Category: Family

Davis v Davis: 1950

Citations:

[1950] P 125

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 18 May 2022; Ref: scu.268835

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:

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

Cited by:

Cited – Nilsen, 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 . .
Cited – Nilsen 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. . .
Cited – Dickson 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 . .
Cited – Smithkline 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 . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – O’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:

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

Family, Health

Updated: 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 from – P 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

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:

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

Family

Updated: 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:

Approved – 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 . .
Cited – Stead v Stead 1985
The court declined to award a widow a large capital sum from her husband’s estate. . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .

Cited by:

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

Cited – Walker 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 . .
Cited – 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 . .

Cited by:

Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
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:

Cited – Evans 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

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:

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

Family

Updated: 16 May 2022; Ref: scu.197919

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:

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

Family, Commonwealth

Updated: 16 May 2022; Ref: scu.197920

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:

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

Family, 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:

Cited – Glasgow 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:

Cited – V 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:

Cited – Bala 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:

Cited – Bala 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

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:

Cited – Thomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
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:

Cited – Thomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
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 from – Agyarko 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. . .
Cited – Huang 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 . .
Cited – Chikwamba 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 . .
Cited – Ruiz 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 . .
Cited – Munir 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 . .
Cited – Jeunesse 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 . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Regina 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 . .
Cited – Tuquabo-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 . .
Cited – Sezen 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 . .
Cited – EB (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 . .
Cited – MF (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 . .
Cited – Hesham 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 . .
Cited – Dereci 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 . .
Cited – Secretary 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 . .
Cited – Alokpa 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 . .
Cited – Iida 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:

Cited – HC, 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 . .
Cited – Rhuppiah 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 . .
Cited – Patel 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 . .
Cited – Dereci 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:

Cited – Patel 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:

Cited – McGraddie 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:

Cited – Wyatt 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 . .
Cited – Currey 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 . .
Cited – Vince 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:

Cited – Lazarus 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:

Cited – Rapisarda 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:

Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
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:

Cited – Singh 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:

Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
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:

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

Cited by:

Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Applied – White 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 . .
Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Hildebrand – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – T 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 . .
Cited – J v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
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:

Cited – Cossey 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 . .
Cited – Rees 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 . .
Cited – Corbett 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:

Cited – Bellinger 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 . .
Cited – Stott (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 . .
Cited – A 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 . .
Cited – Grant 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 . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Lists of cited by and citing cases may be incomplete.

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:

Considered – Dart 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:

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

Family

Updated: 15 May 2022; Ref: scu.79458

A v A (Maintenance Pending Suit: Provision for Legal Fees): FD 15 Nov 2000

An application for maintenance pending suit could properly be made, to include payment on account of the legal costs of pursuing the action. Such legal expense were of a recurring, and income type nature. Maintenance was not confined to the day to day living expenses of an applicant. In the absence of a statutory definition, there was neither any case law definition which would preclude such expenses. Without such an order, the impecunious wife would be unable to progress in the single issue which dominated her life.

Citations:

Times 15-Nov-2000, Gazette 16-Nov-2000, [2001] 1 FLR 377

Statutes:

Matrimonial Causes Act 1973 22

Cited by:

Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 15 May 2022; Ref: scu.77586

M v B, A and S (by the Official Solicitor): 2005

Citations:

[2006] 1 FLR 117, [2005] EWHC 1681 (Fam)

Cited by:

Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Lists of cited by and citing cases may be incomplete.

Health, Family

Updated: 15 May 2022; Ref: scu.269960

Wahl v Wahl: 1932

A person’s citizenship does not necessarily determine his domicile.

Citations:

[1932] 147 LT 382

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 15 May 2022; Ref: scu.268047

Krenge v Krenge: 1999

The power in an English court to stay family proceedings here in favour of a foreign jurisdiction exists independently of any statute.

Citations:

[1999] 1 FLR 969

Cited by:

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

Family, Jurisdiction

Updated: 14 May 2022; Ref: scu.251425

Khreino v Khreino: CA 2000

The court heard a renewed application for leave to appeal. A single Lord Justice had directed that any oral renewal of the application for permission should be heard by a court of two, of which he was to be a member. Objection was taken to him being a member of the court, having already given his opnion on the papers.
Held: The renewed application could by heard by a court including the judge who had rejected the original request on the papers.
Thorpe LJ: ‘The manifest intention of the practice direction is to enable applications for permission to be dealt with by a single judge of the court on paper in much the same way as the application for permission is dealt with by the trial judge on paper. It is important that the single Lord Justice should have a profound understanding of the case and of the arguments advanced in support of the application for permission. To ensure that he receives such papers as would be conventionally before the court at an oral hearing under the former practice he also now has the advantage of a full skeleton argument supporting the application for permission. Therefore his refusal on paper is a considered and reasoned refusal after full consideration of all relevant material, including the applicant’s detailed submissions. In the majority of cases it is intended to be the end of the application for permission unless the single Lord Justice has fallen into manifest error or unless there has been some unexpected subsequent development. So it seems to me that the right to require a subsequent oral hearing has a real purpose and function in the minority of cases. Of course the importance that we attach to oral argument has always been a distinguishing characteristic of our forensic system. But ordinarily there must be more than that to justify renewal. Perhaps on further consideration the advocate has perceived a submission not previously advanced. There might also be circumstances in which subsequent to the signing of the provisional refusal there was some unexpected development in relation to the appeal or some development of the relevant precedent law.’
Mummery LJ: ‘The course taken could not possibly be regarded as a breach of Article 6 of the European Convention on Human Rights. The first sentence of that Article provides:
‘In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
The procedure laid down is that applications for permission to appeal are made ex parte and they are considered on paper. The rules require that, in support of the application for permission to appeal, the party seeking to appeal will submit a skeleton argument. That sets out all the points which he would wish to pursue on the appeal. The single Lord Justice who considers it is able to form a view whether or not the appeal on those grounds has a real prospect of success. There has therefore been a fair hearing, within a reasonable time of an ex parte application. That hearing was before an independent and impartial tribunal. An oral hearing was requested. This oral hearing is in public. There is no breach of any common law principle of procedural fairness which, like Article 6, requires that a hearing takes place before an unbiased tribunal or court. There is no requirement that every application shall receive an oral hearing. It is appropriate that an ex parte application for permission to appeal should be considered initially as a paper application. Mr Turner [counsel making the application] says that if the Lord Justice who has indicated that he is minded to refuse and gives reasons for it sits on the oral hearing that renders the oral hearing pointless, because it is taking place before a judge who has already made up his mind. That is a misunderstanding of the procedure. The Lord Justice who has indicated that he is minded to refuse leave to appeal is obliged to consider the matter at the oral hearing in the light of any further points. The oral hearing is not an appeal from an earlier decision. These points may range from updating the court on matters which have occurred since the application was considered in July; drawing the court’s attention to new authorities which had not been discovered at the time of submitting the skeleton argument or had not been decided and reported at that time. The oral hearing also provides an occasion for dealing with errors and omissions in the reasons stated in the minded to refuse letter. The oral hearing is not pointless.
I agree with my Lord as to the circumstances in which an application for an oral hearing is conducted after the matter has been fully considered on a paper application. Mr Turner’s objection to the propriety or validity of the constitution of this court should be rejected.’

