Tan v Choy: CA 19 Mar 2014

This appeal concerns the fifth indent of Article 3(1)(a) of the Regulation, which provides that ‘[i]n matters relating to divorce . . jurisdiction shall lie with the courts of the Member State (a) in whose territory . . the applicant is habitually resident if he or she has resided there for at least a year immediately before the application was made’.

Sir Brian Leveson P QBD, Aikens, Macur DBE LJJ
[2014] EWCA Civ 251
Bailii
Council Regulation (EC) No 2201/2003
England and Wales
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.
Family, European

Updated: 01 December 2021; Ref: scu.522607

Chai v Peng: FD 13 Mar 2014

Application for further maintenance pending suit.

Holman J
[2014] EWHC 750 (Fam)
Bailii
England and Wales
Cited by:
See AlsoChai v Peng FD 1-May-2014
The court was severely critical of the practice in divorce proceedings of uissuing a petition for divorce but then not serving it for some time. Holman J referred to a colourful metaphor deployed by leading counsel for the husband: ‘To file [a . .
See AlsoChai v Peng (1) FD 17-Oct-2014
. .
See AlsoChai v Peng (2) FD 17-Oct-2014
. .
See AlsoChai v Peng CA 12-Jun-2015
Application to adjourn full hearing of appeal. . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 December 2021; Ref: scu.522559

Ivleva v Yates: FD 4 Mar 2014

By an application Mrs Ivleva (formerly Yates) sought (i) recognition in this jurisdiction of a divorce granted in Ukraine in respect of her marriage to Mr Yates and (ii) the dismissal of divorce proceedings brought in this jurisdiction by Mr Yates.
Held: Justice to the husband required that recognition of the Ukrainian divorce be refused. Having regard to the nature of the proceedings and all the circumstances, the wife did not take reasonable steps to give the husband notice of the Ukrainian proceedings. ‘this conclusion does not represent any lack of comity between the two jurisdictions. In my view the approach to an application of this kind should not be governed exclusively by pragmatic considerations, although these will weigh heavily. The exercise of discretion must also be informed by a sense of basic fairness when considering the obtaining of an order that is of great importance to most people. Plain dealing must count for something, and it would be undesirable if a party who is fully participating in proceedings in one jurisdiction can unilaterally start proceedings in another and then expect recognition of a divorce effectively obtained in secret’

Peter Jackson J
[2014] EWHC 554 (Fam)
Bailii
Family Law Act 1986 45
Citing:
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) . .

Cited by:
CitedLiaw v Lee (Recognition of Divorce) FD 3-Jun-2015
The applicant sought that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam in favour of the respondent husband be refused recognition in England and Wales.
Held: The application was granted: ‘the husband . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 01 December 2021; Ref: scu.522289

Mann v Mann: FD 5 Mar 2014

The parties had agreed to an order settling the ancillary relief application with enforcement first to be through mediation. W applied to court for enforcement rejecting H’s request for mediation.

Mostyn J
[2014] WLR(D) 114,, [2014] Fam Law 795, [2014] 1 WLR 2807, [2014] EWHC 537 (Fam)
Bailii, WLRD
Family Proceedings Rules 3.3(1)(b)
Citing:
CitedHalsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Family, Costs

Updated: 01 December 2021; Ref: scu.522291

Ellis-Carr v Levy (Home Rights : Requirements To Establish Interest): LRA 19 Nov 2013

LRA Family Law Act 1996 – home rights notice – meaning and effect of ‘intention’ in statute – Applicant’s evidence – property never occupied as a matrimonial home – whether husband ever had entitlement to occupy by virtue of a beneficial estate or interest or application – application opposed by Applicant’s husband’s trustee in bankruptcy – effect of orders relating to property made by Registrar Derrett in the bankruptcy upheld by Norris J on appeal – Mental Capacity Act 2005 – CPR 21 – s283A Insolvency Act – s261 Enterprise Act 2002

Judge Hargreaves
[2013] LRAD 2012 – 1122
Bailii
Family Law Act 1996

Registered Land, Family, Human Rights, Insolvency

Updated: 01 December 2021; Ref: scu.521988

Hope v Krejci: FD 31 Jan 2014

The wife complained that the husband was in contempt in court in not having transferred to the wife, pursuant to financial remedy orders, two Mercedes motor cars, one of which has a personalised number plate LB01, and a Harley Davidson motorcycle.

Bodey J
[2014] EWHC B5 (Fam)
Bailii
England and Wales

Family, Contempt of Court

Updated: 01 December 2021; Ref: scu.521961

Ahmed v Secretary of State for The Home Department: Admn 14 Feb 2014

Application for judicial review of decisions of the Secretary of State for the Home Department refusing the Claimant’s application for leave to remain in the United Kingdom, having regard to spousal rights and the circumstances when an applicant who fails to adhere to the basic requirements in the Immigration Rules should nonetheless be entitled to rely on Article 8 to found a basis to remain.

Green J
[2014] EWHC 300 (Admin)
Bailii
Immigration Rules

Immigration, Human Rights, Family

Updated: 29 November 2021; Ref: scu.521234

Regina v Secretary of State for Health, Ex Parte Lally: QBD 26 Oct 2000

Tight restrictions had been placed on the circumstances under which children might visit prisoners in high security hospitals who were seen to be a risk to them having been convicted of murder or similar or who were schedule 1 offenders. The restrictions were valid, since they always allowed visits where a court had ordered contact, and there was no clear line to be drawn between different classes of convicted murderers. Contact was to be assessed in accordance with the child’s best interests, and breaks in contact with remoter family members such as nephews and nieces, need not be considered interference with family life.

