarded awarded the petitioner a total of some pounds 25 million, of which pounds 5.5 million represented the capitalised amount, calculated on a Duxbury basis, of her needs assessed at the annual figure of pounds 225,000. The petitioner was entitled to have the part of the order which was referable to ‘maintenance’ within the meaning of the Conventions expressed as such, since a Duxbury fund calculated as such constituted ‘maintenance’ for this purpose.
Munby J considered as the ‘seemingly unanswerable question’ the question of how to calculate the consequences of non-disclosure by one party in ancillary relief proceedings.

Judges:

Munby J

Citations:

[2002] 1 FLR 1053, [2002] EWHC 108 (Fam)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Al-Khatib v Masry and others CA 26-Jun-2002
Application for leave to appeal against ancillary relief order. . .
Appeal from – Al-Khatib v Masry and others CA 5-Oct-2004
The parties had been involved in protracted and bitter family disputes. After a previous appeal they had been invited to refer their disputes to mediation.
Held: At that time, mediation within the Appeal Court was managed by commercial . .
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 . .
Cited – 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: . .
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: 07 December 2022; Ref: scu.384143

A v S (Financial Relief after Overseas US Divorce): 2003

Citations:

[2003] 1 FLR 431

Jurisdiction:

England and Wales

Cited by:

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

Family, International

Updated: 07 December 2022; Ref: scu.406670

J v V (Disclosure: Offshore Corporations): FD 2003

A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He said: ‘The use of Hildebrand documents in English ancillary relief proceedings is perfectly permissible subject to certain conditions as to early revelation to the party who owns the documents. When that general point is added to the fact that, absent these documents, the picture of the husband’s finances would be even more incomplete in a number of crucial respects than it is anyway, I find [the wife’s] conduct entirely understandable, justified and above criticism. I should not have hesitated to criticise her and her lawyers if I had felt they had over-stepped the mark.’
As to costs, Coleridge J said: ‘If clients ‘duck and weave’ over months or years to avoid coming clean they cannot expect much sympathy when it comes to the question of paying the costs of the enquiry which inevitably follows. And that is so whatever the outcome eventually is and whatever offers have been made before final determination. Applicants cannot be properly and fully advised about the merits of offers by their lawyers unless the disclosure is full . . and frank; all the cards must be put on the table face up at the earliest stage if huge costs bills are to be avoided.’
Coleridge J also commented on the readiness of the courts to deal with overcomplicated financial structures: ‘these sophisticated offshore structures are very familiar nowadays to the judiciary who have to try them. They neither impress, intimidate, nor fool any one. The courts have lived with them for years.’

Judges:

Coleridge J

Citations:

[2004] 1 FLR 1042, [2003] EWHC 3110 (Fam)

Jurisdiction:

England and Wales

Citing:

Cited – Hildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .

Cited by:

Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
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 – 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, Litigation Practice

Updated: 07 December 2022; Ref: scu.377302

N v N and Another: FD 16 Dec 2005

Judges:

Coleridge J

Citations:

[2005] EWHC 2908 (Fam), [2006] 1 FLR 856

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Cited by:

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: 07 December 2022; Ref: scu.279013

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 common theme running through all the cases in which the court has been willing to pierce the veil is that the company was being used by its controller in an attempt to immunise himself from liability for some wrongdoing which existed entirely dehors the company. It is therefore necessary to identify the relevant wrongdoing – in Gilford and Jones v Lipman it was a breach of contract which, itself, had nothing to do with the company, in Gencor and Trustor it was a misappropriation of someone else’s money which again, in itself, had nothing to do with the company – before proceeding to demonstrate the wrongful misuse or involvement of the corporate structure. But in the present case there is no anterior or independent wrongdoing. All that the husband is doing, in the circumstances with which he is now faced – the wife’s claim for ancillary relief – is to take advantage, in my judgment legitimately to take advantage, of the existing corporate structure and, if one chooses to put it this way, to take advantage of the principle in Salomon.’