Judges:

Thorpe LJ, Mummery LJ

Citations:

[2000] 1 FCR 75

Jurisdiction:

England and Wales

Cited by:

Cited – Rezvi v Air Canada CA 14-Feb-2002
The claimant renewed her application for leave to appeal, but had first asked the judge to recuse himself for apparent bias having already expressd an opinion on the papers submitted.
Held: Reconsideration by the same judge who had refused . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Human Rights

Updated: 14 May 2022; Ref: scu.248330

Shackell v United Kingdom: ECHR 27 Apr 2000

The court held inadmissible a claim by an unmarried woman to widow’s benefit. The parties having chosen not to marry, they could not complain of not having the legal benefits of a marriage. The promotion of marriage by way of limited benefits for surviving spouses could not be said to exceed the margin of appreciation afforded to the Government: ‘The court accepts that there may well not be an increased social acceptance of stable personal relationships outside the traditional notion of marriage. However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter it.’

Citations:

45851/99

Jurisdiction:

Human Rights

Cited by:

Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Benefits

Updated: 14 May 2022; Ref: scu.244727

M v M: 2003

The court considered how to treat periodical payments in a settlement of an ancillary relief claim where a clean break was not possible and where the husband had a substantial income.

Judges:

Bennett J

Citations:

[2003] EWHC (Fam) 2410

Cited by:

Cited – M v M (Financial Relief: Substantial Earning Capacity) FD 29-Mar-2004
The parties had been married for 12 years, there were three children, one with special needs, and assets of over 12 million pounds. The court considered the application for ancillary relief. It was substantially agreed that the wife should receive . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 14 May 2022; Ref: scu.244874

Harman v Glencross: 1986

On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was little point in this since any transfer in her favour would be void against the husband’s trustee in bankruptcy under section 42.
Held: The decision in In Re Holliday was very much against the run of recent authorities. Balcombe LJ rejected the creitor’s suggestion saying: ‘the wife gave up her claim for periodical payments, and it seems to me that this constituted valuable consideration on her part which would preclude a trustee in bankruptcy of the husband from maintaining that the transfer of property order was void as against him – see Re Abbott [1983] Ch 45.’

Judges:

Balcombe LJ

Citations:

[1986] Fam 81, [1986] 2 FLR 241

Statutes:

Bankruptcy Act 1914 42

Citing:

Cited – In re Holliday CA 1981
A property adjustment order cannot be made against a bankrupt former spouse because the property of the bankrupt vests in the trustee in bankruptcy against whom an order under section 24 cannot be made. It was highly unlikely that postponement of . .
Cited – In re Abbott ChD 1983
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or . .

Cited by:

Cited – Donohoe v Ingram ChD 20-Jan-2006
The appellant had lived with the bankrupt for several years, and sought an order delayng sale of the house they had lived in until their children had grown up. She said the circumstances were exceptional.
Held: The fact that the delay might . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 14 May 2022; Ref: scu.238750

Atorney-General v Yule and Mercantile Bank of India: 1931

The court considered the shifting burden of proof when the question arose of an intention to change a domicile of origin.

Citations:

(1931) 145 LT 9

Cited by:

Cited – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
Cited – Holliday and Another v Musa and Others CA 30-Mar-2010
The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 14 May 2022; Ref: scu.238725

Zakay v Zakay: 1998

In financial proceedings in England following divorce the wife alleged – and the husband denied – that he was the beneficial owner of shares held by a Gibraltarian trust company. The English court had ordered the issue of a letter of request to the Gibraltarian court that an officer of the trust company be required both to give oral evidence identifying the beneficial owner of the shares and to produce all documents in relation to such ownership. The officer sought to set aside an order in Gibraltar which had in both respects given effect to the request. The chief justice had to apply provisions of Gibraltar’s Evidence Ordinance
Held: He refused to set aside the order: ‘ . . the documents requested for production in this case are narrowly confined to the single issue they are aimed to support. The documents are more than likely in the possession of the applicant and are readily identifiable. Of course, it is impossible for the petitioner to know the specific identity of individual documents. But the applicant is being asked a specific question and is being asked to produce the documents to prove his answers. That is not a fishing expedition in the sense of casting a line in the hope that something will be caught: the fish has been identified and the court is endeavouring to spear it.’

Judges:

Schofield CJ

Citations:

[1998] 3 FCR 35

Cited by:

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

Commonwealth, Family, Litigation Practice

Updated: 14 May 2022; Ref: scu.236600

Gascoigne v Gascoigne: 1918

When a husband put a house in his wife’s name so as to avoid it being taken by his creditors, the house belonged to the wife. The husband could not be heard to say that it belonged to him because he could not be allowed to take advantage of his own dishonesty.

Citations:

[1918] 1 KB 223

Jurisdiction:

England and Wales

Cited by:

Cited – Tinker v Tinker CA 1970
The husband bought a business in Cornwall and a house for his family. At first he intended to buy the house in his own name, but was advised that if the venture failed, the house could be taken by his creditors as part of his business assets. It was . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 14 May 2022; Ref: scu.236574

McMinn v McMinn: 2003

A section 27 claim cannot be pursued by a surviving spouse. Black J said: ‘It is clearly established that until an ancillary relief order has been made, an ancillary relief claim is not a cause of action. This appears to be because of the discretionary nature of ancillary relief, someone seeking ancillary relief may establish the fact of marriage, the grant of a decree nisi and a number of factors which would be relevant to the court’s decision as to what if any ancillary relief orders should be granted but is reliant for relief upon an exercise of the court’s discretionary powers. Until those discretionary powers have been exercised he has no cause of action’. A claim for ancillary relief does not constitute a cause of action for the purposes of section 1(1) of the 1934 Act.

Judges:

Black J

Citations:

[2003] 2 FLR 823

Statutes:

Matrimonial Causes Act 1973 27, Law Reform (Miscellaneous Provisions) Act 1934 1(1)

Cited by:

Cited – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 14 May 2022; Ref: scu.235894

Attar v Attar (No 2): 1985

Citations:

[1985] FLR 653

Cited by:

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

Family

Updated: 14 May 2022; Ref: scu.235285

Brett v Brett: 1969

Ancillary relief where ‘this marriage only lasted a very short time’

Citations:

[1969] 1 WLR 487

Cited by:

Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 14 May 2022; Ref: scu.235282

Harwood v Harwood: CA 1991

The court rejected the argument that declaring in a transfer of land that the survivor ‘can give a valid receipt for capital money arising on a disposition of the land’ in itself amounts to an express declaration of a beneficial joint tenancy.

