Brock v Wollams: CA 1949

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

Judges:

Bucknill LJ, Cohen LJ, Denning LJ

Citations:

[1949] 2 KB 388

Statutes:

Adoption of Children Act 1926

Jurisdiction:

England and Wales

Citing:

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

Cited by:

CitedFitzpatrick 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 . .
ApprovedCarega Properties SA v Sharratt CA 1979
The Court referred to the ‘Cohen’ Question: ‘. . it is for this court to decide, where such an issue arises, whether, assuming all the facts found by the judge to be correct, the question may, as a matter of law, within the permissible limits of the . .
CitedSheffield City Council v Wall (Personal Representatives of) and Others CA 30-Jul-2010
The claimant had been a foster son and was now the administrator of the estate of the deceased tenant. He sought to occupy the property as a successor under the 1985 Act. He said that as a former foster child, he had become a member of the . .
Lists of cited by and citing cases may be incomplete.

Housing, Family

Updated: 25 May 2022; Ref: scu.215903

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

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

Citations:

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

Links:

Bailii

Statutes:

Domicile and Matrimonial Proceedings Act 1973 5(2)

Jurisdiction:

England and Wales

Cited by:

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

Family, Immigration

Updated: 25 May 2022; Ref: scu.136125

EDG v RR: FD 20 Oct 2015

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

Judges:

Holman J

Citations:

[2015] EWHC 3097 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 25 May 2022; Ref: scu.554080

S v S: FD 29 Apr 2013

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

Judges:

Sir Hugh Bennett

Citations:

[2013] EWHC 991 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedBokor-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. . .
CitedGordon (formerly Stefanou) v Stefanou CA 2010
H and W first separated in 1996, with W petitioning for divorce in 2003 for 5-years’ separation. In 1999 H began a company which proved very successful. An ancillary relief order was made in 2007 but W now sought to set that order aside for a . .
CitedJenkins 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 . .
CitedJudge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
CitedWalkden v Walkden CA 25-Jun-2009
W sought to plead as a Barder event the fact that certain shares had subsequently been sold by H at a substantially higher value than had been anticipated on the making of the financial relief order on the parties’ divorce. Alternatively, she . .
CitedC v C FD 2012
The court considered the application of the test of materiality when a party gave disclosure in family proceedings. . .

Cited by:

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

Family

Updated: 23 May 2022; Ref: scu.509149

NG v SG: FD 9 Dec 2011

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

Judges:

Mostyn J

Citations:

[2011] EWHC 3270 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedJ-P C v J-A F FD 1955
Sachs J considered the consequences of the revelation of a failure by a party to ancillary relief proceedings to meet his disclosure obligations: ‘In cases of this kind, where the duty of disclosure comes to lie on a husband; where a husband has – . .
CitedLykiardopulo 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 . .
CitedAl-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. . .
CitedJenkins 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 . .
CitedFZ v SZ and Others (ancillary relief: conduct: valuations) FD 5-Jul-2010
The court heard an application for ancillary relief and variation of a post nuptial settlement. Each party made allegations of misconduct against the other, and the litigation had been bitter and protracted. W had obtained copies of H’s private . .
CitedWhite v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
CitedPearce 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 . .
CitedSherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
CitedSherrington and Another v Sherrington CA 29-Dec-2006
The deceased had after remarriage made a will which excluded from benefit entirely his first wife and children by her. Claims under the 1975 Act were put to one side while the court decided on the validity of the will, but then dismissed. The court . .
CitedIn re AR (A Child: Relocation) FD 10-Jun-2010
Both parents had parental responsibility. The French mother wished to return to live in France and to take the five year old child with her, applying to court for the appropriate order.
Held: The court pointed to the real difficulties always . .
CitedAA v NA (Appeal: Fact-Finding) FD 10-Jun-2010
Mostyn J discussed the situations where an appellate court might set aside factual findings by a first instance judge: ‘In my opinion an appellate court would only be able to say that a fact-finder has plainly got the wrong answer if:
(i) His . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 23 May 2022; Ref: scu.449879

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

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

Judges:

Lord Justice Schiemann, Lord Justice Judge and Mr Justice Wall

Citations:

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

Statutes:

Matrimonial Causes Act 1973 24, Drug Trafficking Act 1994 29

Jurisdiction:

England and Wales

Citing:

AffirmedAhmad v Ahmad CA 21-Jul-1998
. .

Cited by:

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

Family, Customs and Excise

Updated: 22 May 2022; Ref: scu.174392

Ahmed and Another v Mustafa: CA 17 Mar 2014

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

Judges:

Lord Justice McFarlane

Citations:

[2014] EWCA Civ 277

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 20 May 2022; Ref: scu.522500

Wallis v Wallis: HL 5 Aug 1993

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

Judges:

Lord Keith of Kinkel

Citations:

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

Links:

Bailii

Statutes:

Family Law (Scotland) Act 1985 8 9 10

Jurisdiction:

England and Wales

Citing:

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

Cited by:

CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Lists of cited by and citing cases may be incomplete.

Scotland, Family

Updated: 20 May 2022; Ref: scu.90263

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

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

Citations:

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

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 23

Jurisdiction:

England and Wales

Cited by:

CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 20 May 2022; Ref: scu.89463

Re Baggaley: FD 22 May 2015

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

Judges:

Sir James Munby P FD

Citations:

[2015] EWHC 1496 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Legal Professions

Updated: 20 May 2022; Ref: scu.547087

Holmes v Holmes: 1990

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

Judges:

Cohen J

Citations:

(1990) FLC 92-181

Jurisdiction:

England and Wales

Cited by:

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

Family, Commonwealth

Updated: 20 May 2022; Ref: scu.445481

Von Lorang v Administrator of Austrian Property: 1927

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

Judges:

Viscount Haldane

Citations:

[1927] AC 641

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 20 May 2022; Ref: scu.270009

Maclurcan v Maclurcan: CA 1897

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

Judges:

Lindley LJ

Citations:

(1897) 77 LT 474

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 19 May 2022; Ref: scu.183329

Sudershan Kumar Rampal v Surendra Rampal: CA 19 Jul 2001

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

Judges:

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

Citations:

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

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

CitedJ 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 . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
BindingWhiston v Whiston CA 8-May-1995
A bigamist is unable to claim ancillary relief in the second marriage; would be against public policy. Since bigamy was a serious crime which undermined fundamental notions of monogamous marriage, the Court would not as a matter of public policy . .
CitedRegina v Secretary of State for the Home Department Ex Parte Puttick CA 1981
The applicant, then Astrid Proll, fled bail in Germany when awaiting trial on terrorist charges, entered England and under a false name, and married Mr Puttick. She resisted extradition saying that under the 1948 Act she was now a British National. . .
CitedRegina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
CitedRe Royse (Deceased) CA 1985
The wife sought to claim under the 1975 Act despite having been convicted of her husband’s manslaughter from diminished responsibility. She was the sole beneficiary under his will but was precluded by her conviction from taking any benefit under the . .
CitedRe H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.85661

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

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

Citations:

Times 04-May-1999

Statutes:

Civil Procedure Rules Rule 2.4

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.84970

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

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

Citations:

Times 09-Jul-1999

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.84982

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

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

Citations:

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

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Insolvency, Family, Legal Aid

Updated: 19 May 2022; Ref: scu.83039

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

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

Citations:

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

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Undue Influence, Family, Banking, Land

Updated: 19 May 2022; Ref: scu.80561

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

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

Citations:

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

Statutes:

Child Support Act 1991 8(5)

Jurisdiction:

England and Wales

Children, Family, Child Support

Updated: 19 May 2022; Ref: scu.80101

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

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

Citations:

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

Cited by:

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

Family, Jurisdiction

Updated: 19 May 2022; Ref: scu.79765

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

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

Citations:

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

Statutes:

Family Law Act 1986 46

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 19 May 2022; Ref: scu.79757

D v D (Production Appointment): FD 29 Nov 1995

An accountant’s professional privilege was overborne by the court, and a wider disclosure was approved. The court set a wide boundary around the scope of the documents which he was ordering the wife’s accountant to produce: ‘If the boundary is set narrow, there is the risk that information as to the nature and extent of the [wife’s] financial circumstances may be lost to the detriment of the husband and to the obstruction of the court in its duty to carry out the s.25 exercise as between the husband and the wife.’

Judges:

Thorpe J

Citations:

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

Statutes:

Matrimonial Causes Act 1973 825

Cited by:

CitedCharman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.79761

C v C and Another: FD 30 Sep 2015

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

Judges:

Roberts J

Citations:

[2015] EWHC 2795 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.553911

D v D: FD 2 Mar 2015

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

Judges:

Roberts J

Citations:

[2015] EWHC 1393 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.553907

Brooks v Brooks: HL 29 Jun 1995

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

Judges:

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

Citations:

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

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Citing:

Appeal fromBrooks v Brooks CA 27-May-1994
A single member pension fund scheme was a post nuptial settlement within the Act, and was variable by the court on a divorce. No third party would be affected. . .
CitedBosworthick v Bosworthick CA 1927
An annuity secured by a bond was found to be a settlement. . .
CitedLort-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 . .
CitedGriffiths v Dawson and Co FD 1993
The possibility that a pension scheme might fall within the scope of section 24(1)(c) was given judicial recognition. . .

Cited by:

CitedPearce 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 . .
CitedCharalambous 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 . .
CitedMartin-Dye v Martin-Dye CA 25-May-2006
The court was asked how to achieve fairness in ancillary relief proceedings on a divorce as respects pension entitlements. The parties had sufficient to allow a clean break, but the assets mixture included sums invested which would be returned only . .
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 May 2022; Ref: scu.78677

Bater v Greenwich London Borough Council: CA 28 Sep 1999

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

Citations:

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

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 37(2)(b)

Jurisdiction:

England and Wales

Family, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.78285

H v A (No2): FD 17 Sep 2015

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

Judges:

MacDonald J

Citations:

[2015] EWHC 2630 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Family, Media, Children

Updated: 18 May 2022; Ref: scu.552782

Roche v Roche: CA 1981

Citations:

(1981) Fam Law 243

Statutes:

Matrimonial Causes Act 1973 37

Cited by:

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

Family

Updated: 18 May 2022; Ref: scu.564372

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

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

Citations:

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

Links:

Commonlii

Family, Wills and Probate

Updated: 18 May 2022; Ref: scu.461079

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

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

Judges:

Wildblood QC J

Citations:

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

Statutes:

Family Law Act 1986 46

Jurisdiction:

England and Wales

Cited by:

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

Family, International

Updated: 18 May 2022; Ref: scu.450572

Kelson v Kelson: 11 Feb 1853

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

Citations:

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

Links:

Commonlii

Family, Trusts

Updated: 18 May 2022; Ref: scu.294226

Kelson v Kelson: 13 Jan 1853

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

Citations:

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

Links:

Commonlii

Family, Trusts

Updated: 18 May 2022; Ref: scu.294060

Dickens v Dickens: 9 Mar 1859

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

Citations:

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

Links:

Commonlii

Costs, Family

Updated: 18 May 2022; Ref: scu.287743

Green v Green: 1981

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

Judges:

Eastham J

Citations:

[1981] 1 WLR 391

Statutes:

Matrimonial Homes Act 1983 37(3)

Jurisdiction:

England and Wales

Cited by:

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

Family, Land

Updated: 18 May 2022; Ref: scu.279009

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

Judges:

Sir Mark Potter P

Citations:

[2006] 2 FLR 199

Jurisdiction:

England and Wales

Cited by:

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

Family, Litigation Practice

Updated: 18 May 2022; Ref: scu.272841

Davis v Davis: 1950

Citations:

[1950] P 125

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 18 May 2022; Ref: scu.268835

Whicker v Hume: HL 1858

Lord Cranworth said: ‘in these days, when the tendency of the educated and leisured classes is to become cosmopolitan – if I may use the word – you must look very narrowly into the nature of the residence suggested as a domicil of choice before you deprive a private man of his native domicil.’ and ‘By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it.’

Judges:

Lord Cranworth, Lord Wensleydale

Citations:

(1858) 10 HLC 124

Jurisdiction:

England and Wales

Cited by:

CitedWinans v Attorney-General HL 1904
A domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice. A domicile of origin is tenacious; the character of . .
CitedBarlow 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.