Judges:

Munby J

Citations:

[2008] EWHC 2380 (Fam), [2008] Fam Law 1179, [2009] 1 FLR 115

Links:

Bailii

Statutes:

Family Proceedings Rules 1991, Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Citing:

Cited – A v A FD 29-Jan-2007
Munby J referred to the robust approach which had always been adopted in the Family Division in seeing through sham arrangements designed to hide the ownership of assets of the marriage by vesting them in relatives or companies which were in reality . .
Cited – A v A (Maintenance Pending Suit: Provision for Legal Fees) FD 15-Nov-2000
An application for maintenance pending suit could properly be made, to include payment on account of the legal costs of pursuing the action. Such legal expense were of a recurring, and income type nature. Maintenance was not confined to the day to . .
Cited – Trustor Ab v Smallbone and Another (No 2) ChD 30-Mar-2001
Directors of one company fraudulently diverted substantial sums to another company owned by one of them. The defrauded company sought return of the funds, from the company and from the second director on the basis that the corporate veil should be . .
Cited – Re Shephard, Shephard v Cartwright HL 1-Dec-1954
The House considered the equitable doctrine of advancement, and the admission of evidence which might go to rebut it.
Held: The presumption is one which ‘should not . . give way to slight circumstances’.
Viscunt Simonds approved, from . .
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Cited – F v F (Divorce: Insolvency: Annulment of Bankruptcy Order) FD 1994
Thorpe J, having conducted a detailed analysis of the evidence, concluded ‘that the husband has, in my judgment, so obfuscated his financial position and services that it is quite impossible for this court to be sure as to what he has now in . .
Cited – Thomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
Cited – Re W (ex-parte orders) FD 2000
The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be . .
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 – J v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
Cited – Lee v Lee’s Air Farming Limited PC 11-Oct-1960
Mr Lee had formed a company, Lee’s Air Farming Limited and held nearly all its shares. He was the managing director, but by profession a pilot. The company was formed to conduct an aerial top-dressing business. He appointed himself the chief pilot . .
Cited – Williams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of . .
Cited – Whig v Whig FD 23-Jul-2007
The court heard ancillary relief and bankruptcy proceedings together.
Held: Munby J refused to annul the husband’s bankruptcy. . .
Cited – Macaura v Northern Assurance Company Limited HL 1925
Macaura owned the large majority of shares in a limited company, trading in timber. The company also owed him substantial sums. He kept on the insurance of timber and other assets within the business but in his own name. When he came to claim, his . .
Cited – Re Shephard, Shephard v Cartwright HL 1-Dec-1954
The House considered the equitable doctrine of advancement, and the admission of evidence which might go to rebut it.
Held: The presumption is one which ‘should not . . give way to slight circumstances’.
Viscunt Simonds approved, from . .
Cited – Tribe v Tribe CA 26-Jul-1995
Illegal intent alone rebutted presumption
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations, and, to . .
Cited – Hussey v Palmer CA 22-Jun-1972
A mother had provided a sum to her daughter and son in aw when she moved in with them. The money was used to build an extension. She now appealed against a finding that she did not have an equitable interest in the house.
Held: lord Denning MR . .
Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Gilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
Cited – Re Bugle Press Ltd ChD 1961
Two shareholders held more than 90% of the issued shares of the company. To get rid of the holder of the remaining shares, they incorporated another company for the purpose of acquiring all the shares of the company. The acquiring company offered to . .
Cited – Jones v Lipman and Another ChD 1962
The defendant had contracted to sell his land. He changed his mind, and formed a company of which he was owner and director, transferred the land to the company, and refused to complete. The plaintiff sought relief.
Held: Specific performance . .
Cited – Dadourian Group International Inc and others v Simms and others ChD 24-Nov-2006
The Claimants sought, principally, damages for fraudulent misrepresentation and conspiracy against the first to fourth Defendants and damages for breach of contract against the third and fourth Defendants.
Ownership and control of a company are . .
Cited – Mubarak v Mubarak FD 23-Oct-2000
The court had made an order for payment by H to W on the divorce, and was now asked whether W could take jewelry held by H’s company in part satisfaction of the capital sums due. . .
Cited – Gencor ACP Ltd v Dalby ChD 2000
The plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. These included a claim for an account of a secret profit which Mr Dalby was said to have been procured to be paid by a third party, . .