Citations:

[1991] 1 FLR 274

Jurisdiction:

England and Wales

Cited by:

Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 13 May 2022; Ref: scu.230913

Re M (Contact: Family Assistance: McKenzie Friend): CA 1999

A father appealed a refual of consent for him to be allowed assistance from a McKenzie Friend.
Held: He should have been allowed assistance on the contact and other applications. It was ‘a matter of regret’ that the father had been denied the assistance of a McKenzie friend and that no apparent explanation for the denial had been put forward. Ward LJ: ‘The judge has the father appearing in person. There is a ground of appeal before us complaining of having been denied a McKenzie friend. It emerged from the submissions . . . that the refusal occurred at an earlier hearing and may or may not have been influenced in part by the personality of that particular McKenzie friend. The father simply does not know. He feels the burning injustice of having been besieged with paper and coping with the difficulty of the management of that paper and the conduct of the litigation. I have considerable sympathy with him . It is always difficult, and the more emotive and important the issue to the litigant, often the more useful it is to have the restraining influence of a McKenzie friend. The value was demonstrated in this court when we asked for assistance as to a certain passage of evidence to which the father had made reference. That was left to the gentleman here, who was not the gentleman against whom any possible objection could have been taken in July 1997. The answer was forthcoming. It showed the virtue of how the McKenzie friend is to operate. It is therefore a matter of regret that the father was denied that assistance. The judge would not have had referred to him a decision of this court given by me in Re H (Chambers Proceedings: McKenzie Friend) (1997… 2 FLR 423. Provided that the McKenzie friend acts with restraint, he is often a useful assistant to the conduct of litigation’.’

Judges:

Ward LJ, Roch LJ

Citations:

[1999] 1 FLR 75

Jurisdiction:

England and Wales

Citing:

Cited – In Re H (A Minor) (Chambers Proceedings: Mckenzie Friend) CA 6-May-1997
A father sought ex parte, permission to appeal against orders in the county court. The first had refused to allow him to have a McKenzie friend in an application for contact to his daughter. The Recorder had taken the view that because the . .

Cited by:

Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 13 May 2022; Ref: scu.227952

Lilley v Lilley: 1960

A wife’s agency of necessity of her husband was not lost if they were obliged to live apart for no fault of hers.

Citations:

[1960] P 169

Cited by:

Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.228607

Jablonowski v Jablonowski: 1972

(Ontario High Court) The petitioner had met both the residence and animus requirements despite having entered Canada illegally.

Judges:

Lerner J

Citations:

(1972) 28 DLR (3d) 440

Jurisdiction:

Canada

Citing:

Not persuasive – Solomon v Solomon 1912
(Australia – New South Wales) The fact that a party’s residence in New South Wales was unlawful, prevented the acquisition of a domicile of choice there. ‘It is a curious proposition that a Court of Justice in New South Wales should hold that a man . .
Not persuasive – Smith v Smith 1961
(Supreme Court of the Federation of Rhodesia and Nyasaland) The husband, a fugitive from justice in England, had entered Southern Rhodesia on a false passport and his entry and residence had at all times been unlawful under the Immigration Act. The . .

Cited by:

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

Family

Updated: 13 May 2022; Ref: scu.228191

Cruh v Cruh: 1945

A man of Austrian or German origin had been recommended for deportation following a conviction for conspiracy. The Home Secretary intended to deport him as soon as it became practicable to do so.
Held: Until the recommendation was actually effected, the domicile of choice remained. Once that happens, however, the domicile is lost. Even though a party’s immigration status was such that he might be ordered to be removed, he could nevertheless acquire a domicile of choice in this country.

Judges:

Denning J

Citations:

[1945] 2 All ER 545

Jurisdiction:

England and Wales

Cited by:

Applied – Szechter (orse Karsov) v Szechter 1971
The parties, who had been given leave to stay in the United Kingdom for only a limited period, had acquired a domicile of choice in England by residing here with the intention of making this country their permanent home. It was immaterial that their . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.228182

Boldrini v Boldrini and Martini: CA 1932

An alien may acquire a domicile of choice in this country even though he might be required to leave at any time by executive action with no right of appeal.
Lawrence LJ said: ‘What had to be shown is that when the petitioner presented his petition he was residing in England with a fixed intention of making England his home. Such an intention may be proved notwithstanding the existence of statutory regulations imposing certain restrictions upon aliens which they have to comply with so long as they remain in this country; an alien may choose to live here permanently and subject himself to those restrictions. In my opinion the provisions of the Aliens’ Restriction Act, 1914, and the Aliens’ Order, 1920, did not preclude the petitioner from acquiring a domicile of choice in England.’

Judges:

Lawrence LJ

Citations:

[1932] P 9

Jurisdiction:

England and Wales

Cited by:

Cited – Szechter (orse Karsov) v Szechter 1971
The parties, who had been given leave to stay in the United Kingdom for only a limited period, had acquired a domicile of choice in England by residing here with the intention of making this country their permanent home. It was immaterial that their . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.228181

Practice Note (Matrimonial Cause: Injunction): FD 1978

‘The President is greatly concerned by the increasing number of applications being made ex parte in the Royal Courts of Justice for injunctions, which could and should have been made (if at all) on two clear days’ notice to the other side, as required by the rules. An ex parte application should not be made, or granted, unless there is real immediate danger of serious injury or irreparable damage.’

Citations:

[1978] 1 WLR 92

Jurisdiction:

England and Wales

Cited by:

Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.223627

West v West: 1977

Citations:

[1978] Fam 1

Cited by:

Cited – Robinson v Robinson (Practice Note) CA 2-Jan-1982
The husband was a serving soldier who had had various postings abroad. The wife returned home, where she discovered that she was pregnant. He followed her home, but she left him, and applied for maintenance. The justices found that she had deserted . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.223619

G v G (Ouster: Ex parte Application): CA 1990

An ex parte order was made requiring a wife to vacate the family home immediately and was served on her when she was bringing two of the children of the family home from school.
Held: Lord Donaldson MR: there was no reason why the judge could not have made a non-molestation order in the widest terms which could have been served on the wife at the same time as the inter partes application for an ouster injunction. Butler-Sloss LJ did not consider that the affidavit evidence showed a situation sufficiently grave to come within ‘immediate danger of serious injury or irreparable damage’.

Judges:

Lord Donaldson MR, Butler-Sloss LJ

Citations:

[1990] Family Law 254

Jurisdiction:

England and Wales

Cited by:

Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.223661

Re Callaghan, deceased: 1984

An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of andpound;15,000 to enable him and his wife to avoid the burden of taking on a mortgage of andpound;13,000 on the purchase of their council house at a most advantageous price. ‘I have to look at the circumstances of this particular case, and, having done so, I am left in no doubt whatever that the effect of the deceased’s intestacy is such that it is unreasonable inasmuch as it makes no financial provision for the plaintiff’s needs.’ and he made that provision by way of a lump sum: ‘That is the order which the plaintiff seeks, because he wishes to buy this house without the burden of a mortgage weighing upon him for the remainder of his working years. In my judgment that is a reasonable requirement for his maintenance.’ The claimant had demonstrated a need: ‘the decision to buy has been a difficult one for the plaintiff to make; without any capital behind him, he has been reluctant to commit himself to this expense. It will mean that he will have to service the mortgage for the remainder of his working life. But he has now decided to buy, regardless of the outcome of this application.’