Family

Updated: 18 May 2022; Ref: scu.268051

Re Seaford Dec’d: CA 1968

A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made.
Held: The rule did not apply in family proceedings. Willmer LJ said that the rule could not be relied upon so as to confer upon the Court a jurisdiction which it did not have at the time when the order was made. The marriage having been determined by the husband’s death, the Court had no power to dissolve it when the order was made.
Davies LJ rejected the submission that the order took effect at te beginning of the day and said that this legal fiction had no relevance when there was evidence as to the real facts.

Judges:

Willmer LJ, Davies LJ

Citations:

[1968] P 53

Cited by:

CitedRe Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Wills and Probate

Updated: 18 May 2022; Ref: scu.267521

Regina v Secretary of State for Home Department ex parte Mellor: CA 4 Apr 2001

A prisoner had no right to facilities to artificially inseminate his wife. In this case, he might not be released for several years, and there were no medical reasons advanced for finding exceptional reasons under the Department policy. Provided the interference with the prisoner’s rights was proportionate, a refusal to provide the additional facilities which would be necessary was not an infringement of article 12, and nor was the policy unlawful or irrational.
Lord Phillips MR said: ‘Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristic of a penal system.’

Judges:

Lord Phillips MR, Peter Gibson LJ, Latham LJ

Citations:

Gazette 01-Jun-2001, Times 01-May-2001, [2001] EWCA Civ 472, [2002] QB 13, [2001] 3 WLR 533, [2001] 2 FLR 1158, (2001) 59 BMLR 1, [2001] 2 FCR 153, [2001] HRLR 38, [2001] Fam Law 736

Links:

Bailii

Statutes:

European Convention on Human Rights Art 12

Jurisdiction:

England and Wales

Citing:

CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Appeal fromRegina and Secretary of State for Home Department v Gavin Mellor Admn 31-Jul-2000
. .

Cited by:

CitedNilsen, Regina (on the Application of) v Governor of HMP Full Sutton and Another Admn 19-Dec-2003
The prisoner complained that having written an autobiography, the manuscript materials had been withheld, and that this interfered with his rights of freedom of expression.
Held: Such an action by the prison authorities was not incompatible . .
CitedNilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
CitedDickson and Another v United Kingdom ECHR 18-Apr-2006
The applicants were husband and wife who wanted infertility treatment by IVF. Mr Dickson as a prisoner, and they complained that the refusal of facilities was an interference in their right to family life as a refusal to fulfil a positive . .
CitedSmithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
CitedBaiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
CitedO’Dowd (Boy George) v National Probation Service London Admn 23-Dec-2009
Refusal of curfew relaxation was reasonable
The claimant had been released from prison early on licence subject to conditions including a home detention curfew. He was offered a place on a TV programme, Celebrity Big Brother, which would require relaxation or alteration of his place of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Administrative, Family, Prisons

Updated: 17 May 2022; Ref: scu.147496

Mason v Mason: 1972

The court considered the mental capacity required of somebody to give their consent to a decree of divorce.

Citations:

[1972] Fam 302

Jurisdiction:

England and Wales

Cited by:

CitedMasterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Lists of cited by and citing cases may be incomplete.

Family, Health

Updated: 17 May 2022; Ref: scu.259610

P v South Gloucestershire Council: FD 2006

The applicant’s child had been taken into care by the defendant, on the basis of a proposed care plan. The authority abandoned the care plan but without consulting with the mother first. She sought damages saying that the authority had infringed her human rights.
Held: Though the authority had indeed infringed her human rights, a declaration accordingly was adequate compensation, and no damages award was appropriate.

Judges:

Hedley J

Citations:

[2006] EWHC 749 (Fam)

Jurisdiction:

England and Wales

Cited by:

Appeal fromP v South Gloucestershire Council CA 3-Jan-2007
The local authority abandoned its care plan for her child without first consulting her. The mother appealed a refusal by the court to award damages.
Held: The appeal failed. The authority had infringed the mother’s human rights, but her remedy . .
Lists of cited by and citing cases may be incomplete.

Family, Human Rights, Damages

Updated: 17 May 2022; Ref: scu.248915

Lake v Lake: CA 1955

Mrs Lake’s answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband’s petition was dismissed, the Commissioner finding that there had been adultery but that it had been condoned. She sought to appeal against the finding of adultery
Held: Her appeal was refused. A party cannot appeal against a judgment when he has no complaint about the order in fact made. A party’s statutory right to appeal is governed by section 27 which allows for an appeal from ‘the whole or any part of any judgment or order’, which means the ‘formal judgment or order.’ It is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court’s judgmentit is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court’s judgment.
Hodson LJ said: ‘This is an attempt by a successful party to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal.’

Judges:

Sir Raymond Evershed MR, Hodson LJ

Citations:

[1955] P 336

Statutes:

Judicature Act 1925 27

Cited by:

CitedJones and others v Ceredigion County Council CA 28-Jul-2005
The parties had challenged the respondent’s decision not to provide free transport to school. The judge granted certificates allowing leave to apply direct to the House of Lords on two issues, and to the Court of Appeal on one other. The House later . .
CitedOffice of Communications and Another v Floe Telecom Ltd CA 10-Feb-2009
The court was asked to accept an appeal against not the order made by the tribunal, but the terms of the reasoned judgment.
Held: The appeal was allowed. The Tribunal had made findings which were unnecessary to its judgment, and which were . .
CitedSecretary of State for Work and Pensions v Morina and Another CA 23-Jul-2007
The Secretary of State had won his case on the substance but wished to challenge parts of the judgement which dealt with jurisdictional points.
Held: The court could hear an appeal by a successful party where there were good reasons for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 17 May 2022; Ref: scu.230066

In re the marriage of Salacup: 1993

Establishing of domicile were party’s immigration status changed over time.