Cited – Yukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) QBD 23-Sep-1997
Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce . .
Cited – Wallersteiner v Moir CA 1974
The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
Cited – Green v Green FD 1993
In an ancillary relief application, Connell J awarded to the wife assets vested in a limited company whose entire share capital was owned by the husband. . .
Cited – Adams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
Cited – Gencor ACP Ltd v Dalby ChD 2000
The plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. These included a claim for an account of a secret profit which Mr Dalby was said to have been procured to be paid by a third party, . .
Cited – N v N and Another FD 16-Dec-2005
. .
Cited – Bosworthick v Bosworthick CA 1927
An annuity secured by a bond was found to be a settlement. . .
Cited – Smith v Smith 1945
Denning J said: where a husband makes a continuing provision for the future needs of his wife in her character as a wife, which is still continuing when the marriage is dissolved, the provision is a `settlement’ which can be brought before the court . .
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 – Smith v Smith CA 1970
The husband had deserted the wife and gone abroad to work; the sole asset was the matrimonial home which was in joint names, and which constituted a post-nuptial settlement. The wife applied for variation of the settlement, whereby, on obtaining the . .
Cited – 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 . .
Cited – C v C (Ancillary Relief: Nuptial Settlement) FD 2-Apr-2004
Application for ancillary relief to vary post-nuptial settlement. . .
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 – Dormer v Ward CA 1901
One of the assets included in the marriage settlement was a jointure rent-charge charged on certain specified hereditaments. The CA considered whether what was brought into the settlement so as to be amenable to the court’s statutory jurisdiction . .
Cited – Blood v Blood 1902
Gorell Barnes J, considered the ambit of section 5 of the 1859 Act, and said: ‘Those words are extremely wide, and I am anxious that they should not, by any construction the Court may put upon them, be narrowed in any way. To narrow them would be . .
Cited – Prescott v Fellowes CA 1958
The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a . .
Cited – Prinsep v Prinsep 1929
Hill J considered what is meant by a nuptial settlement: ‘Is it upon the husband in the character of husband or in the wife in the character of wife, or upon both in the character of husband and wife? If it is, it is a settlement on the parties . .
Cited – In Re Hunter and Hewlett’s Contract 1907
A moiety of a freehold was settled during the life of the trustees and the survivor of them for the benefit of the two daughters of the settlor, their husbands and issue. The reversion in fee expectant remained with the settlor. It was common ground . .
Cited – Hargreaves v Hargreaves 1926
The marriage settlement included an annual sum of pounds 500 appointed by the settler. The question was whether there was any property settled other than the pounds 500.
Held: There was not: ‘to my mind, the property settled is not the whole . .
Cited – Hartopp v Hartopp and Akhurst 1899
Gorell Barnes J said: ‘Now the guiding principle which will be found running through the cases is, in my opinion, this: Where the breaking up of the family life has been caused by the fault of the respondent, the Court, exercising its powers under . .
Cited – Whitton v Whitton 1901
Sir Francis Jeune P said: ‘But one has in these cases to consider what is really for the benefit of the children, because I think the authorities shew that nothing must be done that on the whole would be for the disadvantage of the children. This . .
Cited – Cartwright v Cartwright 1983
Sheldon J said: ‘when considering the financial background of the parties, the standard of life that they and the children have been accustomed to, and that the children will undoubtedly continue to enjoy while living with [their mother], I am of . .
Cited – Purnell v Purnell 1961
Cairns J considered a request for the variation of a post-nuptial trust and said: ‘Now it is well established by authority that the variation may be such as to confer a benefit on a stranger to the settlement provided it also confers a benefit on . .
Cited – Garforth-Bles v Garforth-Bles 1951
Pearce J said: ‘It is, in my view, to the child’s interest in another respect to allow the husband to remove a part of his fund from the settlement. He brought into the settlement reversions that were substantially all that he possessed; he now has, . .
Cited – Egerton v Egerton 1949
The court considered its power to vary a post-nuptial settlement. Barnard J said: ‘No one could quarrel with this statement as a guiding principle, but at the same time I think it would be wrong to interpret it as meaning that it is a principle . .
Cited – Colclough v Colclough and Fisher 1933
Any variation of a post-nuptial settlement should be addressed so as to place the parties in the same position as if the marriage had not come to an end. . .

