Category: Family

Birch v Birch: CA 22 Oct 1991

W appealed against dismissal of her petition for divorce to the effect that her husband had behaved in such a way that she could not reasonably have been expected to live with him. The judge had found H difficult but that his behaviour was not to the level suggested.
Held: The appeal succeeded. Applying Livingstone Stallard, ‘the judge in this case should have asked himself, ‘allowance will be made for the sensitive as well as for the thick-skinned; . . conduct must be judged [by the capacity of the complaining partner to endure his or her spouse’s conduct] . . the court would consider to what extent the [defending party] knew or ought reasonably to have known [the capacity of the other party to endure the conduct in question]’, and ‘the conduct that the learned judge found in the husband when viewed against the particular susceptibilities and characteristics of the wife in this case would have, had he considered the appropriate subjective test, driven him to the conclusion that there was only one answer – that this husband had behaved in such a way that the petitioner could not reasonably be expected to live with him. ‘

Neill LJ, Cazalet J
[1991] EWCA Civ 5, [1992] Fam Law 290, [1992] 2 FCR 545, [1992] 1 FLR 564
Bailii
Matrimonial Causes Act 1973 291)(b)
England and Wales
Citing:
Cited – Ash v Ash FD 2-Feb-1972
The court considered the standard of behaviour which would support an allegation that a petitioner spouse should not reasonably be expected to live with the other spouse.
Held: Tthe court will have regard to the particular petitioner and the . .
Applied – Livingstone-Stallard v Livingstone-Stallard FD 1974
Section 1(2)(b) is expressed in very simple language, and ‘is . . quite easy for a layman to understand’. The court considered the necessary test for whether unreasonable behaviour had reached a point such as to allow a decree of divorce.
Dunn . .
Cited – O’Neill v O’Neill CA 1975
The court considered the level of unreasonable behaviour necessary to found a decree of divorce.
Cairns LJ said: ‘The right test is, in my opinion, accurately stated in Rayden on Divorce . . ‘The words ‘reasonably be expected’ prima facie . .
Cited – Gollins v Gollins HL 27-Jun-1963
The parties disputed the duty of the wife to continue cohabitation with her husband after a finding that he was guilty of cruelty toward her. The House was also asked as to the nature of ‘unreasonable behaviour’.
Lord Reid said: ‘A judge does . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 22 January 2022; Ref: scu.262634

Regina v County of London Quarter Session Appeals Committee ex parte Rossi: CA 1956

A bastardy summons had been served on the defendant but he had not been properly served with a written notice indicating the date of an adjourned hearing. He sought an order for certiorari to quash the decision of the court.
Held: Where there has been no service at all then the subsequent order is irregularly obtained and one to which the defendant is entitled to have set aside as of right. ‘He [that is the clerk of the peace] sent a letter by registered post to Mr Rossi telling him the date, time and the place of the adjourned hearing; but it was returned to him unopened and undelivered. In those circumstances was the Act complied with? Did the clerk of the peace in due course give ‘notice’ to Mr Rossi? It is argued that it is sufficient to comply with section 3 (1) if he sends a registered letter to the respondent, even though it is not received by him, and known not to be received. I do not think this is correct. When construing this section, it is to be remembered that it is a fundamental principal of our law that no one is to be found guilty or be made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. ‘ Denning LJ distinguished between an order regularly made and one which was irregularly made. If it was regularly made then the proper course of complaint was by way of appeal. If it was irregularly made then the proper course was not only by appeal but also by way of prerogative writ. ‘But once it appeared that the letter had been returned undelivered, then it was quite plain that he had not been given notice at all of the date, time and place of the hearing. In short, service had not been effected; and the court should not have entered upon the hearing at all.’ and ‘I would just add this: if the order had been regularly obtained (as the Divisional Court thought), then I would agree that there would be no ground for certiorari and the only remedy of Mr Rossi would be by application to quarter sessions to set aside the order made in his absence and to rehear the appeal.’ and ‘… if the letter is returned undelivered and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae. The order of quarter sessions here was irregular because there was no proper service and it should be set aside.’
Parker LJ said: ‘The section, it will be seen, is in two parts. The first part provides that the dispatch of a notice or other document in the manner laid down, shall be deemed to be service thereof. The second provides that, unless the contrary is proved, that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play, and only comes into play, in a case where under the legislation to which the section is being applied the document has to be received by a certain time. if in such a case ‘the contrary is proved’, i.e., that is the document was not received by that time or at all, then the position appears to be that, though under the first part of the section the document is deemed to have served, it has been proved that it was not served in time.’