Citations:

(1993) 116 FLR 137

Jurisdiction:

England and Wales

Cited by:

CitedMark 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: 17 May 2022; Ref: scu.228192

Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec): ChD 26 Jan 2001

The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable residence. The court reduced the specific legacy and made an order transferring the matrimonial home to the widow absolutely, thereby awarding her approximately one half of the value of the estate. The marriage had been very long, and the assets held in the husband’s name.
Held: Whilst the amount the claimant would have received on a divorce was only one factor, it can be a most important one. Too great a concentration on deeds and resources blurs the distinction between sections 1(2)(a) and (b). Having noted that there were sufficient assets in the estate to have provided for both parties on a divorce and that on divorce the court would have been looking for a clean break and that the case did not involve inherited assets there was stated to be no apparent reason why the court should depart from an equal division of the assets. It was stated that whether the divorce court would have awarded the applicant the matrimonial home or whether it would have sought to achieve equal division by some different route would have depended upon the needs and wishes of the parties.

Judges:

John Behrens

Citations:

Unreported, 26 January 2001, (2001) WTLR 493

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1(2)(a) 1(2)(b)

Jurisdiction:

England and Wales

Citing:

ApprovedRe Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
CitedStead v Stead 1985
The court declined to award a widow a large capital sum from her husband’s estate. . .
CitedWhite v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .

Cited by:

CitedMoorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 16 May 2022; Ref: scu.213640

Turton v Turton: CA 1988

When ascertaining the beneficial interests in a family home purchased by an unmarried couple, those interests had to be ascertained from consideration of the intentions of the parties at the time of the purchase; they were not to be left for determination in the light of subsequent events. Referring to Walker v Hall, Nourse LJ: ‘It is thus made clear that Dillon and Lawton LJJ were of the opinion that a beneficial interest acquired under an application of the principles stated in Gissing v Gissing can only be an absolute and indefeasible interest. It cannot be one which is liable to determine or to be defeated or diminished – either automatically or by the exercise of some discretion – on the happening of some future event, for example the separation of an unmarried couple who were living together at the time of its acquisition. The validity of that proposition is in my judgment beyond doubt. It must always be remembered that the basis on which the court proceeds is a common intention, usually to be inferred from the conduct of the parties, that the claimant is to have a beneficial interest in the house. In the common case where the intention can be inferred only from the respective contributions, either initial or under a mortgage, to the cost of its acquisition it is held that the house belongs to the parties beneficially in proportions corresponding to those contributions. . . .’ Lord Justice Kerr: ‘. . . once the court had found the existence of a constructive or implied trust whereby the beneficial rights to the property belonged to the parties in whatever shares the court determined, then the necessary consequence was the recognition by the court of rights which are proprietary in their nature and which lie wholly outside the exercise of any discretionary powers. That was made clear, inter alia, in Gissing v Gissing [1971] AC 886.’

Judges:

Lord Justice Nourse

Citations:

[1988] Ch 542

Jurisdiction:

England and Wales

Citing:

CitedWalker v Hall CA 1984
The court considered the way of distributing property purchased by an unmarried couple: ‘When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are . .
CitedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .

Cited by:

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

Trusts, Family

Updated: 16 May 2022; Ref: scu.199946

Re F (In Utero): 1988

A foetus prior to the moment of birth does not have independent rights or interests.

Citations:

[1988] (Fam) 122

Jurisdiction:

England and Wales

Cited by:

CitedEvans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.199257

Haldane v Haldane: PC 1977

(New Zealand) The court considered how under the New Zealand legislation for ancillary rlief, the court was to deal with property inherited by one party to the marriage: ‘Initially a gift or bequest to one spouse only is likely to fall outside the Act, because the other spouse will have made no contribution to it. But as time goes on, and depending on the nature of the property in question, the other spouse may well have made a direct or indirect contribution to its retention.’

Judges:

Lord Simon of Glaisdale

Citations:

[1977] AC 673

Cited by:

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

Family, Commonwealth

Updated: 16 May 2022; Ref: scu.197920

Preston v Preston: CA 1982

The court set out a series of principles applicable in ancillary relief cases where the resources exceeded the strict needs of the parties, including that the court should not make allowance for a spouse’s desire to be able to leave a sum to her children by her will, and ‘. . . the word ‘needs’ in section 25(1)(b) in relation to the other provisions in the subsection is equivalent to ‘reasonable requirements’, having regard to the other factors and the objective set by the concluding words of the subsection . . .’

Judges:

Ormrod LJ

Citations:

[1982] Fam 17

Statutes:

Matrimonial Causes Act 1973 25(1)(b)

Jurisdiction:

England and Wales

Cited by:

CitedWhite v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
MentionedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.197919

Moody v Stevenson: CA 12 Jul 1991

The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no jurisdiction to make an award arose.
Held: The court considered the application of section 3(2): ‘and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce.’
Waite J said: ‘The objective is that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased’s lifetime by virtue of his or her prospective entitlement under the matrimonial law.’ and ‘In other words the Act of 1975, when stripped down to its barest terms, amounts to a direction to the judge to ask himself in surviving spouses cases: `What would a family judge have ordered for this couple if divorce instead of death had divided them; what is the effect of any other section 3 factors of which I have not taken account already in answering that question; and what, in the light of those two inquiries, am I to make of the reasonableness, when viewed objectively, of the dispositions made by the will and/or intestacy of the deceased?’ If the judge finds those dispositions unreasonable, he will go on to ask himself: `What, in the light of those same inquiries, would be a reasonable provision for me to order for the applicant under section 2?” and ‘The starting point when fixing an appropriate provision under section 2 of the Act will, as already explained, be a consideration of the presumed entitlement of the husband under a notional divorce.’ In this case, the result was an order permitting him to continue to occupy the house.

Judges:

Mustill LJ and Waite J

Citations:

[1992] Ch 486, [1992] 2 WLR 640, [1992] 2 All ER 524, Independent 17-Sep-1991, Times 30-Jul-1991

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 3(2)

Citing:

CitedRe Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
CitedIn re Styler 1942
. .

Cited by:

CitedJessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
CitedMoorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Not preferredKrubert, 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 . .
CitedBarron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 16 May 2022; Ref: scu.196902

Re Besterman, decd: CA 1984

In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. In that calculation, the concept of what is `reasonable’ is nowhere mentioned, although the parties’ financial needs – which have been construed to mean `reasonable requirements’ – constitute one element to be considered. In an application under the Inheritance (Provision for Family and Dependants) Act 1975, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to `have regard’ and the overriding consideration is what is `reasonable’ in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court’s attention.’