Cited by:

See Also – Hashem v Shayif and Another FD 17-Apr-2009
. .
See Also – Hashem v Shayif and Others CA 22-Jul-2009
. .
Cited – Law Society of England and Wales v Isaac and Isaac International Holdings Ltd and Others ChD 7-Jul-2010
. .
Cited – Lindsay v O’Loughnane QBD 18-Mar-2010
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Family, Company, Equity

Updated: 07 December 2022; Ref: scu.278557

Smith v Smith: FD 1976

The husband sought to re-open settled ancillary relief arrangements after his former wife remarried.
Held: He had to take the chance of her remarriage. Latey J gave guidance on this question and said: ‘If the wife had remarried or was going to remarry her financial position on remarriage had to be considered. If it was guesswork whether she would or would not remarry, prospective remarriage should be ignored.’

Judges:

Latey J

Citations:

[1976] Fam 18

Jurisdiction:

England and Wales

Cited by:

Followed – H v H (Family Provision: Remarriage) CA 1975
The court considered the effect of a remarriage on a financial provision order made on divorce. Sir George Baker P said: ‘The prospect, chance or hope of remarriage is, I think, irrelevant, but the fact of remarriage, which does not admit of . .
Cited – Dixon v Marchant CA 24-Jan-2008
The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 December 2022; Ref: scu.263871

Whig v Whig: FD 23 Jul 2007

The court heard ancillary relief and bankruptcy proceedings together.
Held: Munby J refused to annul the husband’s bankruptcy.

Judges:

Munby J

Citations:

[2007] EWHC 1856 (Fam), [2008] 1 FLR 453

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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, Insolvency

Updated: 07 December 2022; Ref: scu.260013

A v A: FD 29 Jan 2007

Munby J referred to the robust approach which had always been adopted in the Family Division in seeing through sham arrangements designed to hide the ownership of assets of the marriage by vesting them in relatives or companies which were in reality holding them as their nominees. He warned against departing from fundamental legal principle: ‘In this sense, and to this limited extent, the typical case in the Family Division may differ from the typical case in (say) the Chancery Division. But what it is important to appreciate (and too often, I fear, is not appreciated at least in this division) is that the relevant legal principles which have to be applied are precisely the same in this division as in the other two divisions. There is not one law of ‘sham’ in the Chancery Division and another law of ‘sham’ in the Family Division. There is only one law of ‘sham’, to be applied equally in all three Divisions of the High Court, just as there is but one set of principles, again equally applicable in all three divisions, determining whether or not it is appropriate to ‘pierce the corporate veil”.

Judges:

Munby J

Citations:

[2007] EWHC 99 (Fam), [2007] 2 FLR 467, [2009] WTLR 1, [2007] Fam Law 791

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 December 2022; Ref: scu.253469

Regina v Birmingham Juvenile Court Ex Parte S: 1984

The court considered what was meant by the term ‘household’: ‘at the heart of the concept it is the persons who comprise the household . . and not the place where the household is located as a matter of residence.’

Judges:

Sir John Arnold P

Citations:

[1984] 11 Fam 93

Jurisdiction:

England and Wales

Citing:

Cited – Simmons v Pizzey HL 1979
As to houses in multiple occupation, ‘both the expression ‘household’ and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive’. After reference to the the . .

Cited by:

Cited – Richards v The Legal Services Commission Admn 19-Jul-2006
The claimant challenged the inclusion in her gross income for calculation of her eligibility to legal aid of maintenance payments received for her children who were both at University. She said that since she had responsibility for their . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 December 2022; Ref: scu.243375

Blunt v Blunt: 1943

Viscount Simon considered the variety of options available to a court faced with an allegation of adultery: ‘I would add a fifth (consideration) of a more general character, which must, indeed, be regarded as of primary importance, namely, the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.’

Judges:

Viscount Simon LC

Citations:

[1943] AC 517

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 07 December 2022; Ref: scu.235298

Leadbeater v Leadbeater: 1985

The court considered the case of a couple, in their mid-forties. Both had previously been married and both their former spouses married each other. They enjoyed a high standard of living. W brought with her two (2) adopted children from the former marriage. W suffered from a drinking problem. When H brought a teenaged friend of the adopted daughter to live with them, W reacted by going to Cyprus and committing adultery with different persons. H offered to take her back on the condition that the friend of her daughter be permitted to stay in the house.
Held: The deplorable conduct of each party cancelled the effect of the other.
In calculating the matrimonial assets, Balcombe J added back the paid costs of each party into the Schedule of assets, since the assessment of an applicant’s needs without both adding back payments made and disregarding liability for unpaid costs incurred and to be incurred, would effectively anticipate the costs order that would eventually be made.

Judges:

Balcombe J

Citations:

[1985] FLR 789

Jurisdiction:

England and Wales

Cited by:

Cited – Wells v Wells CA 20-Mar-2002
The court considered an application for ancillary relief. The assets were substantial, but before the judge was to deliver his judgment he accepted evidence from the husand that the sale of his business had fallen through and H’s income . .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 07 December 2022; Ref: scu.235283

Gardiner (otherwise Phillips) v Gardiner: 1920

A petition for nullity of a marriage was based upon an allegation of incapacity: ‘Every case of this kind must be decided on its own facts, and an appeal for permanent maintenance after a decree of nullity is not an appeal to a set of fixed principles, but one to the sense of propriety and moral justice of the court.’