Judges:

Booth J

Citations:

[1985] Fam 1, [1984] 3 All ER 790

Statutes:

Inheritance (Provision for Family and dependants) Act 1975

Cited by:

Cited – Harlow v National Westminster Bank Plc and Others; in re Jennings Dec CA 13-Dec-1993
The adult non-dependent son of the deceased claimed provision from his father’s estate. He had been separated from his father since being a young child, and had received almost nothing. He was a married adult son living with his family in . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 13 May 2022; Ref: scu.214191

Davis v Johnson: CA 1978

The court had to consider whether the Act protected cohabitees as well as wives. In doing so the court looked at whether it could look to parliamentary debates.
Held: Lord Denning MR said: ‘Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view . . It is obvious that there is nothing to prevent a judge looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position. The statements made in committee disposed completely of counsel for the respondent’s argument before us.’ but (Cumming-Bruce LJ) ‘I am not alarmed by the criticism that I am a purist who prefers to shut his eyes to the guiding light shining in the reports of parliamentary debates in Hansard.’

Judges:

Lord Denning MR, Cumming-Bruce LJ

Citations:

[1978] 1 All ER 841

Statutes:

Domestic Violence and Matrimonial Proceedings Act 1976

Jurisdiction:

England and Wales

Cited by:

Appeal from – Davis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
Lists of cited by and citing cases may be incomplete.

Family, Constitutional

Updated: 13 May 2022; Ref: scu.200596

Springette 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 estimated market value because Miss S had been a tenant of the local authority elsewhere for 11 years or more. The property was purchased with the assistance of a building society mortgage – for the repayment of which they were both liable as covenantors. Treating the mortgage monies as provided in equal shares – and giving Miss Springette credit for the whole of the tenant’s discount – her contribution to the purchase was 75% or thereabouts. They agreed that they were each intended to have some beneficial interest in the property; and it was found as a fact by the trial judge that they never had any discussion at all, at or before the time of the purchase, about what their respective interests were to be.
Held: The property was owned in equal shares; not on the basis of his finding that, although uncommunicated to each other, that was, in fact, the intention of each at the time, but because: ‘It is my judgment that there is sufficient evidence on the facts of inference of common intention or arrangement between the parties that the property should be owned in equal shares’.
Lord Justice Dillon: ‘In Walker v Hall I expressed the view at p 134C that it was not open to this court, in the absence of specific evidence of the parties’ intentions, to hold that the property there in question belonged beneficially to the parties in equal shares, notwithstanding their unequal contributions to the purchase price, simply because it was bought to be their family home and they intended – or possibly one should say ‘hoped’ – that their relationship should last for life. The effect is that, in the absence of an express declaration of the beneficial interests, the court will hold that the joint purchasers hold the property on a resulting trust for themselves in the proportions in which they contributed directly or indirectly to the purchase price, unless there is sufficient specific evidence of their common intention that they should be entitled in other proportions – eg in equal shares notwithstanding unequal contributions – to rebut the presumption of resulting trust.’ and ‘The common intention must be founded on evidence such as would support a finding that there is an implied or constructive trust for the parties in proportions to the purchase price. The court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the street, on a general overview of the case, might regard as fair.’ and ‘But the common intention of the parties must, in my judgment, mean a shared intention communicated between them. It cannot mean an intention which each happened to have in his or her own mind but had never communicated to the other.’ and ‘Since, therefore, it is clear in the present case that there never was any discussion between the parties about what their respective beneficial interests were to be, they cannot, in my judgment, have had in any relevant sense any common intention as to the beneficial ownership of the property. . . . The presumption of resulting trust is not displaced.’
Lord Justice Steyn: ‘Given that no actual common intention to share the property in equal beneficial shares was established, one is driven back to the equitable principle that the shares are to be presumed to be in proportion to the contributions.’

Judges:

Lord Justice Dillon, Lord Justice Steyn, Sir Christopher Slade

Citations:

[1992] 2 FLR 388

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Grant 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 . .

Cited by:

Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Huntingford v Hobbs CA 1-Mar-1992
The parties lived together in a property transferred to the woman after her divorce. That house was sold and the defendant contributed the capital. There was a joint mortgage, but the plaintiff alone had an income from which to make payments. The . .
Explained – Evans v Hayward CA 1-Jun-1992
The property had been bought in joint names at a discounted price under a ‘right to buy’ conferred by the Housing Act 1985; but where the discount was substantially attributable to the plaintiff’s former occupation as local authority tenant. The . .
Cited – Saville v Goodall CA 1993
The court considered the requirements to establish that property purchased in one name but for an unmarried couple were to be held on trust: ‘[Counsel] referred us to a recent decision of this court in Springette v Defoe [1992] 2 FLR 388, which . .
Cited – Midland Bank v Cooke and Another CA 13-Jul-1995
Equal equitable interest inferrable without proof
The bank sought to enforce a charge given by the husband to secure a business loan. The property was purchased from the husband’s and his family’s resources and the loan, and was in his name. There had been no discussion or agreement between husband . .
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Cited – Richards v Wood CA 27-Feb-2014
The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
Held: ‘unless there is a secure tenancy the statutory right to buy . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 13 May 2022; Ref: scu.199514

G v G (Maintenance Pending Suit: Costs): FD 2003

The court considered the argument that a wife’s maintenance pending suit should be limited to her reasonable needs: ‘I do not accept that argument for the following reasons. The purpose of the 1970 Act was to change statutory provisions that were outdated and inadequate and to make a new start. Although the word ‘maintenance’ was used in both SS1 and 6 of 1970 Act (now SS22 and 27 of the MCA 1973) there are changes between section 6 of the 1970 Act (section 27 of the MCA 1973 and its predecessors and the word ‘maintenance’ is not used in the predecessors to section 1 of the 1970 Act (section 22 of the MCA 1973). The subsequent amendments to section 27 of the MCA 1973 confirm or clarify that ‘maintenance’ was not used by Parliament to refer to the old common law duty of a husband to maintain his wife. The report (read alone and together with the Working Paper) supports the conclusion that ‘maintenance’ was not used by Parliament to refer to the old common law duty of a husband to maintain his wife.