Judges:

Oliver LJ

Citations:

[1984] Ch 458

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2, Matrimonial Causes Act 1973 25

Cited by:

CitedMoody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
CitedJessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
ApprovedElizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec) ChD 26-Jan-2001
The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable . .
CitedMoorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
PreferredKrubert, 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 . .
CitedBarron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 16 May 2022; Ref: scu.196901

Davis v Davis: CA 1993

The deceased had left his widow a life interest in his residuary estate, with power for his trustees to purchase a house for her occupation, which they had duly exercised. The essential question was whether, as the widow claimed, she should be awarded an absolute interest in the house, a question answered in the negative: ‘The Act of Parliament makes plain that the court’s powers only arise if the court is satisfied that the disposition of the deceased’s estate by his will fails to make reasonable financial provision for the plaintiff. It seems to me that the plaintiff has manifestly failed to cross the threshold. It is not for this court to rewrite the testamentary provisions of deceased persons lightly. If in this case it can be said that the provision of a life interest in the entire residuary estate is not reasonable provision then I think that could be asserted in almost any case in which the testator elects to make provision for his surviving spouse by that means.’

Judges:

Thorpe J

Citations:

[1993] 1 FLR 54

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2

Jurisdiction:

England and Wales

Cited by:

CitedKrubert, 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, Wills and Probate

Updated: 16 May 2022; Ref: scu.196906

Roberton v Roberton: 1999

Citations:

1999 SLT 38

Statutes:

Matrimonial Homes (Family Protection) (Scotland) Act 1991 1

Jurisdiction:

England and Wales

Cited by:

CitedGlasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.184720

Segal: 1993

Citations:

[1993] Fam Law 633

Jurisdiction:

England and Wales

Cited by:

CitedV v V (Ancillary relief: Power to order child maintenance) FD 6-Jun-2001
The parties had sought a child maintenance order form the court, but the husband resiled from his agreement.
Held: Where the court was unexpectedly blocked in this way, it had a power to make an order for payment by way of a lump sum of the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.182875

Hyde v Hyde: 1860

Parties to a polygamous marriage are not entitled as between themselves to any matrimonial relief under English law.

Citations:

(1860) LR 1 P and D 130

Cited by:

CitedBala and Others, Regina v CACD 10-May-2016
The court was asked whether parties to a polygamous marriage recognised in Nigeria could be exempt thereby from a charge as co-conspirators because of s2 of the 1977 Act. The judge had held the marriage invalid after finding that the defendant was . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.564469

Hussain v Hussain: CA 1983

A marriage celebrated outside England under a system of law permitting polygamy is not to be regarded as polygamous for the purpose of s.11(d) (or presumably for other purposes) if neither spouse had capacity to enter into a second marriage, such capacity being determined by the law of the domicile of the spouse in question immediately before the first marriage.

Citations:

[1983] Fam. 26

Statutes:

Matrimonial Causes Act 1973 11

Cited by:

CitedBala and Others, Regina v CACD 10-May-2016
The court was asked whether parties to a polygamous marriage recognised in Nigeria could be exempt thereby from a charge as co-conspirators because of s2 of the 1977 Act. The judge had held the marriage invalid after finding that the defendant was . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.564471

Shipman v Shipman: FD 1991

W sought an order under s37 of the 1973 Act restraining H in divorce proceedings from disposing of or dealing with $300,000, or one half of his severance pay, whichever was the greater, pending determination of the ancillary relief proceedings.
Held: The terms of s37 had not been satisfied. But, relying on Roche, it was wrong to believe that ‘there is no longer any inherent jurisdiction to freeze assets which may be put beyond the reach of the applicant.’ Lincoln J further held: ‘Counsel for the husband urges me to have regard to the many restrictions and safeguards surrounding the use of worldwide Mareva injunctions, and to assimilate the use of, and procedure for, injunctions in the Family Division to those in commercial Law. In my view the matrimonial field calls for a different approach. To my mind the circumstances here call for the injunction to continue. If it were discharged, the husband could well change his intentions, however genuine and well-disposed to the wife his present state of mind may be. Both he and the assets are out of the jurisdiction. Left without a job, and with new responsibilities, he will be faced with a temptation to eat into the whole of the fund.’

Judges:

Lincoln J

Citations:

[1991] 1 FLR 250

Statutes:

Matrimonial Causes Act 1973 37

Citing:

AppliedRoche v Roche CA 1981
. .

Cited by:

CitedLondon Borough of Harrow v Johnstone HL 13-Mar-1997
A possession action was lawful against a remaining joint tenant after a notice to terminate the tenancy had been given by the other tenant. An order against interference with possession of property did not extend to matters of the duration of the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.564373

Re Ames’ Settlement; Dinwiddy v Ames: 1946

The intended husband’s father in 1908 settled a sum payable within one year after the marriage on standard marriage settlement trusts. The marriage took pace, but was several years lter annulled. On the wife’s petition. After the settlor’s later death, the husband continued to receive the sums under the settlement. Held; The marriage having been annulled, there had been a total failure of consideration, the trusts were void ab intio, and all the sums were held un trust for the settlor’s executors.

Citations:

[1946] 1 All ER 689, [1946] Ch 217, 115 LJ Ch 344, 175 LT 222, 62 TLR 300, 90 Sol Jo 188

Trusts, Family

Updated: 16 May 2022; Ref: scu.556255

Donaldson v Donaldson: 1958

The parties were to divorce. H was leaving the RAF and received a gratuity of andpound;2,200 and, having commuted his pension, received a total of andpound;7,624 which he gave over to the woman he now wished to marry. She in turn bought a mnk farm which they operated together, but not yet at a profit. He lived rent free at the farm and retained a small pension. W had very limited earning capacity. The elder child was to leave his private school.
Held: In settling on an amount for maintenance, the court must look at H’s capacity and ability to provide it. Given that his needs were provided from the farm, the court made orders amounting to his entire cash income in favour of W.