Judges:

Sir Henry Duke P

Citations:

(1920) 36 TLR 294

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 07 December 2022; Ref: scu.235266

May v May: 1943

An alien may acquire a domicile of choice in this country even though he might be required to leave at any time by executive action with no right of appeal.

Citations:

[1943] 2 All ER 146

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

Updated: 07 December 2022; Ref: scu.228188

Nicholas v Nicholas: CA 1984

The Court upheld an appeal against an order for the husband to procure the transfer to the wife of a property belonging to a company in which he held a 71% shareholding, the other 29% being held by his business associates. However, both members of the court suggested, obiter, that the result might have been different had it not been for the position of the minority shareholders.
Cumming-Bruce LJ thought that, in that situation: ‘the court does and will pierce the corporate veil and make an order which has the same effect as an order that would be made if the property was vested in the majority shareholder.’
Dillon LJ said: ‘if the company was a one-man company and the alter ego of the husband, I would have no difficulty in holding that there was power to order a transfer of the property.’

Judges:

Cumming-Bruce and Dillon LJJ

Citations:

[1984] FLR 285

Jurisdiction:

England and Wales

Cited by:

Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Cited – Thomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
Cited – Re W (ex-parte orders) FD 2000
The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be . .
Lists of cited by and citing cases may be incomplete.

Family, Company

Updated: 07 December 2022; Ref: scu.223621

C v C (Ancillary Relief: Nuptial Settlement): FD 2 Apr 2004

Application for ancillary relief to vary post-nuptial settlement.

Citations:

[2004] EWHC 742 (Fam), [2004] Fam 141

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Cited by:

Cited – Radmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
Leave – 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 – 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: 07 December 2022; Ref: scu.221039

Smith v Smith: FD 2000

Ancillary relief

Judges:

Thorpe J

Citations:

[2000] 3 FCR 374

Jurisdiction:

England and Wales

Cited by:

Cited – A v B (Ancillary relief: Separation agreement) FD 17-Jan-2005
The husband appealed against an ancillary relief order, saying that the judge had applied the terms of a separation agreement without acknowledging that that agreement had been entered into without full disclosure having been made. Had the judge . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 December 2022; Ref: scu.224379

Green v Green: FD 1993

In an ancillary relief application, Connell J awarded to the wife assets vested in a limited company whose entire share capital was owned by the husband.

Judges:

Connell J

Citations:

[1993] 1 FLR 326

Statutes:

Matrimonial Causes Act 1973 37

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Cited – Thomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
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, Company

Updated: 07 December 2022; Ref: scu.223624

Prescott v Fellowes: CA 1958

The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a settlement which are familiar to conveyancing practitioners. It has, however, long since been established by decisions which are binding on this court that a disposition of property may a ‘settlement’ for the purposes of section 25 of the Matrimonial Causes Act 1950, notwithstanding that it would not be regarded as a settlement of property for any other purpose. The liberality with which this legislation has been construed is sufficiently exemplified by Bosworthick v. Bosworthick. In that case a wife executed, a few years after her marriage, a bond which secured to her husband an annuity for his life. The marriage was dissolved in 1925 and the wife applied to the court for an order extinguishing her liability under the bond. This court, affirming the decision of Lord Merrivale P., held that the bond was a post-nuptial settlement for the purposes of section 5 of the Matrimonial Causes Act, 1859, and section 192 of the Supreme Court of Judicature (Consolidation) Act, 1925; and the wife’s application succeeded. In the course of his judgment Romer J., who was sitting as a member of this court, said that the authorities established ‘that where a ‘husband has made a provision for his wife, or a wife for her husband, in the nature of periodical payments, that amounts to a settlement within the meaning of the sections. That may appear to be a very liberal construction of the sections, but I think that it is no more liberal a construction than should be given to them having regard to the obvious purposes for which they were enacted by the legislature.’

Judges:

Romer LJ

Citations:

[1958] P 260

Statutes:

Matriimonial Cause Act 1950

Jurisdiction:

England and Wales

Cited by:

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 – 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, Trusts

Updated: 07 December 2022; Ref: scu.199724

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 the trust deed could not prevent application of the Act. The judge had been correct to hold that it remained a post-nuptial settlement despite the removal of either party as beneficiary. The courts of Jersey were prepared to heed such orders. The appeal was refused.