Times 26-Oct-2000
European Convention on Human Rights
England and Wales

Children, Human Rights, Family

Updated: 29 November 2021; Ref: scu.85486

Beauclerk v Beauclerk: CA 19 Jan 1891

In August, 1890, a wife presented a petition for a divorce upon the ground of adultery coupled with cruelty. The marriage had taken place in December, 1858; the only child of the marriage, a son, was born in 1866, and the parties separated by agreement in 1870. A separation deed was then executed by them, which contained the usual covenant by the husband that he would not molest the wife; and they had lived apart ever since. The wife never took any proceedings before the petition; the cruelty charged took place between 1861 and 1870, and the adultery charged was in 1889. No act of personal violence was alleged; and the cruelty charged against the husband was his conduct in living for many years with successive mistresses, and telling his wife of his infidelities and of his preference of other women to her. The suit was undefended ; and the witnesses gave evidence that the wife’s health was delicate, and that the husband’s conduct had to his knowledge impaired it. The only explanation given by the petitioner of her delay in taking proceedings was in effect that she did not wish to proceed until her son had grown up and she could ascertain his wishes.
Held: by Butt, J., that the husband’s conduct did not amount to legal cruelty, and that the wife was not entitled to a divorce.
On appeal,
Held: by the Court (Lindley, Lopes, and Kay, L.JJ.), that, even assuming
legal cruelty to have been proved against the husband, the wife’s delay of
twenty years in taking proceedings had not been sufficiently explained, and
was so unreasonable that the Court, in exercise of its discretion under the
Divorce and Matrimonial Causes Act, 1857, s. 31, ought to refuse to decree
dissolution of the marriage.
The judgment of Butt, J., affirmed.
This was a petition presented by the wife

(1891) P 189, [1891] UKLawRpPro 4
Commonlii
Divorce and Matrimonial Causes Act 1857, Divorce Court Amendment Act 1860
England and Wales

Family

Updated: 29 November 2021; Ref: scu.670116

Practice Guidance (Transparency In The Family Courts): FD 16 Jan 2014

[2014] EWHC B3 (Fam)
Bailii
Citing:
See AlsoCommittal for Contempt of Court (Practice Guidance) COP 3-May-2013
The court gave guidance on the practice to be followed on applications for committal for contempt of court in the Court of Protection, particularly as to the requirements for decisions to be made in public. . .
See AlsoPractice Guidance (Transparency In The Court of Protection) CoP 16-Jan-2014
. .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 28 November 2021; Ref: scu.520129

Regina v Secretary of State for the Home Department Ex Parte Puttick: CA 1981

The applicant, then Astrid Proll, fled bail in Germany when awaiting trial on terrorist charges, entered England and under a false name, and married Mr Puttick. She resisted extradition saying that under the 1948 Act she was now a British National. She appealed against a decision that she could not rely upon her fraudulent behaviour.
Held: Her appeal failed.
The court considered the application of the doctrine of ex turpi causa no oritur actio: ‘It was well established that public policy required the courts to refuse to assist a criminal to benefit from his crime at least in serious cases.’ and ‘There is much authority on the circumstances in which the courts will refuse to enforce contractual rights upon grounds of public policy, but I doubt whether this is directly applicable where the right is conferred and the concomitant duty is imposed by statute.’ and ‘Statutory duties which are in terms absolute may nevertheless be subject to implied limitations based upon principles of public policy accepted by the courts at the time when the Act is passed.’ To apply this principle: ‘… Parliament can never have intended that a woman should be entitled to claim registration as a citizen … on the basis of a marriage achieved only on the basis of serious crime … the commission of the crime of perjury and forgery formed the foundation of her marriage … and … disentitled her to rely upon the right which she would otherwise have had to claim registration as a citizen. …’.

Donaldson LJ, Forbes J
[1981] 1 QB 767, [1981] 1 All ER 776
England and Wales
Citing:
Appeal fromPuttick v Attorney General etc FD 1980
Astrid Proll, a former member of the Baader-Meinhof gang absconded while awaiting trial in Germany. She entered the UK using a passport which she had bought in the name of Senta Sauerbier, and married Robin Puttick under that name. The German . .

Cited by:
CitedSudershan 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 . .
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 . .
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 . .
CitedJ and B CA 7-Nov-2002
The Crown prosecution service sought judicial review of a decision by the registrar of marriages to celebrate the marriage between the parties. He was due to face trial for murder, and she was to give evidence against him.
Held: The registrar . .
CitedRegina v Registrar General, ex parte Smith CA 1991
The applicant was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive . .
CitedHicks, Regina (on the Application of) v Secretary of State for the Home Department Admn 13-Dec-2005
The claimant, an Australian, presently held by the US as a suspected terrorist in Guantanamo Bay sought to be registered as a British Citizen, saying he was entitled to registration as of right.
Held: The past behaviour of an applicant was not . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 28 November 2021; Ref: scu.235261

Regina v Chief National Insurance Commissioner Ex Parte Connor: QBD 1981

The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on probation.
Held: The forfeiture rule does not apply universally to all cases involving a finding of manslaughter. What matters is the nature and not the name of the crime. Approving Gray v Barr, Lord Lane CJ said: ‘I would respectfully agree with that dictum, and I would agree that in each case it is not the label which the law applies to the crime which has been committed, but the nature of the crime itself which in the end will dictate whether public policy demands the court to drive the applicant from the seat of justice. Where that line is to be drawn may be a difficult matter to decide, but what this court has to determine is whether in the present case what this applicant did was sufficient to disentitle her to her remedy.’ and ‘The fact that there is no specific mention in the act of disentitlement so far as the widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this act against the background of the law as it stood at the time.’ As to the rule in Gray v Barr that not every form of illegality will cause a court to reject a claim: ‘I would respectfully agree with that dictum and I would agree that in each case it is not the label which the law applies to the crime which has been committed but the nature of the crime itself which in the end will dictate whether public policy demands the court to drive the applicant from the seat of justice. Where that line is to be drawn may be a difficult matter to decide, but what this court has to determine is whether in the present case what this applicant did was sufficient to disentitle her to her remedy.’ As the applicant had been found by the jury deliberately to have stabbed her husband, the rule applied.

Lord Lane CJ
[1981] 1 QB 758, [1981] 1 All ER 769
Social Security Act 1975 24
England and Wales
Citing:
CitedGray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
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. . .