Citations:

[1958] 1 WLR 827, [1958] 2 All ER 660, (1958) 102 Sol Jo 548

Statutes:

Matrimonial Casuses Act 1950

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 16 May 2022; Ref: scu.551324

Howard v Howard: CA 1945

Lord Greene MR said: ‘In my opinion there is no jurisdiction in the Divorce Court to make an order which will leave the husband in a state of starvation (to use rather picturesque language) with a view to putting pressure on trustees to exercise their discretion in a way in which they would not have exercised it but for that pressure. Under discretionary trusts (as, indeed, under this trust) other persons are potential beneficiaries. In many such trusts the range of potential beneficiaries is a very wide one. Here it extends to any future wife that the husband may marry and the children of any future marriage. The settlement has not been varied in that respect. On what ground should pressure be put upon the trustees to exercise their discretion in such a way as to pay to the husband, in order that he may pay maintenance to his wife, sums which in their discretion they would not otherwise have paid to him? It seems to me that such an order is as bad as an order on a man to pay a sum far in excess of what he could be ordered to pay out of his own means merely to put pressure on a rich relation to support him. That is not within the scope of s. 190 of the Act. What has to be looked at is the means of the husband, and by ‘means’ is meant what he is in fact getting or can fairly be assumed to be likely to get. I must not be misunderstood. It is, of course, legitimate (as was done in this case) to treat a voluntary allowance as something which the court can, in proper circumstances, infer will be likely to continue, and make an order on that basis. If and when the allowance is cut off, the husband can come back and apply to have the order modified. Similarly, in the case of a discretionary trust, if the court finds that the husband is in fact receiving regular payments under such a trust it is perfectly entitled to make an order on the footing that those payments will in all probability continue, leaving it to the husband to come back to the court if at some future date they are stopped. But in this case the trustees have exercised their discretion so that the husband will, as frequently happens under these discretionary trusts, get nothing. Trustees, for very good reasons, often do not give money to the husband and the only object of this order, so we are told, was to induce the trustees to change their decision as to the proper disposition and administration of this trust income. The trustees, if they were well advised, would say: ‘We have exercised our discretion and we refuse ‘to change it. It is only when circumstances alter that we ‘shall take them into account and exercise our discretion in ‘a way suitable to the altered circumstances as we can see them.’ If they were to do that the husband would be left with a voluntary allowance of 150l. out of which he has to pay 100l. to the wife, who has remarried.
In my opinion the practice, if it be a practice, indirectly to put pressure on trustees in this sort of way to commit a breach of their duty and to exercise their discretion in a way contrary to what they desire, is wrong . .’

Judges:

Lord Greene MR

Citations:

[1945] P 1

Cited by:

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

Family

Updated: 16 May 2022; Ref: scu.551323

Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department: SC 22 Feb 2017

Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the Secretary of State by the 1998 Act to act compatibly with the right to respect for family life guaranteed by article 8 of the ECHR. In each case, the Secretary of State concluded that the appellant did not qualify for leave to remain under the applicable provisions of Appendix FM to the Immigration Rules and that, applying the Immigration Directorate Instructions, ‘Family Members Under the Immigration Rules, Section FM 1.0, Partner and ECHR Article 8 Guidance’ there were no exceptional circumstances warranting the grant of leave to remain outside the Rules.
Held: The appeals failed. The Rules and Instructions applied in these cases were consistent with the proper application of article 8.
In the first case, there was no evidence placed before the respondent that there were exceptional circumstances. Ms Agyarko’s claim could not be regarded as very strong or compelling.
As to Ms Ikuga, part of the decision was incorrectly based. However, looking at the decision taken, the result would have been the same, and she not having put forward anything which might constitute ‘exceptional circumstances’ as defined in the Instructions, that is unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.
The ground of challenge under Article 20 EU failed. If a situation were to arise in which the refusal of a third-country national’s application for leave to remain in the UK would force his or her British partner to leave the EU, in breach of article 20 TFEU, such a situation could be addressed under the Rules as one where there were ‘insurmountable obstacles’, or in any event under the Instructions as one where there were ‘exceptional circumstances’. Typically, however the British citizen would not be forced to leave the EU, any more than in the case of Dereci, and the third-country national would not, therefore, derive any rights from article 20 .

Judges:

Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes
Lord Hodge

Citations:

[2017] UKSC 11, [2017] WLR(D) 126, [2017] 3 CMLR 3, [2017] 1 WLR 823, [2017] Imm AR 764, [2017] INLR 548, UKSC 2015/0129

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Human Rights Act 1998, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Appeal fromAgyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
CitedHuang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
CitedChikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
CitedRuiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
CitedMunir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
CitedJeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
CitedSen v The Netherlands ECHR 21-Dec-2001
. .
CitedRegina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
CitedTuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
CitedSezen v The Netherlands ECHR 31-Jan-2006
The case concerned ‘a functioning family unit where the parents and children are living together’. The court considered wehether a deportation would infringe the human rights of te applicant: ‘The Court has previously held that domestic measures . .
CitedEB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
CitedMF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
CitedHesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
CitedDereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
CitedSecretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
CitedAlokpa and Moudoulou v Ministre Du Travail, De L’Emploi Et De L’Immigration ECJ 10-Oct-2013
ECJ Citizenship of the Union – Articles 20 TFEU and 21 TFEU – Directive 2004/38/EC – Right of residence of a third-country national who is a direct relative in the ascending line of Union citizens who are minor . .
CitedIida v Stadt Ulm ECJ 8-Nov-2012
ECJ Articles 20 TFEU and 21 TFEU – Charter of Fundamental Rights of the European Union – Article 51 – Directive 2003/109/EC – Third-country nationals – Right of residence in a Member State – Directive 2004/38/EC . .