Judges:

Lord Justice Thorpe Lord Justice May Lady Justice Arden

Citations:

[2004] EWCA Civ 1030, Times 07-Sep-2004, [2005] Fam 250

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24, Recognition of Trusts Act 1987

Jurisdiction:

England and Wales

Citing:

Appeal from – Charalambous v Charalambous FD 5-Mar-2004
The family had been wealthy. Assets were placed into a trust. The businesses fell into difficulty, and the parties divorced. The wife requested the court to set aside the trust.
Held: The trust was to be varied as a post-nuptial settlement. . .
Cited – Nunneley v Nunneley 1890
The court considerd the power to vary a trust: ‘The language of the Act is exceedingly wide. I am clearly of opinion that the power thereby conferred extends to a settlement though made in another country and according to the law of that country.’ . .
Cited – Jacques de Cavel v Louise de Cavel ECJ 27-Mar-1979
The term ‘rights in property arising out of a matrimonial relationship’ within the meaning of the second paragraph of article 1 of the Convention, includes not only property arrangements specifically and exclusively envisaged by certain national . .
Cited – 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 . .
Cited – Compton v Compton FD 1960
The court considered whether trusts were to be deemed to be post nuptial settlements.
Marshall J said: ‘The first point taken by Mr. Beyfus on the wife’s behalf is fundamental. He has submitted that the four settlements in question are not . .
Cited – Forsyth v Forsyth 1891
Jeune J said: ‘Nunneley v. Nunneley seems to me to go the whole length of deciding that whatever be the law applicable to the settlements the effect of S.5 of the 22 and 23 Vict. c. 61, is to give this court power to vary the settlements in its . .
Cited – Prescott v Fellowes CA 1958
The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a . .
Leave – C v C (Ancillary Relief: Nuptial Settlement) FD 2-Apr-2004
Application for ancillary relief to vary post-nuptial settlement. . .

Cited by:

Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
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, Trusts

Updated: 07 December 2022; Ref: scu.199801

In re Gardner: 1920

A common intention of husband and wife and taking of benefit are sufficient to establish mutual wills.

Citations:

[1920] 2 Ch 523

Jurisdiction:

England and Wales

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 07 December 2022; Ref: scu.183795

Burgess v Burgess: CA 11 Nov 1996

Citations:

[1996] 2 FLR 34, [1996] EWCA Civ 920

Jurisdiction:

England and Wales

Cited by:

Cited – Brawley v Marczynski and Another CA 21-Oct-2002
The defendants appealed an award of costs on an indemnity basis against them in the favour of a legally aided claimant.
Held: Indemnity costs were often intended to indicate disapproval of a party’s behaviour in an action, and were awarded in . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 December 2022; Ref: scu.140787

Turczak v Turczak: 1970

Following a Polish divorce, there was no power to order maintenance under the 1965 Act because the parties were no longer husband and wife.

Citations:

[1970] P 198

Statutes:

Matrimonial Causes Act 1965

Jurisdiction:

England and Wales

Cited by:

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

Family, International

Updated: 06 December 2022; Ref: scu.406667

Equity Solicitors v Javid: CA 20 Mar 2009

Appeal from wasted costs order.
Held: ‘Mr Sattar was not in any way negligent in this matter and did not in any way fall below the standards of a competent solicitor. Rather, he acted as a good Samaritan and did all he could to help this vulnerable lady whilst making perfectly plain to her, to Cottams and to the court that he could not do more. It was not justifiable to make any order for wasted costs against his firm and, indeed, he should be thanked, and I now personally thank him, for his generous and public-spirited services. I, for my part, would allow this appeal and set aside that sentence of the order made on 16 September 2008 which orders Equity Solicitors to pay wasted costs in the sum of pounds 981.13.’

Judges:

Wilson L, Holman J

Citations:

[2009] EWCA Civ 535, [2009] 2 FLR 1011, [2009] Fam Law 806, [2010] 1 FCR 60

Links:

Bailii

Jurisdiction:

England and Wales

Family, Costs

Updated: 06 December 2022; Ref: scu.347111

Practice Direction (Family Division: Financial Statement): 1984

The decision of the Court of Appeal in Jenkins v. Livesey (formerly Jenkins) … is a reminder that in all cases where application is made for a financial provision or property adjustment order the court is required to have before it an agreed statement of the general nature of the means of each party signed by the parties or their solicitors. If affidavits of means have been filed it will be sufficient if the statement is in the form of a certificate that there has been no change of substance since the date of the affidavit or if there has, what changes there have been. If no such evidence has been filed the statement should include a summary of the amount or value of the capital and income resources of each of the spouses . . . and any special features which require to be considered under section 25 of the Matrimonial Causes Act 1973.’