Judges:

Charles J

Citations:

(2003) 2 FCR 339

Statutes:

Matrimonial Causes Act 1973 25, Matrimonial Proceedings and Property Act 1970

Cited by:

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

Family, Costs

Updated: 13 May 2022; Ref: scu.198587

N v N (Financial Provision: Sale of Company): FD 2001

The nature of the family assets may be taken into account when considering how they are to be divided in ancillary relief proceedings on divorce, where these are businesses which will be crippled or lose much of their value, if disposed of prematurely in order to fund an equal division. Coleridge J said: ‘In the current climate now, where the court is engaged more in dividing up assets than in calculating a party’s reasonable needs, there would be logic in trying to calculate and include a figure for any asset which generates a secure income. At its most extreme that might include the valuation of a party’s earning capacity. However, in my judgment, the evaluation of such an ephemeral item would be pregnant with problems and lead to endless debate incapable of fair resolution. It would be even more problematic where there was ongoing provision for children.’
and ‘Mr Raynor also urges me to take into account the huge increase in turnover of the X group since the separation. He says that the real increase in the value of X has only occurred since that date and so in relation to any share the wife notionally would have in that asset it should be discounted. He says from a half to a third to reflect the fact that she made no contribution to it after separation.
Again, I think there is intrinsically some merit in this argument in this particular case but it needs to be approached with very great caution. There is no doubt that a glance at the figures reveals a very significant increase in the turnover of the businesses from 1997-2001 and this reflects directly on the value of the companies. Indeed, in relation to Z as it has been pointed out, it was not even in existence at the time of the separation. There is indeed a four-fold increase in turnover overall since the date of the separation and that is attributable to more than just natural price inflation.
Mr Mostyn urges me to reject this argument completely because, as he rightly points out, traditionally these applications have always been approached on the basis of the values existing at the date when the hearing takes place.
I am quite sure that even now in most cases that is the correct date when valuation should be applied. But I think the court must have an eye to the valuation at the date of separation where there has been a very significant change accounted for by more than just inflation or deflation; natural inflationary pressures on particular assets, for instance, the value of a house moving up or down in the housing market.
In this case the increase in value is attributable to extra investment of time, effort and money by the husband since separation and I do take into account the exceptionally steep increase in the turnover figures since the date of the separation. However, having done so it must be put in the context of the wife’s continuing contribution too which similarly did not cease at the date of separation. She too has continued to play the valuable part that she had done throughout the marriage, in looking after the home and the children.
Mr Mostyn asked the hypothetical question: what would the position be if the value had similarly declined significantly since the date of the separation? In my judgment that too, in an appropriate case, could be a factor to be taken into account, particularly perhaps where the decline was as a result of action or inaction by the paying party. But that is not the situation in this case and I am not making a statement of general application or anything of that kind.’

Judges:

Coleridge J

Citations:

[2001] 2 FLR 69

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Cited by:

Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Rossi v Rossi FD 26-Jun-2006
W sought to challenge transactions entered into by H anticipating ancillary relief proceedings on their divorce. Nicholas Mostyn QC J said: ‘While of course no rigid rule can be expressed for the infinite variety of facts that arise in ancillary . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.198591

Re Bunning, deceased; Bunning v Salmon: ChD 1984

Vinelott J calculated that the maximum award which the widow would have received in matrimonial proceedings to be 36,000 pounds. Yet on an application under the 1975 Act he awarded her 60,000 pounds.

Judges:

Vinelott J

Citations:

[1984] 1 Ch 480, [1984] 3 WLR 265, [1984] 3 All ER 1

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Cited by:

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

Wills and Probate, Family

Updated: 13 May 2022; Ref: scu.196904

Hammond v Mitchell: 1992

The court described the process of deducing what were the intentions of the parties when purchasing property: ‘The primary emphasis accorded by the law in cases of this kind to express discussions between the parties (‘however imperfectly remembered and however imprecise their terms’) means that the tenderest exchanges of a common law courtship may assume an unforeseen significance many years later when they are brought under equity’s microscope and subjected to an analysis under which many thousands of pounds of value may be liable to turn on fine questions as to whether the relevant words were spoken in earnest or in dalliance and with or without representational intent.’

Judges:

Waite J

Citations:

[1992] 2 All ER 109, [1991] 1 WLR 1127

Jurisdiction:

England and Wales

Family, Trusts

Updated: 12 May 2022; Ref: scu.189962

Sutton v Sutton: 1984

The husband and his wife agreed that in consideration, inter alia, of the wife consenting to the husband divorcing her on the ground of two years’ separation and consent, he would transfer the matrimonial home to her, and she would take over responsibility for the mortgage. A decree absolute was made on the husband’s petition but he then refused to carry out his part of the bargain.
Held: If the agreement was enforceable as a contract, it would leave nothing for the court to do under sections 23 and 24 of the 1973 Act which give the court power to order maintenance and make property adjustments because the agreement pre-judged and foreclosed all financial questions. The wife’s consent to the divorce as agreed was an act of part performance, being an act referable to the contract. ‘her consent to the petition was in itself, in the circumstances, tied to the contract about the house’. The husband ‘stood by and let her perform that part of her bargain irretrievably, and that raised an equity’ in her favour.

Judges:

John Mowbray QC

Citations:

[1984] Ch 184

Statutes:

Matrimonial Causes Act 1973 1(2)(d) 23 24

Jurisdiction:

England and Wales

Citing:

Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Hyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .

Cited by:

Cited – Commerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Lists of cited by and citing cases may be incomplete.

Family, Equity

Updated: 12 May 2022; Ref: scu.188271

Practice Note: Declaratory proceedings: Medical and welfare decisions for adults who lack capacity: 2001

Citations:

[2001] 2 FLR 158

Jurisdiction:

England and Wales

Cited by:

Cited – Practice Note (Family Division: Incapacitated adults) FD 2-Jan-2002
Proceedings which invoked the jurisdiction of the High Court to grant declarations as to the best interests of incapacitated adults were civil proceedings to which the Civil Procedure Rules applied. Although not assigned to any division, having . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 May 2022; Ref: scu.182849

Practice Direction (Duties and Functions of the Official Solicitor): 1991

Citations:

[1991] FLR 471

Cited by:

Cited – In Re M (A Minor) (Official Solicitor: Role) CA 8-Jul-1998
A judge had no power to extend or restrict powers and duties of the official solicitor and or local authorities exercising statutory functions. The Official Solicitor did not act as an agent of the court. A judge ordering the appointment of a . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 12 May 2022; Ref: scu.182854

Burnett v George: CA 1992

Citations:

[1992] 1 FLR 525

Jurisdiction:

England and Wales

Cited by:

Cited – Wong v Parkside Health NHS Trust and Another CA 16-Nov-2001
The claimant had sued her former employer for post-traumatic stress resulting from alleged harassment at her place of work. The claimant appealed against an order refusing damages. The court had held that outside the 1997 Act which was not in force . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 May 2022; Ref: scu.182089

Pidduck v Molloy: CA 1992

The Act did not allow for a non-molestation order to be made once an unmarried couple had ceased to cohabit.

Citations:

[1992] 2 FLR 202 CA, Times 09-Mar-1992

Statutes:

Domestic Violence and Matrimonial Proceedings Act 1976

Jurisdiction:

England and Wales

Cited by:

Cited – Wong v Parkside Health NHS Trust and Another CA 16-Nov-2001
The claimant had sued her former employer for post-traumatic stress resulting from alleged harassment at her place of work. The claimant appealed against an order refusing damages. The court had held that outside the 1997 Act which was not in force . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 May 2022; Ref: scu.182092

Regina v Immigration Appeal Tribunal Ex parte Tohur Ali: CA 18 Dec 1987

The Court considered rule 50 under which ‘parent’ was defined as including – ‘an adoptive parent, where there has been a genuine transfer of parental responsibility on the ground of the original parents’ inability to care for the child . . ‘
Held: (a majority) This expression was not confined to adoption under a ‘legally recognizable adoptive process’.