Cited by:

CitedHC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
CitedRhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .
CitedPatel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
CitedDereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Updated: 16 May 2022; Ref: scu.575309

O and S v Maahanmuuttovirasto V L: ECJ 6 Dec 2012

ECJ Citizenship of the Union – Article 20 TFEU – Directive 2003/86/EC – Right to family reunification – Union citizens who are minor children living with their mothers, who are third country nationals, in the territory of the Member State of which the children are nationals – Permanent right of residence in that Member State of the mothers who have been granted sole custody of the Union citizens – Change in composition of the families following the mothers’ remarriage to third country nationals and the birth of children of those marriages who are also third country nationals – Applications for family reunification in the Member State of origin of the Union citizens – Refusal of the right of residence to the new spouses on the ground of lack of sufficient resources – Right to respect for family life – Taking into consideration of the children’s best interests

Judges:

A. Rosas

Citations:

C-356/11, [2012] EUECJ C-356/11, ECLI:EU:C:2012:776, [2013] 1 Fam 203, [2013] All ER (EC) 563, [2012] WLR(D) 371, [2013] 2 WLR 1093

Links:

Bailii, WLRD

Statutes:

Directive 2003/86/EC

Jurisdiction:

European

Cited by:

CitedPatel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.467087

Brownlee’s Executrix v Brownlee: 1908

A party claiming that a property transfer was by way of gift has the onus of displcing the presumption in law against donation.

Citations:

1908 SC 232

Cited by:

CitedMcGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Lists of cited by and citing cases may be incomplete.

Scotland, Family

Updated: 15 May 2022; Ref: scu.540460

A v A (Maintenance Pending Suit: Payment of Legal Fees): FD 2001

The court made an order to provide that the monies paid by way of maintenance pending suit in respect of any matter can be brought into account by the judge making the order in the ancillary relief proceedings.

Judges:

Holman J

Citations:

[2001] 1 WLR 605

Jurisdiction:

England and Wales

Cited by:

CitedWyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .
CitedCurrey v Currey CA 18-Oct-2006
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of . .
CitedVince v Wyatt CA 8-May-2013
The parties had divorced some twenty years previously, but apparently without ancillary relief orders, the parties at the time being relatively poor. H was now wealthy and W applied for lump sum provision. H replied that there was no no evidence . .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 15 May 2022; Ref: scu.544254

Moynihan v Moynihan (No 2): FD 1997

The Queen’s Proctor applied to have set aside a decree absolute of divorce obtained by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The particulars set out in the petition were false in a number of material respects; the affidavit in support of the petition, in which the petitioner swore that everything stated in his petition was true, was perjured; the statement of the proposed arrangements for the child of the family, filed with the petition, was wholly misleading; the petitioner subsequently falsely told the court that the child had died when he knew full well that he was still alive; the acknowledgement of service purportedly signed by the respondent wife (and in which she purportedly admitted the adultery alleged in the petition) was false. Additionally, the petitioner falsely asserted an English domicile when he was in fact domiciled in the Philippines.
Held: Sir Stephen Brown P pointed to deliberate lies: ‘In order to deceive the court into accepting jurisdiction in his divorce suit, he told quite deliberate lies. He persisted in and added to the lies when the registrar at Tunbridge Wells County Court required confirmation and further elucidation of the domicile position. Those lies enabled the court to accept jurisdiction and to proceed to deal with the divorce suit.’ and ‘However, this was not his only deceit of the court. I am satisfied on the balance of probability that neither the respondent wife nor the co-respondent was served with the petition. Lord Moynihan arranged for false acknowledgements of service to be returned to the court, and yet a further deception related to the child of the family’. He concluded: ‘I find that there was a clear, deliberate and sustained deception of the court by Lord Moynihan . . Lord Moynihan unfortunately was a man accomplished in fraud and indeed in forgery.’
He concluded: ‘A decree absolute is generally considered to be good against all the world. It is an order ‘in rem’. However, if it has been obtained by fraud, there is a fundamental defect. In this case, I have no doubt that Lord Moynihan’s divorce petition was deliberately framed in a way which was calculated to deceive the court. All the subsequent representations and submissions which were made to the court were vitiated by fraud. He wished to obtain a divorce. He wished to do so even if his wife objected to it, as I believe she did or would have objected, if only on financial grounds. He quite deliberately set out to deceive the court. His affidavit verifying the petition was false, and in swearing it he committed perjury. He perverted the course of justice and succeeded in obtaining a decree. It is a gross case. The inevitable consequences to all are serious. I have no doubt that I should set aside and declare null and void the decree absolute and the decree nisi and dismiss the petition.’

Judges:

Sir Stephen Brown P

Citations:

[1997] 1 FLR 59

Jurisdiction:

England and Wales

Citing:

CitedLazarus Estates Ltd v Beasley CA 1956
There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .

Cited by:

CitedRapisarda v Colladon (Irregular Divorces) FC 30-Sep-2014
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Lists of cited by and citing cases may be incomplete.

Family

Updated: 15 May 2022; Ref: scu.537237

Gotliffe v Edelston: 1930

McCardie said that: ‘Husbands and wives have their individual outlooks. They may belong to different political parties, to different schools of thought. A wife may be counsel in the courts against her husband. A husband may be counsel against his wife. Each has a separate intellectual life and activities. Moreover, as Lord Bryce has said, the modern notion is that it is one’s right to assert one’s own individuality: see Lord Bryce’s Studies in History and Jurisprudence, vol. ii., pp. 459, 463. We are probably completing the transition from the family to the personal epoch of woman.’

Citations:

[1930] 2 KB 378

Cited by:

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

Family

Updated: 15 May 2022; Ref: scu.421368

H v H: 1904

W sought a decree of agility for her marriage saying she had not consented.
Held: Karminski J said: ‘It was argued by the Attorney-General that the facts of the present ease cannot be said to prove that the ceremony of marriage was performed under fear or duress, and he rightly emphasized, and I accept, that the principles are strict and should not be rashly extended.’ and ‘If the present ease was devoid of the element of fear I should be compelled to find that the parties to the present suit intended that the petitioner should become the wife of the respondent.’

Judges:

Karminski J

Citations:

(1904) P 258

Jurisdiction:

England and Wales

Cited by:

CitedSingh v Singh CA 1-Feb-1971
The wife appealed against refusal of her petition for agility and for the absence of consent. It had been an arranged marriage, and she met H at the altar. She found him repugnant, and refused to consummate the marriage.
Held: Her appeal . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 15 May 2022; Ref: scu.384440

Crewe v Crewe: 1800

On a suggestion that a charge of collusion and connivance, raised in argument on his own evidence, was a surprise on the husband, there being no counter plea or interrogatories, the Court refused to rescind the conclusion in order that letters might be pleaded, holding that the husband was bound to guard himself originally against such suggestions. A constant intercourse, continued for four years, between a wife and her paramour, not clandestine, but the common subject of conversation among servants and friends, raises a grave suspicion of the husband’s knowledge
and acquiescence.