Citations:

[1984] 1 WLR 674

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 06 December 2022; Ref: scu.259837

Talbot v Talbot: 1967

A marriage had been celebrated, but in fact both parties were women.
Held: The marriage was annulled: ‘there was plainly no marriage and pronounced a decree nisi (of nullity) saying that the decree could be made absolute forthwith.’

Judges:

Ormrod J

Citations:

(1967) 111 Sol J 213

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 06 December 2022; Ref: scu.235268

Bell v Kennedy: 1868

A domicile of choice in a country is been acquired immediately upon the person’s arrival in that country.
Lord Cairns, having held that it was unnecessary for him to examine the various definitions that have been given of the term ‘domicile’, held that the question to be considered was in substance whether the appellant: ‘had determined to make, and had made, Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country?’

Judges:

Lord Westbury, Lord Cairns

Citations:

(1868) LR 1 Sc and Div 307

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 . .
Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Lists of cited by and citing cases may be incomplete.

Administrative, Family

Updated: 06 December 2022; Ref: scu.228183

Practice Direction (Family Proceedings: Court Bundles): 10 Mar 2000

There should at be lodged with the court a summary of the background to the hearing; a statement of the issue or issues to be determined; a summary of the order or directions sought by each party; a chronology; and skeleton arguments.

Citations:

Times 22-Mar-2000, [2000] 1 WLR 737, [2000] 1 FLR 536

Jurisdiction:

England and Wales

Cited by:

Cited – In R H (A Minor) (Court Bundles: Disallowance of Fees) CA 6-Jun-2000
The court’s practice direction on the provision of bundles and the specification of what the bundles should contain in Family Division cases, a warning to practitioners that they would have little by way of answer to a wasted costs order. The . .
Cited – CF v Secretary of State for the Home Department FD 30-Jan-2004
The court considered the choice or procedures arising in relation to a baby ward of court living with its mother in prison. The sentence to be served would take the child beyond the maximum age provided for in mother and baby units. . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – 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: 06 December 2022; Ref: scu.183194

PC and Another v City of York Council: CA 1 May 2013

It had been decided that PC, a 43 year old woman, had capacity to marry, but the LA now argued that she did not have the capacity to decide to live with her partner, a man who had old convictions for serious sexual assault.
Held: Decisions as to the existence of capacity was always specific to the situation and the particular factual matrix and the context.

Judges:

Richards, McFarlane, Lewison LJJ

Citations:

[2013] EWCA Civ 478, (2013) 16 CCL Rep 298, [2014] 2 WLR 1, [2013] WLR(D) 176, [2013] Med LR 213, [2014] 1 FAM 10

Links:

Bailii, WLRD

Statutes:

Mental Capacity Act 2005 4

Jurisdiction:

England and Wales

Citing:

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 – Local Authority X v MM and Another; re MM (An Adult) FD 21-Aug-2007
The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does . .
Lists of cited by and citing cases may be incomplete.

Health, Family

Updated: 05 December 2022; Ref: scu.491839

Grubb v Grubb: CA 25 Sep 2009

Reasons for refusal of permission to appeal against an occupation order.
Refusal of leave to appeal from an occupation order

Judges:

Wilson J

Citations:

[2009] EWCA Civ 976, [2010] Fam Law 1277, [2011] 1 FLR 687

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 05 December 2022; Ref: scu.375171

Re Inns, Inns v Wallace: 1947

Judges:

Wynn-Parry J

Citations:

[1947] 2 All ER 308

Jurisdiction:

England and Wales

Cited by:

Cited – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 05 December 2022; Ref: scu.196905

Sanctuary Housing Association v Campbell: CA 18 Mar 1999

The claimant had granted a secure weekly tenancy of a maisonette to Mrs Campbell, which she occupied with her husband and children. Mrs Campbell then left the maisonette, leaving the husband in occupation. The husband made a proposal to the claimant whose substance was that he should be given the tenancy of the maisonette, but the claimant refused, saying that once Mrs Campbell was re-housed it would require vacant possession. Mrs Campbell was re-housed, although not by the claimant, and she then wrote to the claimant saying that she was giving up the maisonette and asking what she should do with the keys. The claimant’s response was that she must empty the maisonette of her possessions before returning the keys and that until such times as the keys were returned she would be liable for the rent. Her response was that she could not do this because her husband remained in possession and had changed the locks. She enclosed her own keys with her letter. She asked to be given the opportunity to remove her own possessions from the maisonette once her husband had vacated it, following which the claimant wrote to the husband asking him to leave. He did not, and so two months later the claimant sued him for possession.
Held: A wife who is a sole tenant has the full right to determine a tenancy even though her husband occupied the house at all material times, and even though this operated to deny him rights he would have against her under the Act. There had been nothing equivocal about the wife’s or the claimant’s acts and there had been an implied surrender of the wife’s tenancy to the claimant. Lord Justice Scott: ‘If both tenant and landlord are unequivocally treating a tenancy as at an end the law has no business to insist on its continuance.’