Cited by:
CitedDunbar (As Administrator of Tony Dunbar Deceased) v Plant CA 23-Jul-1997
The couple had decided on a suicide pact. They made repeated attempts, resulting in his death. Property had been held in joint names. The deceased’s father asked the court to apply the 1982 Act to disentitle Miss Plant.
Held: The appeal was . .
CitedSudershan 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 . .
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 . .
CitedJ and B CA 7-Nov-2002
The Crown prosecution service sought judicial review of a decision by the registrar of marriages to celebrate the marriage between the parties. He was due to face trial for murder, and she was to give evidence against him.
Held: The registrar . .
CitedRegina v Registrar General, ex parte Smith CA 1991
The applicant was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive . .
CitedHicks, Regina (on the Application of) v Secretary of State for the Home Department Admn 13-Dec-2005
The claimant, an Australian, presently held by the US as a suspected terrorist in Guantanamo Bay sought to be registered as a British Citizen, saying he was entitled to registration as of right.
Held: The past behaviour of an applicant was not . .
CitedLondon Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
CitedMack v Lockwood and Others ChD 19-Jun-2009
The claimant had been convicted of the manslaughter of his wife. He now applied for relief agsinst forfeiture of his share of her estate. He was elderly and had suffered some mental impairment after a stroke, which might have led him to misjudge his . .
CitedSecretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
CitedD v L and Others ChD 16-Apr-2003
The claimant had been found guilty of the manslaughter by diminished responsibility of the deceased. He now sought disapplication of the 1982 Act.
Held: The application failed: ‘The reforms introduced by the Homicide Act 1957 were designed to . .

Lists of cited by and citing cases may be incomplete.

Benefits, Family

Updated: 28 November 2021; Ref: scu.199530

Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages: SC 11 Dec 2013

The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 Act.
Held: That a religion did not involve beliefs in a god should not be a bar to registration of its places of worship under the Act.
Toulson L said: ‘Unless there is some compelling contextual reason for holding otherwise, religion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today’s society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism. The evidence in the present case shows that, among others, Jains, Theosophists and Buddhists have registered places of worship in England. Lord Denning in Segerdal [1970] 2 QB 697, 707 acknowledged that Buddhist temples were ‘properly described as places of meeting for religious worship’ but he referred to them as ‘exceptional cases’ without offering any further explanation. The need to make an exception for Buddhism (which has also been applied to Jainism and Theosophy), and the absence of a satisfactory explanation for it, are powerful indications that there is something unsound in the supposed general rule. ‘
. . And ‘ For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. ‘

Lord Neuberger, President, Lord Clarke, Lord Wilson, Lord Reed, Lord Toulson
[2013] UKSC 77, [2013] WLR(D) 492, [2014] PTSR 1, [2014] 1 AC 610, [2014] 1 All ER 737, [2014] 2 WLR 23, [2014] 1 FCR 577, UKSC 2013/0030
Bailii, WLRD, Bailii Summary, SC Summary, SC
Places of Worship Registration Act 1855, Charities Act 2011 3(2)(a)
England and Wales
Citing:
CitedDavis v Beason, Sheriff 3-Feb-1890
United States Supreme Court. The defendant claimed that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs.
Held: The assetion failed: ‘It was never intended or supposed that the . .
CitedAdelaide Company of Jehovah’s Witnesses Inc v The Commonwealth 1943
Latham CJ said: ‘It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world.’ . .
CitedUnited States v Seeger 8-Mar-1965
United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces. . .
Appeal fromHodkin and Another, Regina (on The Application of) v Registrar General of Births, Deaths and Marriages Admn 19-Dec-2012
The claimants, both scientologists, wanted to be married as the London Church Chapel. The respondent had declined to register it as a place of worship under the 1855 Act.
Held: The claim failed. Scientology is a religion. Counsel for the . .
CitedRegina v Registrar General, Ex parte Segerdal QBD 1969
The Church of Scientology challenged the refusal of the Registrar General to register its chapel at East Grinstead as a place of meeting for religious worship.
Held: The challenge failed. . .
OverruledRegina v Registrar General, Ex parte Segerdal CA 1970
The Church of Scientology chapel at East Grinstead, Sussex was not a ‘place of meeting for religious worship’ within the meaning of section 2 of the 1855 Act since that would require reverence to a deity. The Church of Scientology’s services did not . .
CitedWelsh v United States 15-Jun-1970
United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’ . .
CitedMalnak v Yogi 2-Feb-1979
United States Court of Appeals – Third Circuit. The court considered whether the programme of teaching transcendental meditation and its associated Science of Creative Intelligence was a religious activity and so was not to be allowed to be taught . .
CitedIn re South Place Ethical Society 1980
The court considered the meaning and nature of religious belief, and whether a trust for this purpose could be charitable.
Held: Dillon J referred to Russell LJ as having taken the view that the court could hold that there are purposes ‘so . .
CitedChurch of the New Faith v Commissioner of Pay-Roll Tax 1983
(Victoria) Under the Victoria Pay-roll Tax Act 1971, there was an exemption from tax payable under the Act for wages paid by a religious institution. The question considered by the High Court was ‘whether the beliefs, practices and observances which . .

Lists of cited by and citing cases may be incomplete.

Administrative, Family, Ecclesiastical

Updated: 26 November 2021; Ref: scu.518899

Brewster v Northern Ireland Local Government Officers’ Superannuation Committee: CANI 1 Oct 2013

Appeal by the Committee and the Department of the Environment for Northern Ireland from a decision allowing the respondent’s application for judicial review of a decision by the Superannuation Committee not to pay a survivor’s pension to the respondent following the death of her cohabiting partner.
Held: The appeal succeeded. Higgins LJ found that the nomination requirement was not unjustified or disproportionate; and Coghlin LJ also concluded that the requirement had not been shown to be manifestly without reasonable justification.

Higgins LJ, Girvan LJ and Coghlin LJ
[2013] NICA 54
Bailii
Local Government Pension Scheme (Benefits, Membership
and Contributions) Regulations 2009
, European Convention on Human Rights 14
Northern Ireland
Citing:
Appeal fromBrewster, Re Judicial Review QBNI 9-Nov-2012
The applicant challenged the decision of the respondent Northern Ireland Local Government Officers’ Superannuation Committee (‘NILGOSC’) made on 1 July 2011, by which it declined to pay a survivor’s pension to the applicant following the death of . .

Cited by:
Appeal fromBrewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .

Lists of cited by and citing cases may be incomplete.

Family, Financial Services, Discrimination, Human Rights

Updated: 26 November 2021; Ref: scu.517770

Vallianatos And Others v Greece: ECHR 7 Nov 2013

Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life and amounted to unjustified discrimination between different-sex and same-sex couples, to the detriment of the latter.
Held: The introduction of registered partnerships only for different sex couples, to exist alongside marriage which was also only open to different sex couples, constituted a breach of article 14 read with article 8 of the Convention

Dean Spielmann, P
29381/09, [2013] ECHR 1110, 32684/09, 36 BHRC 149, (2014) 59 EHRR 12
Bailii
European Convention on Human Rights 8 14
Human Rights
Citing:
Legal SummaryVallianatos And Others v Greece (LS) ECHR 7-Nov-2013
ECHR (Grand Chamber) Article 14
Discrimination
Exclusion of same-sex couples from ‘civil unions’: violation
Facts – The first application was lodged by two Greek nationals, and the second by six . .