Judges:

May, Balcombe, Woolf LJJ

Citations:

[1988] 2 FLR 523, [1988] Imm AR 237, [1988] Fam Law 289

Links:

Refworld

Statutes:

Immigration Rules 50

Cited by:

Cited – AA v Entry Clearance Officer (Addis Ababa) SC 18-Dec-2013
The appellant child, AA sought entry as the de facto adopted child of his sponsor who had previously been given refugee status. The sponsor had taken parental responsibility of AA under the Islamic Kafala procedure. AA had been admitted under human . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family

Updated: 11 May 2022; Ref: scu.552387

Crowden v Crowden (The King’s Proctor showing cause): 1906

The normal practice of the Queen’s Proctor is not to adduce evidence in support of the plea on intervening in a divorce petition, and there is no need for him to do so where there is no answer to the plea.

Judges:

Bargrave Deane J

Citations:

(1906) 23 TLR 143

Jurisdiction:

England and Wales

Cited by:

Applied – Clutterbuck v Clutterbuck and Reynolds (Queen’s Proctor showing cause) 1961
The court considered the proper practice where the Proctor intervened in a divorce petition, but no answer was received from the parties. . .
Endorsed – Rapisarda 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.
Cited – Grasso v Naik (Twenty-One Irregular Divorces) FD 8-Nov-2017
Deceit in address avoided divorce petitions
The Queen’s Proctor applied to have set aside as fraudulent 21 petitions for divorce. It was said that false addresses had been used in order to give the court the appearance that it had jurisdiction.
Held: The decrees obtained by fraud were . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 May 2022; Ref: scu.537228

Genovese v Malta: ECHR 11 Oct 2011

The applicant was illegitimate, born to a British mother and a Maltese father. Paternity had been established scientifically and in judicial proceedings. The father refused to recognise his son on the birth certificate, and the applicant’s mother brought proceedings which resulted in the birth certificate being amended to show paternity. The applicant then applied for Maltese citizenship, which was denied on the basis that the applicant was illegitimate.
Held: There had been a violation of article 14 in conjunction with article 8 regarding the difference in treatment based upon birth out of wedlock: ‘While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise of a violation of article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article’. At paragraph 34 the Court noted that as Maltese legislation had granted the right to citizenship by descent and established a procedure to that end the State ‘must ensure that the right is secured without discrimination’. At paragraph 47 recorded that the submission on behalf of Malta was that a mother is always certain, a father is not. The Court noted that it ‘cannot accept this argument . . even in cases such as the present where the father was known . . even in cases such as the present where the father was known and registered on the birth certificate, the distinction arising from the provisions of the Citizenship Act persisted.’
It is not permissible to treat children born out of wedlock as having no link with their parents, and it is not permissible to rely on the submission that ‘while a mother is always certain, a father is not’.
‘While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article.’ Malta was not obliged to recognise the right to citizenship by descent, but as it did so, it had to ensure that the right was secured without discrimination. The discrimination could not be justified by the argument that ‘motherhood is certain, whereas fatherhood is not’: Paternity in this case having been established scientifically and in legal proceedings.

Citations:

53124/09, [2011] ECHR 1590, [2012] 1 FLR 10, [2012] Fam Law 20, [2011] Eq LR 1282, (2014) 58 EHRR 25

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department Admn 17-Jul-2014
The court was asked whether the Claimant’s proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence, involves a violation of article 14 in conjunction with article 8 of the European Convention on . .
Cited – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department CA 26-Jan-2016
The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now . .
Cited – Johnson, Regina (on The Application of) v Secretary of State for The Home Department SC 19-Oct-2016
The court was asked: ‘Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were not married to one another at the time of his birth or . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 11 May 2022; Ref: scu.445805

C v C (Divorce: Stay of English Proceedings): FD 2001

The existence of a French ante-nuptial agreement was a significant factor in the staying of the English proceedings for divorce.

Judges:

Johnson J

Citations:

[2001] 1 FLR 624

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 11 May 2022; Ref: scu.425369

Re A Debtor (No.488 IO of 1996), JP v A Debtor: ChD 1999

The debtor had been ordered to pay his wife a sum by way of ancillary relief in matrimonial proceedings. He then proposed an IVA, which was approved at a creditors meeting. W had notice but did not attend. She along with all other creditors was to receive a part payment in full and final settlement. She applied to revoke the approval.
Held: She succeeded. She wife had a right not enjoyed by other creditors namely the freedom to assert her claim following the husband’s bankruptcy notwithstanding the husband’s discharge which right would be overreached if she was compelled to accept a dividend under the IVA in full and final settlement of her entitlement. She had been unfairly prejudiced to the extent that her special position had not been recognised.

Judges:

Sir John Vinelott

Citations:

[1999] 2 BCLC 571

Statutes:

Insolvency Act 1986 262

Jurisdiction:

England and Wales

Cited by:

Applied – Child Maintenance and Enforcement Commission v Beesley and Another ChD 11-Mar-2010
The agency challenged the inclusion in an individual voluntary arrangement of the father’s arrears of child support. The creditors meeting had approved a full and final settlement. 94% of the debts were arrears of child support. The Commission said . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 11 May 2022; Ref: scu.402616

Taylor v Rudd: 5 Feb 1677

The Defendant, four Days after her Husband’s Death, was asked by the Plaintiff, whether she would marry again : and he gave her a Guinea to have ten Guineas for it if she married again. And now she being married, the Plaintiff sued her and her Husband to discover the Promise.

Citations:

[1677] EngR 85, (1677) 2 Chan Cas 241, (1677) 22 ER 926 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Family

Updated: 11 May 2022; Ref: scu.402905

Mussumat Anundee Koonwur, Widow Of Gunput Lal v Khedoo Lal,-Respondent; Mussumat Mankee Koonwur v Khedo Lal; Mussumat Poonpoon Koonwur v Khedoo Lal: 19 Jan 1872

Cesser of commenality is strong, though not conclusive, evidence of partition of joint family property, and removes or qualifies the presumption of Hindoo Law, that the acquisition of property by a member of the family is made by means of the joint estate, but the onus probandi lies on a member of the family setting up separation to prove that the property was acquired by himself after separation, and not from estate of the joint family.

Citations:

[1872] EngR 6, (1872) 14 Moo Ind App 412, (1872) 20 ER 840

Links:

Commonlii

Family, Commonwealth

Updated: 11 May 2022; Ref: scu.280096

Sheldon v Sheldon (The Queen’s Proctor Intervening): 28 Jan 1865

Practice. – Dismissal of Petition – No Evidence produced -The Queen’s Proctor intervened in a suit for dissolution in which the respondent did not appear, and alleged collusion and the petitioner’s adultery. No evidence being tendered in support of the petition, when the case came n for hearing the Court dismissed the petition, without requiring evidence to be produced in support of the Queen’s Proctor’s plea.