Judges:

Lord Justice Thorpe

Citations:

Times 01-Apr-1999, [1999] EWCA Civ 1030, [1999] 1 WLR 1279, [1999] L and TR 425, (2000) 32 HLR 100

Links:

Bailii

Statutes:

Matrimonial Homes Act 1983

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Brent v Sharma and Vyas CA 1992
A tenancy of a flat was granted to Miss Vyas. She occupied it with Mr Sharma. They later married. She moved out and was given the tenancy of a council house elsewhere. She then wrote to Brent, the landlords, to say she was no longer sharing with Mr . .

Cited by:

Cited – Ealing Family Housing Association Ltd v McKenzie CA 10-Oct-2003
The defendant and his wife separated when she left the flat they shared. She accepted a new tenancy of other premises. The landlord claimed possession of the flat, saying that the tenancy had ended.
Held: There was no express surrender within . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Family

Updated: 05 December 2022; Ref: scu.145945

Tee v Tee, John Arthur Hillman Co: CA 22 Mar 1999

The wife and her second husband occupied a property in the joint names of herself and of her first husband, who, following their divorce, had applied under the Act of 1973 for a lump sum order reflective of his equal beneficial interest in it to be made against her. Following her remarriage the wife countered with an application under TOLATA for the interest of her first husband in the property to be transferred to herself against a small payment to be made by her to him reflective of the value of what she contended to be only his minor beneficial interest in it. Following a direction that her application under TOLATA be considered at a preliminary stage, a district judge devoted eight days to the enquiry under TOLATA and A further day with the husband’s application under the Act of 1973, concluding that andpound;230,000 should be paid to the first husband in respect of his interest in the property, whether by the wife or, in default, out of the proceeds of its sale.
Held: Parties to a marriage seeking a sale of jointly owned property should proceed under family law not the general civil powers. Where the parties had divorced, and one party had remarried, the procedure remained the same, particularly when, as in this case, the other party had already made and application under the Matrimonial Causes Act. The court took the opportunity to deplore the expensive protracted and bitter nature of the proceedings.

Judges:

The Vice-Chancellor Lord Justice Thorpe Lord Justice Judge

Citations:

Gazette 27-Oct-1999, [1999] EWCA Civ 1056, [1999] 2 FLR 61

Statutes:

Matrimonial Causes Act 1973 24 24A, Trusts of Land and Appointment of Trustees Act 1996 14, Married Women’s Property Act 1882 18

Jurisdiction:

England and Wales

Citing:

See Also – Tee v Tee CA 1974
. .

Cited by:

See Also – Tee-Hillman v Tee and others CA 24-Sep-2002
. .
Cited – Miller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 05 December 2022; Ref: scu.145971

Davies v Davies: CA 4 Mar 1999

The marriage was unhappy. The wife consulted briefly but did not instruct a solicitor, Mr Tooth. Some 7 years later as divorce proceedings were considered, the husband did instruct Mr Tooth. She sought to prevent him acting, but then wanted to withdraw her summons. The husband would only agree if she paid the costs. She refused.
Held: The summons was quite properly issued. There was a real matter to be considered. The point of view of the petitioner wife was put forward moderately it seems to me. It was met with a very strong rebuff which indicated that, come what may, the respondent husband was going to seed the dismissal of the matter with costs. There remained a real and not just fanciful risk of conflict. The husband’s appeal against the costs order failed.

Citations:

[1999] EWCA Civ 890

Jurisdiction:

England and Wales

Citing:

Cited – In Re A Firm of Solicitors ChD 9-May-1995
A solicitor moving from a firm acting on one side of a dispute to the firm on the other side must be able to show that no conflict of interest would arise. The court should intervene unless it is satisfied that there is no risk of disclosure. It . .
Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – RTZ Pension Property Trust Ltd v ARC Property Developments Ltd and Asfa Limited CA 26-Nov-1998
Where a plaintiff discontinued his action, but still sought costs from the defendant, he had to show some misconduct by the defendant, such as encouraging the action by concealment of a defence. A mere late amendment causing no loss was not . .
Lists of cited by and citing cases may be incomplete.

Family, Legal Professions

Updated: 05 December 2022; Ref: scu.145805