Cited by:
CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
CitedSteinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Discrimination

Updated: 25 November 2021; Ref: scu.517642

Gissing 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 person, whether spouse or stranger, in whom the land is not vested. A common intention has to be inferred from the parties’ conduct as to how the beneficial interest is to be held. The relevant intention is that which a reasonable person would draw from the parties’ words or conduct. The court must determine what inferences can reasonably be drawn in each case.
Viscount Dilhorne said: ‘It may be that it is alleged that some time after the acquisition of the matrimonial home the spouses formed the intention of sharing the beneficial interest. It may well be difficult to establish this but if it was, for instance, proved that up to the time when such an intention is alleged to have been formed, the mortgage payments were made by one spouse and thereafter by the other, then proof of that would tend to support the allegation.’
Lord Diplock said that where the most likely inference from the parties’ conduct is that the beneficial interest was not to belong solely to the party in whom the legal title is vested, the court must determine what in all the circumstances is a fair share: ‘A resulting, implied or constructive trust – and it is unnecessary for present purposes to distinguish between these three classes of trust – is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.’
As to the shares upon which the property was held: ‘In such a case [where the court is satisfied that it was the common intention of both spouses that the contributing wife should have a share in the beneficial interest and that her contributions were made upon this understanding] the court must first do its best to discover from the conduct of the spouses whether any inference can reasonably be drawn as to the probable common understanding about the amount of the share of the contributing spouse upon which each must have acted in doing what each did, even though that understanding was never expressly stated by one spouse to the other or even consciously formulated in words by either of them independently. It is only if no such inference can be drawn that the court is driven to apply as a rule of law, and not as an inference of fact, the maxim ‘equality is equity’, and to hold that the beneficial interest belongs to the spouses in equal shares.
The same result however may often be reached as an inference of fact. The instalments of a mortgage to a building society are generally repayable over a period of many years. During that period, as both must be aware, the ability of each spouse to contribute to the instalments out of their separate earnings is likely to alter, particularly in the case of the wife if any children are born of the marriage. If the contribution of the wife in an early part of the period of repayment is substantial but is not an identifiable and uniform proportion of each instalment, because her contributions are indirect or, if direct, are made irregularly, it may well be a reasonable inference that their common intention at the time of the acquisition of the matrimonial home was that the beneficial interest should be held by them in equal shares and that each should contribute to the cost of its acquisition whatever amounts each could afford in the varying exigencies of family life to be expected during the period of repayment. In the social conditions of today this would be a natural enough common intention of a young couple who were both earning when the house was acquired but who contemplated having children whose birth and rearing in their infancy would necessarily affect the future earning capacity of the wife.’

Lord Diplock, Viscount Dolhorne, Lord Reid, Lord Morris, Lord Pearson
[1970] 3 WLR 255, [1971] AC 886, [1970] 2 All ER 780, [1970] UKHL 3
Bailii
England and Wales
Cited by:
CitedRoy Green v Vivia Green PC 20-May-2003
PC (Jamaica) The claimant sought a declaration that he was entitled to one half of the marriage assets on divorce. They had each acquired various properties and assets both in Jamaica and the USA. The judge at . .
CitedB and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
ConsideredSpringett v Defoe CA 1992
Partners lived together, without being married, as secure joint tenants. They exercised the right to buy, contributing three quarters and one quarter of the price respectively. At the time they intended to marry. They did not discuss he shares, and . .
CitedFoskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
CitedLloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
AppliedStokes v Anderson CA 1991
The claimant had made two payments, amounting together to andpound;12,000, towards the acquisition of the one half share of the defendant’s ex-wife in the net equity (valued at andpound;90,000) in a house in which the claimant and the respondent . .
CitedHyett v Stanley and others CA 20-Jun-2003
The couple had lived together at the property without being married for several years. The house was held in the man’s sole name, and after his death she sought a half share in it. It was established that she had been told she should have a half . .
AppliedBurns v Burns CA 1984
Long Relationship Not Enough for Interest in Home
The parties lived together for 17 years but were not married. The woman took the man’s name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. . .
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 . .
CitedTurton 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 . .
CitedGrant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
CitedMcFarlane v McFarlane CANI 1972
The parties disputed their respective shares in the family home. The facts in Pettitt and Gissing ‘were not such as to facilitate or encourage a comprehensive statement of this vexed branch of the law’ and ‘much remains unsettled.’ The court . .
CitedSpringette v Defoe CA 1-Mar-1992
Property was purchased in joint names, but with no express declaration of the beneficial interests. The couple had lived together for a short time as joint tenants of the local authority. They were able to purchase at a substantial discount from the . .
CitedCobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
CitedVan Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
CitedCollier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
CitedClarke v Harlowe ChD 12-Aug-2005
The parties lived together. They acquired between them several properties of which the last was declared to be held as joint tenants. The relationship broke down. The parties now sought a declaration as to the destination of the proceeds of sale, . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedEves v Eves CA 28-Apr-1975
The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
CitedJames v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
CitedFowler v Barron CA 23-Apr-2008
The parties had lived together for many years but without marrying. The house had been put in joint names, but without specific advice on the issue or any express declaration of trust. In practice Mr Barron made the direct payments for the house and . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
CitedParris v Williams CA 23-Oct-2008
The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a . .
CitedThorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
CitedCooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
CitedClarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .
CitedJones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
CitedSingh v Singh and Another ChD 8-Apr-2014
The parties disputed ownership of various valuable properties. The father asserted that they were held under trusts following the Mitakshara Hindu code, under a common intention constructive trust. The son said that properties held in his own name . .
CitedLloyds Bank plc v Rosset CA 13-May-1988
Claim by a wife that she has a beneficial interest in a house registered in the sole name of her husband and that her interest has priority over the rights of a bank under a legal charge executed without her knowledge. The case raises a point of . .
CitedSen v Headley CA 28-Feb-1991
D, who was in hospital and near death, said to R (his former partner): ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ After D’s death R discovered that D had put had put into her bag the only . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts, Estoppel

Leading Case

Updated: 25 November 2021; Ref: scu.182237

His Majesty’s Advocate v Mary Drummond, Only Daughter of The Marriage Between James, Lord Drummond and Lady Jane Gordon: HL 3 Apr 1753

Provision to Heirs and Children – Ante-Nuptial Contract – Implied Condition. –
By an ante-nuptial contract, provision was made for daughters, if one, of 40,000 merks, if two, 50,000 andc., payable at their respective ages of eighteen, or on marriage, providing that these should be in full of all they could claim as natural portion, or bairns’ part of gear, which they, or either of them, as heir, or heirs of line, or at law, might claim. The respondent was the only daughter, and she claimed the 40,000 merks when eighteen years of age; but it was objected that this clause supposed that the daughters were only to be paid the provision upon failure of issue male of the marriage, and, therefore, that it was conditional. Held her entitled to her provision. Reversed in the House of Lords.