Citations:

[1800] EngR 4, (1800) 3 Hag Ecc 123, (1800) 162 ER 1102

Links:

Commonlii

Family

Updated: 15 May 2022; Ref: scu.345780

Ann Rycroft, The Wife Of Henry Rycroft, And Pamela Rycroft, An Infant, By Their Next Friend v William M Christy And Henry Rycroft: 15 Jun 1840

A feme covert made a disposition of property, as to which it was doubtful whether it;
was settled to her separate use, The husband disclaimed.
Held: That whether separate property or riot, the husband’s disclaimer gave effect to the disposition of
the wife.

Citations:

[1840] EngR 693, (1840) 3 Beav 238, (1840) 49 ER 93

Links:

Commonlii

Jurisdiction:

England and Wales

Family, Trusts

Updated: 15 May 2022; Ref: scu.310119

Thompson v Thompson: CA 1991

Citations:

[1991] 2 FLR 530

Cited by:

CitedJudge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 15 May 2022; Ref: scu.279039

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 photocopying) that the photocopies themselves would now ‘fill a crate’, as the judge was told.
Held: Waite J summarised the legal background and procedures for discovery in the Family Division, referring to the Rules of the Supreme Court which governed civil proceedings in the High Court. He stated that they differ a little from that in other Divisions, in that the principal applicable rules were the 1977 Rules and that it had become standard practice to proceed to discovery by means of questionnaires. These partook of the character both of the request of discovery and of an interrogatory. In appropriate circumstances the court was exercising an inquisitorial jurisdiction: ‘underlying the whole basis of the exercise of the Court’s discretion under the amended section 25 of the 1973 Act is the duty of both sides to provide the court with information about all the circumstances of the case, including amongst other things, the particular matters specified in section 25.’
The first issue was: ‘what must the husband now disclose of the box file copies and the Wallace Court copies?’ and the Judge held that the husband must disclose all of the documents in both categories.
Waite J held: ‘There is another important feature in the context of discovery which it is relevant to mention as applying in family cases. The jurisdiction is a paternal one, and, where financial proceedings are involved, the court is exercising not merely a paternal but also, in appropriate circumstances, an inquisitorial jurisdiction. Underlying the whole basis of the exercise of the court’s discretion under the amended s. 25 of the 1973 Act is the duty of both sides to provide the court with information about all the circumstances of the case, including, among other things, the particular matters specified in s. 25. That was very clearly stated by the House of Lords in Livsey (formerly Jenkins) v Jenkins [1985] AC 424 . . (see the speech of Lord Brandon at p. 436).’

Judges:

Waite J

Citations:

[1992] 1 FLR 244

Statutes:

Matrimonial Causes Rules 1977 77(4)

Jurisdiction:

England and Wales

Citing:

CitedJenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .

Cited by:

CitedL v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
AppliedWhite v Withers Llp and Another QBD 19-Nov-2008
The claimant sought damages. The defendant firm of solicitors had represented the claimant’s wife in matrimonial procedings, and had used in evidence documents which the claimant said had been taken from him and were confidential.
Held: The . .
CitedWhite 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 . .
HildebrandTchenguiz 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 . .
CitedT v T (Interception of Documents) FD 5-Aug-1994
W feared that the H would seek to understate the true extent of his resources to the court and so she engaged in a number of activities, including opening and taking letters addressed to him and breaking into his office, with the intention of . .
CitedJ 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 . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 15 May 2022; Ref: scu.270364

Sheffield and Horsham v The United Kingdom: ECHR 30 Jul 1998

It is within a nation’s margin of appreciation to refuse to re-register birth details of people who had undergone sex-changes. Similarly it was not a human rights infringement not to allow post operative trans-sexuals to marry. However the court was critical of the United Kingdom’s apparent failure to take any steps to keep this area of the law under review. There is, the court said, an increased social acceptance of trans-sexualism and an increased recognition of the problems which post-operative transsexual people encounter. The court reiterated that this area ‘needs to be kept under review by Contracting States’
Hudoc No violation of Art. 8; No violation of Art. 12; No violation of Art. 14+8; Not necessary to examine Art. 13

Citations:

Times 04-Sep-1998, 22985/93, 23390/94, (1998) 27 EHRR 163, [1998] ECHR 69

Links:

Worldlii

Statutes:

European Convention on Human Rights Art 8, 12

Jurisdiction:

Human Rights

Citing:

CitedCossey v The United Kingdom ECHR 27-Sep-1990
A male to female transsexual who had undergone full gender reassignment surgery wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary . .
CitedRees v The United Kingdom ECHR 17-Oct-1986
The applicant had been born and registered as a female, but later came to receive treatment and to live as a male. He complained that the respondent had failed to amend his birth certificate.
Held: The court accepted that, by failing to confer . .
CitedCorbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .

Cited by:

CitedBellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedA v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
CitedGrant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
CitedWilkinson 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.

Human Rights, Family, Administrative

Updated: 15 May 2022; Ref: scu.165644

Conran v Conran: FD 14 Jul 1997

In deciding financial settlement, the court can consider contribution made by the Wife through her own special skills to the husband’s business. One could not sensibly fit an allowance for contribution into an analysis of a wife’s needs. That would do violence to language and to section 25(2), where contribution and needs are set out as different matters to which the court is required to have regard.

Judges:

Wilson J

Citations:

Times 14-Jul-1997, [1997] 2 FLR 615

Statutes:

Matrimonial Causes Act 1973 25

Citing:

ConsideredDart v Dart CA 2-Jul-1996
A strictly mathematical approach to calculating ancillary relief can be inappropriate in large sum cases. The statutory jurisdiction has to provide for all applications for ancillary financial relief, from the poverty stricken to the . .

Cited by:

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

Family

Updated: 15 May 2022; Ref: scu.79458