Citations:

[1865] EngR 180 (A), (1865) 4 Sw and Tr 75

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Rapisarda 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.
Cited – Grasso v Naik (Twenty-One Irregular Divorces) FD 8-Nov-2017
Deceit in address avoided divorce petitions
The Queen’s Proctor applied to have set aside as fraudulent 21 petitions for divorce. It was said that false addresses had been used in order to give the court the appearance that it had jurisdiction.
Held: The decrees obtained by fraud were . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 May 2022; Ref: scu.281092

Re W (A Minor) (Residence Order): CA 3 May 1993

There is a rebuttable but strong presumption that a child should be with his or her natural parents. Waite LJ said: ‘The authorities which have been cited by Balcombe LJ illustrate the difficulty of finding, within the infinite variety of circumstances in which the welfare of a child may fall to be applied as the paramount consideration, some principle which does precise justice to the element in every child’s welfare represented by the advantage of maintaining the ties of nature with its own parent.’

Judges:

Waite LJ, Balcombe LJ

Citations:

Ind Summary 03-May-1993, [1993] 2 FLR 625

Jurisdiction:

England and Wales

Citing:

Cited – Re H (A Minor) (Custody: Interim Care and Control) CA 1991
Lord Donaldson of Lymington MR said: ‘So it is not a case of parental right opposed to the interests of the child, with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the child. It is the same . .

Cited by:

Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 May 2022; Ref: scu.85901

Nwogbe v Nwogbe: CA 11 Jul 2000

There was no power to enforce an order made under the Act, when making an occupation order, which included orders for the payment of rent, and other outgoings. Such orders did not come within the exceptions under the Debtors Act, nor under the Administration of Justice Act to allow for enforcement by committal, and the section itself could not be read so strongly as to imply a repeal of the earlier Acts.
Modern standards of parliamentary draftsmanship are high, and the presumption against implied repeal is strong.

Judges:

Walker LJ

Citations:

Times 11-Jul-2000, Gazette 07-Sep-2000, [2000] 2 FLR 744

Statutes:

Family Law Act 1996 40, Administration of Justice Act 1970, Debtors Act 1869

Jurisdiction:

England and Wales

Cited by:

Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Lists of cited by and citing cases may be incomplete.

Family, Constitutional

Updated: 11 May 2022; Ref: scu.84397

N v R (Non-Molestation Order: Breach): CA 9 Sep 1998

Court of Appeal again felt justified in substituting immediate for suspended term of imprisonment where defendant in flagrant breach of domestic violence non-molestation order.

Citations:

Gazette 09-Sep-1998

Jurisdiction:

England and Wales

Citing:

applied – Wilson v Webster CA 26-Feb-1998
There is no reason in law to disallow someone applying for a contemnor to be committed, from appealing against the sentence imposed, but it would rare to allow interference. Brown P: ‘It is believed that it may be that criminal proceedings will . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 May 2022; Ref: scu.84151

Jones v Jones: CA 11 Apr 2000

A court had the power to extend a maintenance order which was limited in time, even after it had expired. It was sufficient that the application had been made before the order had expired. Conflicting series of cases should now be settled on this basis. To hold otherwise and require that the order itself must be made before the order expired would lead to injustice and uncertainty. It was necessary to show an intention to exercise the jurisdiction of the court, and that was satisfied my issuing the application.

Citations:

Gazette 28-Apr-2000, Times 11-Apr-2000

Statutes:

Matrimonial Causes Act 1973 28(1A)

Jurisdiction:

England and Wales

Family

Updated: 10 May 2022; Ref: scu.82609

In Re S (A Child) (Ex Parte Orders): CA 2 Nov 2000

The court set out the basic rules to be followed when applying for ex parte orders in children and ancillary relief cases. Recognising the wide variety of situations which might arise, and the need to retain flexibility, it also recognised the need to act quickly particularly to protect children. Those making an application were under a duty to make the fullest and frankest disclosure of all relevant circumstances. This was not limited to material facts, but included for example any relevant law. Any material put before the court should be on the basis that it might later be placed before any other party, and the applicant had a duty to disclose all such material to that party to allow them to prepare for the return hearing. Undertakings must be strictly adhered to. Representatives would be wise to keep notes of the content of the hearing.

Citations:

Times 02-Nov-2000

Jurisdiction:

England and Wales

Children, Family

Updated: 10 May 2022; Ref: scu.82156

In Re W (Enduring Power of Attorney): CA 9 Jan 2001

A party who objected to the registration of an enduring power of attorney on the basis that the donor had not had the mental capacity to sign it, had the burden of proving that assertion.
Held: Hostility between the donee of a power and other family members was not a reason to invalidate a power. The Act placed the burden on the objectors, and that burden did not shift after they had brought sufficient evidence to raise it as an issue.

Citations:

Gazette 25-Jan-2001, Times 09-Jan-2001, [2000] Ch 343

Statutes:

Enduring Powers of Attorney Act 1985 6(5)(c) 6(6)

Jurisdiction:

England and Wales

Cited by:

Cited – In re F (Enduring power of Attorney) ChD 2-Apr-2004
Mrs F had given an enduring power to her son, but then became incapable and the power was registered. Her daughter had in the meantime applied to be appointed as her receiver. There was particular bitterness between the brother and sister. F called . .
Lists of cited by and citing cases may be incomplete.

Agency, Health, Family

Updated: 10 May 2022; Ref: scu.82274

In R H (A Minor) (Court Bundles: Disallowance of Fees): CA 6 Jun 2000

The court’s practice direction on the provision of bundles and the specification of what the bundles should contain in Family Division cases, a warning to practitioners that they would have little by way of answer to a wasted costs order. The shorter the appointment the greater the need for appropriate bundles, and the judge should not be expected to have to rely upon the court papers.

Citations:

Times 06-Jun-2000, Gazette 15-Jun-2000

Jurisdiction:

England and Wales

Citing:

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

Family, Litigation Practice, Legal Professions

Updated: 10 May 2022; Ref: scu.81612

In Re B (Child: Property Transfer): CA 10 May 1999

A court order in divorce proceedings transferring property to a wife ‘for the benefit of the child’ meant no more than for the good of the child and did not create an trust in the child’s favour. The child received no part of the proceeds of sale.