[1753] UKHL 6 – Paton – 692, (1753) 6 Paton 692
Bailii
Scotland

Family

Updated: 22 November 2021; Ref: scu.558212

Countess of Strathmore v George Forbes, Sometime Factor and Steward To The Said Countess, and Susan-Janet-Emilia Forbes, An Infant, Lawful Daughter of The Said George Forbes, By The Said Countess, His Wife: HL 20 Mar 1751

Marriage – Cohabitation – Proof. –
A declarator of marriage and legitimation was brought by the respondent, Forbes, founding upon marriage celebrated and performed in Scotland, by some clergyman unknown; and founding, also, on cohabitation in Scotland, and also cohabitation as man and wife in Holland. Held him entitled to a proof of the marriage, and also of the cohabitation as man and wife in Scotland, but not of the cohabitation in Holland. On advocation of this judgment of the Commissaries, the Court remitted to them to allow a proof of the marriage in Scotland, and of the cohabitation in Holland, as an incident of that marriage. On appeal to the House of Lords, appeal withdrawn, of consent, and interlocutors affirmed.

[1751] UKHL 6 – Paton – 684
Bailii
Scotland

Family

Updated: 22 November 2021; Ref: scu.558203

George Montgomery-Moir, Esq of Leckie v Anne, His Wife, and Others: HL 24 Apr 1751

Separation and Aliment – Cruelty. –
The respondent raised an action of separation and aliment against her husband, the appellant, on the ground of cruelty and a calumny published by him against her honour and reputation. It was objected, that there was no relevant statement to support the action. The Commissaries allowed a proof of the libel. On advocation the Court refused the bill, but remitted, with instructions to the Commissaries, to allow a proof only of such facts as appeared material, and of the publication alleged. Proof of the calumnies on the part of the husband was allowed. The Commissaries found facts and circumstances proved relevant to infer separation. On bill of advocation the Court refused the bill, and remitted to the Commissaries. In the House of Lords reversed, and held the evidence not sufficient to support the conclusions for separation and aliment.

[1751] UKHL 6 – Paton – 687
Bailii
Scotland

Family

Updated: 22 November 2021; Ref: scu.558207

TL v ML and others: FD 9 Dec 2005

[2005] EWHC 2860 (Fam)
Bailii
England and Wales
Cited by:
CitedRubin v Rubin FD 10-Mar-2014
The court heard an application by the wife for a legal services payment order. . .
CitedMG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .
CitedMG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 22 November 2021; Ref: scu.279014

Rubin v Rubin: FD 10 Mar 2014

The court heard an application by the wife for a legal services payment order.

Mostyn J
[2014] EWHC 611 (Fam)
Bailii
Legal Aid, Sentencing and Punishment of Offenders Act 2012
England and Wales
Citing:
CitedTL v ML and others FD 9-Dec-2005
. .
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 . .
CitedMakarskaya v Korchagin FD 21-Jun-2013
. .

Cited by:
CitedMG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 22 November 2021; Ref: scu.522292

Way v Way: FD 1951

Hodson, J. said: ‘Questions of consent are to be dealt with by reference to the personal law of the parties rather than by reference to the law of the place where the contract was made. This view is not covered by direct authority, but it is, I think, supported by the judgment of Lord Merriman, P. in Apt v Apt162 . . When giving the judgment of the Court of Appeal dismissing the petitioner’s appeal in [Apt’s] case, Cohen, L.J. said: ‘In our opinion the method of giving consent as distinct from the fact of consent is essentially a matter of lex loci celebrationis and does not raise the question of capacity.’ Marriage is essentially a voluntary union and as Dr Idelson put it (and I cannot improve on the phrase) ‘consent is an emanation of personality’. It is therefore, I think, justifiable and consistent with authority to apply the matrimonial law of each of the parties.’
When that case went to the Court of Appeal, under the name of Kenward v Kenward,163 Sir Raymond Evershed, M.R., at 133, assumed that what Hodson, J. had said about the relevant law to be applied was correct.
Both Nina and the respondent were domiciled in Poland at the time of the ceremony of marriage on 2 February 1968. It is therefore for Polish law to answer whether, on the facts as I have found them, the marriage was invalid by reason of duress.’

Hodson J
(1950) P 71
England and Wales
Cited by:
ApprovedSilver v Silver CA 1955
. .
CitedKenward v Kenward CA 1961
. .
CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 20 November 2021; Ref: scu.648169

Burns v Burns: 2008

[2008] 1 FLR 813
England and Wales
Cited by:
CitedHudson v Leigh FD 5-Jun-2009
The claimant sought a decree of divorce. The ceremony had been a religious one in Cape Town. They had intended it to be followed by a ceremony in a register office in England, but this did not happen. The pastor in south Africa said that he had . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 November 2021; Ref: scu.376130

Burns v Burns: CA 30 Jul 2004

Application for leave to appeal against ancillary relief order.

[2004] EWCA Civ 1258, [2004] 3 FCR 263
Bailii
England and Wales
Cited by:
MentionedHeyer v Newby CA 19-Oct-2005
The parties had settled their ancillary relief case by consent, but shortly afterwards, shares in the husband’s company were sold creating a very substantial windfall in his favour. The former wife sought to vary the order. The husband appealed an . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 November 2021; Ref: scu.276322

Richards v Dove: ChD 1974

[1974] 1 All ER 888
Cited by:
AppliedBurns v Burns CA 1984
Long Relationship Not Enough for Interest in Home
The parties lived together for 17 years but were not married. The woman took the man’s name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 19 November 2021; Ref: scu.198162

Hazell v Hazell: CA 1972

The parties disputed the shares they should take in a family home.
Held: Shares should normally be ascertained at the time of separation – not at the date when they acquired the house. If a wife contributes directly or indirectly, in money or money’s worth, to the initial deposit or to the mortgage instalments.
Megaw LJ summed up succinctly that it would be sufficient to let the wife in to share the matrimonial home ‘if as a matter of common sense the wife’s contributions ought to be treated as being a contribution towards the expenses of the acquisition of the matrimonial home.’

Lord Denning MR, Megaw LJ
[1972] 1 All ER 923, [1972] 1 WLR 301
England and Wales
Cited by:
AppliedBurns v Burns CA 1984
Long Relationship Not Enough for Interest in Home
The parties lived together for 17 years but were not married. The woman took the man’s name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 19 November 2021; Ref: scu.189967

Falconer v Falconer: CA 1970

[1970] 3 All ER 449
England and Wales
Cited by:
AppliedBurns v Burns CA 1984
Long Relationship Not Enough for Interest in Home
The parties lived together for 17 years but were not married. The woman took the man’s name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. . .

Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 19 November 2021; Ref: scu.198161

Jenkins v Livesey (formerly Jenkins): HL 1985

The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however became engaged to a new partner before the consent order was made, and remarried two days after. Disclosure had been given, but the House was now asked whether there remained a continuing duty to disclose material changes which occurred after the disclosure but before a consent order was made, and if such a duty existed, what effect that had on the order itself.
Held: There is an enhanced duty of full and frank disclosure upon legal professionals acting in family proceedings, and particularly in ancillary relief proceedings. The duty continued after disclosure until any final order was made. W was under a continuing duty to disclose the fact of her engagement as soon as it took place. Her failure was relevant to the validity of the consent order, and since the undisclosed fact undermined the basis of the consent order, the order was set aside

Lord Hailsham LC, Lord Scarman, Lord Keith, Lord Bridge, Lord Brandon
[1985] AC 424, [1984] UKHL 3, [1985] FLR 813, [1985] 1 All ER 106, [1985] 2 WLR 47
Bailii
England and Wales
Citing:
CitedMinton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Criticised in partWales v Wadham FD 1977
H and W agreed a consent order following a divorce under which H was to pay W andpound;13,000 from his half-share of the matrimonial home in settlement of W’s claims for financial provision for herself. Both consulted solicitors and the agreement . .
Citedde Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
CitedTommey v Tommey FD 1983
W asked the court to set aside a consent financial relief order. She was to transfer her half of the home to H, in return for andpound;8,000 paid by H in settlement of her financial provision. She said that in the negotiations leading up to the . .
CitedRobinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
CitedPractice Direction (Family Division: Financial Statement) 1984
The decision of the Court of Appeal in Jenkins v. Livesey (formerly Jenkins) … is a reminder that in all cases where application is made for a financial provision or property adjustment order the court is required to have before it an agreed . .

Cited by:
CitedP v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
CitedKelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
CitedSoulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
CitedHildebrand 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 . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedS v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
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 . .
CitedNG 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: . .
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 . .
CitedGohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
CitedS 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 . .
CitedSharland 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 . .
CitedSharland 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.

Litigation Practice, Family

Updated: 19 November 2021; Ref: scu.187045

In Re L (A Child) (Contact: Domestic Violence); In Re V (A Child) (Contact: Domestic Violence); In Re M (A Child) (Contact: Domestic Violence); In Re H (A Child) (Contact: Domestic Violence); In re L, V, M and H (Children): CA 21 Jun 2000

When considering contact applications after domestic violence, the approach should be child centred, and according to the criteria in the Act. The circumstances of the violence should be looked into, and the potentially damaging effect of contact with a violent parent should not be underestimated. The parent’s possible contribution to the child and facing up to the reality of what had happened should be allowed for. Still domestic violence was not an absolute bar to contact. The term ‘parental alienation’ is unhelpful, and is better thought of as outright hostility.

Butler-Sloss LJ, Thorpe LJ, Waller LJ
Times 21-Jun-2000, Gazette 03-Aug-2000, [2000] Fam 260, [2000] Fam Law 615, [2000] EWCA Civ 194, [2000] 4 All ER 609, [2000] 2 FCR 404, [2000] Fam Law 603, [2001] 2 WLR 339, [2000] 2 FLR 334
Bailii
Children Act 1989
England and Wales
Cited by:
CitedThe Father v The Mother, O by Cafcass Legal; In re O (a Child) (Contact: Withdrawal of application) FD 12-Dec-2003
The father sought to withdraw his application for contact, but the court took the opportunity to explain some points relating to contact disputes.
Held: Such disputes engender very deep feelings. Courts must ensure contact with both parents . .
CitedIn re H (A Child) (Contact: Domestic Violence), Ali v Hussain (Guidelines Re Allegations of Domestic Violence Appended) CA 22-Nov-2005
The mother appealed against an order granting contact to the father. There had been allegations of domestic violence.
Held: The family courts had been subject to much criticism. It was important where there was some evidence of poor practice . .
CitedPayne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Family, Children

Updated: 19 November 2021; Ref: scu.81981

Vince v Wyatt: CA 13 Jun 2013

(Subsidiary judgment) The former wife sought financial provision by way of a lump sum payment, but the application was made some twenty years after the divorce. Subsequently, H had become wealthy.
Held: The court set aside the orders of the deputy judge; struck out the wife’s substantive application; and ordered that, of the andpound;125,000 which by then the husband had paid in full, the wife should repay to him such sum as exceeded the state of her account with her solicitors, which amounted to an order for repayment of andpound;36,677. The court explained its striking-out order and its repayment order in judgments delivered on 8 May and 13 June 2013 respectively.

Thorpe, Jackson, Tomplinson LJJ
[2013] EWCA Civ 934
Bailii
England and Wales
Cited by:
Appeal fromWyatt 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 . .

Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 18 November 2021; Ref: scu.514233

Bernard v Josephs: CA 30 Mar 1982

The court considered the division of proceeds of sale of a house bought by an unmarried couple.
Held: Where the trusts for which a property was purchased have been concluded, the house should be sold.
Griffiths LJ said: ‘the fact that one party paid the mortgage may indicate that it was recognised by the couple that that party was solely responsible for providing the purchase price and therefore to be regarded as the sole beneficial owner . . When the proceeds of sale are realised there will have to be equitable accounting between the parties before the money is distributed. If the woman has left, she is entitled to receive an occupation rent, but if the man has kept up all the mortgage payments, he is entitled to credit for her share of the payments:if he has spent money on recent redecoration which results in a much better sale price, he should have credit for that, not as an altered share, but by repayment of the whole or a part of the money he has spent. These are but examples of the way in which the balance is to be struck . . It might in exceptional circumstances be inferred that the parties agreed to alter their beneficial interests after the house was bought; an example would be if the man bought the house in the first place and the woman years later used a legacy to build an extra floor to make more room for the children. In such circumstances the obvious inference would be that the parties agreed that the woman should acquire a share in the greatly increased value of the house produced by her money. But this depends on the court being able to infer an intention to alter the share in which the beneficial interest was previously held; the mere fact that one party has spent time and money on improving the property will not normally be sufficient to draw such an inference.’

Griffiths LJ, Lord Denning MR, Kerr LJ
[1982] 1 Ch 391, [1982] 3 All ER 162, [1982] 2 WLR 1052
Bailii
England and Wales
Citing:
CitedPettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .

Cited by:
CitedClarke v Harlowe ChD 12-Aug-2005
The parties lived together. They acquired between them several properties of which the last was declared to be held as joint tenants. The relationship broke down. The parties now sought a declaration as to the destination of the proceeds of sale, . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedJames v Thomas CA 23-Nov-2007
The claimant sought an interest in the property registered in the sole name of the respondent. The respondent had inherited a share in the property, and then bought out the interests of his siblings with support of a loan. The claimant had made no . .
CitedHopton v Miller ChD 31-Aug-2010
The parties had entered into partnership to open and run a restaurant, but without a formal agreement. They differed as to the values contributed by their respective efforts. After failures to disclose materials requested, the defendant we precluded . .

Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 16 November 2021; Ref: scu.240309

De Bruyne v De Bruyne and Others: CA 13 May 2010

W appealed against an order made in ancillary relief proceedings. H had had substantial interests in trusts and otherwise inherited from his family. W had had shares transferred to her as a bare trustee.

Thorpe LJ, Patten LJ, Sir Paul Kennedy
[2010] EWCA Civ 519, [2010] Fam Law 805, [2010] 2 FCR 251
Bailii
England and Wales

Family

Updated: 15 November 2021; Ref: scu.414948

Fabris v France: ECHR 28 Jun 2013

ECJ (Grand Chamber) States Parties are obliged to abide by the standards set in the Court’s case-law, even when they have not been involved in the particular disputes in respect of which the case-law was established.

Josep Casadevall, Pr
16574/08 – Grand Chamber Judgment, [2013] ECHR 609
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal SummaryFabris v France [GC] ECHR 7-Feb-2013
ECHR (Grand Chamber) Article 14
Discrimination
Difference in treatment of legitimate and illegitimate children for succession purposes: violation
Facts – The applicant was born in 1943 of a . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 15 November 2021; Ref: scu.512083

Boeckel And Gessner-Boeckel v Germany (dec.): ECHR 7 May 2013

ECHR Article 14
Discrimination
Refusal to register one of the mothers as a parent in the birth certificate of the other partner’s child although they were in a registered civil partnership: inadmissible
Facts – The applicants are two women who have been living together in a registered civil partnership since 2001. In 2008 the second applicant gave birth to a son. A birth certificate was issued naming her as the mother. The space provided in the form for the father’s name was left blank. In 2009 the applicants concluded an agreement whereby the child would be adopted by the first applicant. The district court granted the adoption order and declared that the child obtained the legal position of a child of both applicants. In the meantime the applicants requested the district court to rectify the child’s birth certificate by inserting the first applicant as the second parent. They submitted that the Civil Code, which stipulated that the father was the man who was married to the mother of the child at the time of birth, should be applied mutatis mutandis in cases where the mother lived in a registered civil partnership with another woman and argued that it was irrelevant whether the mother’s husband was indeed the biological father of the child born into the union. There was thus no reason to treat children born into a civil partnership any differently from children born in wedlock. The domestic courts rejected their request and subsequent appeal.
Law – Article 14 in conjunction with Article 8: In view of the fact that the first applicant had eventually obtained full legal status as the child’s second parent, the question arose whether the applicants could still claim to be victims of a violation of their Convention rights within the meaning of Article 34 of the Convention. However, having regard to the nature of the applicants’ complaint, the Court based its further examination on the assumption that the applicants could still claim to be victims of a violation of their Convention rights in view of the fact that the first applicant had had to undergo the adoption process in order to be recognised as the second parent. The applicants lived together in a registered civil partnership and were raising the child together. It followed that the relationship between the two applicants and the child amounted to ‘family life’ within the meaning of Article 8 of the Convention. Accordingly, Article 14 of the Convention in conjunction with Article 8 was applicable.
The first issue to be addressed was whether the applicants, who had been living together in a registered same-sex civil partnership when the second applicant had given birth to a child, were in a situation which was relevantly similar to that of a married different-sex couple in which the wife had given birth to a child. The Court took note of the domestic courts’ reasoning according to which section 1592 ss 1 of the Civil Code contained the – rebuttable – presumption that the man who was married to the child’s mother at the time of birth was the child’s biological father. This principle was not called into question by the fact that this legal presumption might not always reflect the true descent. The Court also noted that it was not confronted with a case concerning transgender or surrogate parenthood. Accordingly, in cases where one partner of a same-sex partnership gave birth to a child, it could be ruled out on biological grounds that the child descended from the other partner. The Court accepted that, under these circumstances, there was no factual foundation for a legal presumption that the child descended from the second partner. Having regard to the above considerations, it could not be said that the applicants had found themselves in a relevantly similar situation to a married husband and wife in respect of the entries made in the birth certificate at the time of birth. Consequently, there was no appearance of a violation of Article 14 of the Convention read in conjunction with Article 8.
Conclusion: inadmissible (manifestly ill-founded).

8017/11 – Legal Summary, [2013] ECHR 605
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Family

Updated: 15 November 2021; Ref: scu.512067

UL v BK: FD 24 Jun 2013

The court heard applications for the management of interim matters pending an ancillary relief application, and in particular the continuation of an asset freezing order and for the delivery of certain documents.