Citations:

Times 10-May-1999

Jurisdiction:

England and Wales

Family

Updated: 10 May 2022; Ref: scu.81721

Hale v Tanner: CA 22 Aug 2000

When attaching a power of arrest on a non-molestation order the court should consider attaching it only to that element which restricts violence or proximity rather than to any part relating to harassment. When considering sentence for a breach, the court should consider the full circumstances, including any mitigation, and its full range of powers, and if the contemnor is imprisoned, the court should give full reasons. Suspension will usually be the first way of attempting to secure compliance. The court considered parallel proceedings under the 1997 Act.
The contemnor appealed against his sentence for breach of Family Law Act injunctions. Hale LJ said: ‘We have been told today, and in my view it is relevant to this appeal, that the proceedings in the Oxford Magistrates’ Court were under the Protection from Harassment Act 1997 and related to complaints of harassment . . between 8 April and 29 December 1999. Thus, there is some overlap between the subject matter of these proceedings and the subject matter of those magistrates’ court proceedings. The outcome, we are told, was a restraining order prohibiting the appellant from contacting either Miss M or the applicant.’ from which ‘Ninthly, in many cases the court will have to bear in mind that there are concurrent proceedings in another court based on either the same facts, or some of the same facts, which are before the court on the contempt proceedings. The court cannot ignore those parallel proceedings. It may have to take into account their outcome in considering what the practical effect is upon the contempt proceedings. They do have different purposes and often the overlap is not exact, but nevertheless the court will not want, in effect, the contemnor to suffer punishment twice for the same events.’ the length of any sentence for committal for contempt must bear some reasonable relationship to the statutory maximum of two years on a committal for a civil contempt.

Judges:

Hale LJ

Citations:

Times 22-Aug-2000, [2002] FLR 879, [2000] 1 WLR 2377

Statutes:

Family Law Act 1996 47, Protection from Harassment Act 1997

Jurisdiction:

England and Wales

Cited by:

Cited – Turnbull v Middlesbrough Borough Council CA 28-Aug-2003
The defendant appealed a sentence of two years for contempt of court.
Held: Two years was the maximum sentence available, and that should be reserved for the offences of maximum severity. Here there was no violence, and no abuse. The defendant . .
Cited – Lomas v Parle CA 18-Dec-2003
The respondent had been sentenced to two months imprisonment for breaches of orders under the Act. The wife appealed, seeking to increase the sentence. The maximum sentence was two years.
Held: The court had to consider such cases in the light . .
Followed – Aquilina v Aquilina CA 24-Mar-2004
The applicant appealed a sentence of six months imprisonment for breaches of a non-molestation injunction.
Held: The breaches had been non-violent, and the court had not considered whether he was prepared to purge his contempt. A balance had . .
Cited – Devjee v Patel CA 18-Aug-2006
The appellant challenged findings that he had broken a non-molestation order. He said that the order had been obtained by means whch were procedurally defective. The original order had been made without notice, and with a power of arrest attached. . .
Cited – Goldsmith v Goldsmith CA 31-Oct-2006
Appeal against sentence of twelve months’ imprisonment for breach of non-molestation order.
On finding breaches of a non-molestation order, the court may not impose a custodial sentence on the contemnor without first hearing his mitigation. . .
Cited – Hammerton v Hammerton CA 23-Mar-2007
The husband appealed against his committal for contempt of a court order in family proceedings. The court had heard the wife’s application for his committal at the same time as his application for contact with the children.
Held: The appeal . .
Cited – Slade v Slade CA 17-Jul-2009
Contempt sentence to reflect existing punishment
The wife appealed against a sentence of imprisonment imposed for a second contempt of court. She said that the behaviour complained of had already been dealt with in criminal proceedings.
Held: The sentence was reduced. The second court should . .
Cited – Aspect Capital Ltd v Christensen ChD 29-Mar-2010
The defendant, a former senior employee had appeared dishonest and been dismissed. A search and seizure order was obtained, and the claimant now said that the defendant was in contempt of it. The parties disputed the extent of his admissions of . .
Cited – Crystal Mews Ltd v Metterick and Others ChD 13-Nov-2006
The court considered the punishment on finding contempt proved for breach of a freezing order: ‘In contempt cases the object of the penalty is both to punish conduct in defiance of the court’s order as well as serving a coercive function by holding . .
Cited – Erhire v E O-I (by his next friend) CA 24-Mar-2011
The mother appealed against a sentence of eight months imprisonment imposed for contempt of court in having broken an order intended to protect the child against being removed to Nigeria with a view to forcing him into a marriage. On complaint of a . .
Lists of cited by and citing cases may be incomplete.

Family, Contempt of Court

Updated: 10 May 2022; Ref: scu.81140

G v F (Non-Molestation Order: Jurisdiction): CA 22 Jun 2000

The issue of whether a respondent to a non-molestation order application was an associated person, was to be construed purposively. The system was designed to afford a swift and accessible procedure. There had been present three of the admirable Crake signposts of co-habitation, a sexual relationship, financial support, and a respondent’s admissions against interest. If they had taken the co-habitation point first, the association would have become an open question.

Citations:

Times 24-May-2000, Gazette 22-Jun-2000

Statutes:

Family Law Act 1996

Jurisdiction:

England and Wales

Citing:

Approved – Crake v Supplementary Benefits Commission; Butterworth v Supplementary Benefits Commission 1982
The claimants lived in the same house. The woman had severe injuries, and her male friend had at one time moved into the house to assist her care. She later moved to live with him, leaving her husband. There was no sexual relationship. The . .
Lists of cited by and citing cases may be incomplete.

Family, Magistrates

Updated: 10 May 2022; Ref: scu.80722

D-R v D-R and Another: CA 8 Feb 1999

There is no presumption as between an adult child and a parent, of any right of contact in favour of the adult, even where the child suffered some mental incapacity. The court looked to the adult with disabilities’ best interests, including all the circumstances, of the case.

Citations:

Times 08-Feb-1999

Jurisdiction:

England and Wales

Family

Updated: 10 May 2022; Ref: scu.80123

Archer v Archer: CA 23 Nov 1998

Where W had substantial capital assets, but little income, and the husband’s position was the reverse, it was not open to her to plead that a divorce should be refused on the grounds of exceptional hardship. Loss of pension in this case was insufficient.

Citations:

Times 23-Nov-1998

Statutes:

Matrimonial Causes Act 1973 5

Jurisdiction:

England and Wales

Family

Updated: 10 May 2022; Ref: scu.77861

B v B (Occupation Orders): CA 5 Jan 1999

A court which ordered a violent husband to vacate the family home to allow his wife and child to return erred in not allowing for the interests of children in the house through second relationship. These particular interests had to be given priority.

Citations:

Times 05-Jan-1999, Gazette 13-Jan-1999

Jurisdiction:

England and Wales

Family

Updated: 10 May 2022; Ref: scu.78052

In Re Duranceau: 1952

What amounts to reasonable maintenance for a spouse must be assessed in the context of the applicant’s ‘station in life’.

Citations:

[1952] 3 DLR 714

Jurisdiction:

Canada

Cited by:

Cited – Bahouse and Another v Negus CA 28-Feb-2008
The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
Held: Appeals under the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 10 May 2022; Ref: scu.277862

Welsh v Welsh: 1994

Citations:

1994 SLT 828

Jurisdiction:

Scotland

Cited by:

Cited – CM v STS SCS 2-Sep-2008
cm_stsSCS2008
The pursuer sought payment of substantial sums, having been disadvantaged by ceasing work to care for the parties’ children. She also asserted that the defender had been advantaged by her taking the care of the children. The parties were not married . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 10 May 2022; Ref: scu.277305