Mostyn J
[2013] EWHC 1735 (Fam)
Bailii

Family

Updated: 15 November 2021; Ref: scu.512058

In re A (A Child) (Vulnerable Witness): FD 17 Jun 2013

Pauffley J said: ‘Once more in these long running private law proceedings it is necessary to consider competing Convention rights so as to strike the right balance between, on the one hand, achieving justice and, on the other, protecting a vulnerable young woman from the potential for further and perhaps very considerable physical as well as psychological harm. The key question is as to whether, imminently, steps should be taken which could lead to the giving, in some form or another, of oral evidence by that vulnerable individual. ‘

Pauffley J
[2013] EWHC 1694 (Fam)
Bailii

Family, Litigation Practice

Updated: 15 November 2021; Ref: scu.512056

Garnaga v Ukraine: ECHR 16 May 2013

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Refusal to allow a change of patronymic: violation
Facts – In March 2004 the applicant, a Ukrainian national, lodged a request for a change of her patronymic to one derived from her stepfather’s forename. The Registration Office refused on the grounds that the Rules on Civil Status Registration provided that the patronymic of a physical person could only be changed in the event of a change of forename by his or her father. The applicant appealed without success. In parallel, in May 2004 she changed her original surname to the surname of her stepfather which was also the surname of her mother and half-brother.
Law – Article 8: The patronymic as a part of a personal name was traditionally derived from the name of the father of the person concerned. Ukrainian legislation recognised, however, that when individuals became mature enough to make their own decisions concerning their names they could keep or change the name given to them at birth. It was particularly noteworthy that a person could preserve his or her patronymic even when his or her father no longer held the forename from which it derived. The new Civil Code enacted on 1 January 2004 laid down that an individual could change the patronymic if his or her father had changed his forename. The domestic authorities had interpreted that provision as a clear indication that a change of name by the father was the only possible ground for changing a person’s patronymic. It was a matter of dispute between the parties whether the restriction of the applicant’s right was based on law or on an incorrect interpretation of the law. At the relevant time various provisions were in existence, which suggested that the issue of change of patronymic had not been formulated with sufficient clarity. Nevertheless it was undisputed that the right of the individual to keep his or her name was recognised in the Ukrainian legislation, as well as the right to change it. Indeed, the Ukrainian system of changing names appeared to be rather flexible and a person could change his or her name by following a special procedure with only minor restrictions which were applicable in very specific circumstances, mainly related to criminal-justice considerations. In this situation, the restrictions on changing the patronymic did not appear to have been properly and sufficiently reasoned by the domestic law. Furthermore, no justification for denying the applicant her right to decide this important aspect of her private and family life had been given by the domestic authorities and no such justification had otherwise been established. As the authorities had not balanced the relevant interests at stake they had not fulfilled their positive obligation of securing the applicant’s right to respect for her private life.
Conclusion: violation (unanimously).
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

20390/07 – Legal Summary, [2013] ECHR 579
Bailii
European Convention on Human Rights 8-1

Human Rights, Family, Administrative

Updated: 14 November 2021; Ref: scu.511074

Nadezda Riezniece v Zemkopibas Ministrija: ECJ 20 Jun 2013

ECJ Social policy – Directive 76/207/EEC – Equal treatment for male and female workers – Directive 96/34/EC – Framework Agreement on Parental Leave – Abolishment of officials’ posts due to national economic difficulties – Assessment of a female worker who took parental leave as compared to workers who remained in active service – Dismissal at the end of parental leave – Indirect discrimination

L Bay Larsen, P
C-7/12, [2013] EUECJ C-7/12
Bailii
Directive 76/207/EEC, Directive 96/34/EC
European

Family, Discrimination, Employment

Updated: 14 November 2021; Ref: scu.511008

Kurkowski v Poland: ECHR 9 Apr 2013

Kurkowski_polandECHR2013

ECHR Article 8-1
Respect for family life
Unjustified physical separation of detainee from visiting family members: violation
Facts – The applicant was detained on remand between December 2004 and October 2006. During that period, on one occasion the authorities rejected his request to have an additional family visit without justifying their decision. On three further occasions the applicant’s contact with his family was restricted and he was separated from them by a Perspex partition.
Law – Article 8: As regards the refusal of the applicant’s request for a family visit, the Court noted that the relevant authority had absolute discretion in granting permission for family visits in prison. The applicable law provided no details as regards the conditions for granting permission or the possibility of appealing against a decision refusing permission. Consequently, the refusal of permission for the family visit had not been in accordance with the law.
As regards the physical separation from his visiting family members by the Perspex partition, the Court accepted that such a measure might in certain circumstances be compatible with Article 8. However, in the applicant’s case the Government had offered no explanation why such a measure had been necessary on three specific occasions but had not been imposed during any of the other twenty-nine visits. Moreover, no arguments had been adduced regarding the necessity or legitimacy of the aim pursued by the measure. The lack of a coherent pattern of application of the impugned measure led the Court to conclude that it had been applied in an arbitrary and random manner.
Conclusion: violation (unanimously).
The Court further concluded that there had been no violation of Article 3 (prison overcrowding) or of Article 5 ss 3 of the Convention (length of pre-trial detention).
Article 41: EUR 1,500 in respect of non-pecuniary damage.

36228/06 – Legal Summary, [2013] ECHR 475
Bailii
European Convention on Human Rights

Human Rights, Prisons, Family

Updated: 12 November 2021; Ref: scu.510782

Hall v Hall: CA 18 Mar 2008

The wife had not appeared at the ancillary relief application hearing. The court transferred all the assets to the husband. After some further delay, she appealed.
Held: The district judge had himself acknowledged that the order was impermissible. The delay had led to the disappearance of further documents, but the court should not have made an order it knew to be wrong. He should not misuse his power to bring a recalcitrant party to court by making an order he knew to be unfair.

Lord Justice Thorpe and Lord Justice Wall
Times 30-Apr-2008, [2008] EWCA Civ 350
Bailii
England and Wales

Family

Updated: 12 November 2021; Ref: scu.269703

Hall v Hall: SCS 22 Mar 1895

(Court of Session Outer House) An English man married a Scots woman in February 1889. The marriage was celebrated in Scotland, and the parties lived together in Scotland for about eighteen months. The husband then deserted his wife, and left the country. In 1895 the wife brought an action for divorce on the ground of desertion. She maintained that there was a matrimonial domicile in Scotland sufficient to found jurisdiction. The action was undefended. Lord Kyllachy granted decree of divorce.

[1895] SLR 32 – 468
Bailii
Scotland

Family

Updated: 12 November 2021; Ref: scu.612829