Denning LJ, Morris LJ and Parker LJ
[1956] 1 QB 682, [1956] 1 All ER 670
England and Wales
Cited by:
Cited – Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd ChD 9-May-2003
The landlord had served a notice under the 1954 Act. The tenant served a counter notice, but the question was whether he was late, or out of time.
Held: The combination of the various provisions meant that the landlord’s notice had irrevocably . .
Cited – Immigration Advisory Services v Oommen EAT 19-Mar-1997
The claimant had been ordered to pay a deposit as a condition of being allowed to proceed with the claim which the tribunal had judged to have no reasonable prospect of success. The claim was struck out after the tribunal had been wrongly told that . .
Cited – Gidden v Chief Constable of Humberside Admn 29-Oct-2009
The driver appealed against his conviction for speeding, saying that he had not been given the requisite notice within the 14 days required: ‘The notice of intended prosecution had been sent to him by first class ordinary post in circumstances where . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 22 January 2022; Ref: scu.182412

AD v BD: FD 8 Apr 2020

W’s application for financial remedy orders following the breakdown of the marriage to the husband

The Hon Mr Justice Cohen
[2020] EWHC 857 (Fam)
Bailii
England and Wales

Family

Updated: 22 January 2022; Ref: scu.655227

K and Others v K: FD 5 Jul 2021

Reasons for allowing an appeal brought before the court under Chapter III (Recognition and Enforcement) of Council Regulation (EC) No.2201/2003 (‘BIIR’), specifically Article 33. For the avoidance of doubt, notwithstanding the departure of the UK from the EU on 31 December 2020, BIIR continues to apply under the transitional arrangements for cases, such as this one, which were issued on or before 31 December 2020.

The Honourable Mr Justice Cobb
[2021] EWHC 1846 (Fam)
Bailii
England and Wales

Family

Updated: 22 January 2022; Ref: scu.663825

US v SR: FD 31 Jan 2014

Cross-applications for financial remedy orders.

Mrs J Roberts QC Sitting as a Deputy High Court Judge
[2014] EWHC 175 (Fam)
Bailii
England and Wales

Family

Updated: 22 January 2022; Ref: scu.522630

Montefiori v Montefiori: 1746

A note, given fraudulently, to carry on a marriage treaty, shall be good against the drawer, though given without any consideration.
Lord Mansfield said: ‘no man shall set up his own iniquity as a defence, any more than as a cause of action’.

Lord Mansfield
[1746] EngR 363, (1746-1779) 1 Black W 363, (1746) 96 ER 203
Commonlii
England and Wales
Cited by:
Cited – Takhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Family, Torts – Other

Updated: 22 January 2022; Ref: scu.380751

Mubarak v Mubarak: FD 23 Oct 2000

The court had made an order for payment by H to W on the divorce, and was now asked whether W could take jewelry held by H’s company in part satisfaction of the capital sums due.

Bodey J
[2000] EWHC 466 (Fam), [2001] 1 FLR 673, [2001] Fam Law 177
Bailii
England and Wales
Cited by:
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .

Lists of cited by and citing cases may be incomplete.

Family, Company

Updated: 20 January 2022; Ref: scu.567911

Goyal v Goyal: CA 29 Jul 2016

Application for a pension sharing order within financial remedy proceedings following a divorce, which raises the question of what jurisdiction, if any, the Family Court may have to make an order transferring or assigning one spouse’s interest in a pension annuity policy to the other spouse outside the statutory scheme established by the 1973 Act.

McFalrlane, Macur LJJ
[2016] EWCA Civ 792
Bailii
Matrimonial Causes Act l973
England and Wales

Family

Updated: 20 January 2022; Ref: scu.567804

T, Regina (on The Application of) v Secretary of State for The Home Department: CA 28 Jul 2016

Appeal by T, against an order dismissing her claim for judicial review of the decision of the Secretary of State to refuse her application under what is known as the ‘Destitute Domestic Violence Concession’

Moore-Bick, Longmore, Macur LJJ
[2016] EWCA Civ 801
Bailii
England and Wales

Immigration, Family

Updated: 20 January 2022; Ref: scu.567723

In the Estate of Fuld, decd (No 3): ChD 1967

The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice.
Scarman J said: ‘First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.’ and
‘(1) The domicile of origin adheres unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact-of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres . . .’ and
‘necessary intention must be clearly and unequivocally proved. ‘ The domicile of origin is more enduring than the domicile of choice: ‘ . . It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change . . What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin [1838] 2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.’
Scarman J dismissed the idea that the standard of proof required to prevent an inference of the revival of a domicile of origin on the loss of a domicile of choice was the criminal standard. An inference drawn by the court must be consistent with all the relevant proved or admitted facts. He said: ‘There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?
In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin ‘is more enduring, its hold stronger and less easily shaken off.’ In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear – first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.’
. . And: ‘when all is dark, it is dangerous for a court to claim that it can see the light.’
When the court is asked to grant probate in solemn form it is called upon to decide whether the instrument propounded expresses the real intention of the testator. The law requires the court to exercise vigilant care and scrutiny whenever a case reveals reasonable grounds for suspicion. Scarman J said: ‘Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is part of the substantive law – the requirements of proper form and due execution. Such requirements . . are no mere technicalities. They are the first line of defence against fraud upon the dead.
The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences – presumptions as they are sometimes called – to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and ‘he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator’.’

Scarman J
[1968] P 675, [1967] 3 WLR 401, [1967] 3 All ER 318
England and Wales
Citing:
Cited – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Cited by:
Cited – Fuller v Strum CA 7-Dec-2001
The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
Held: The onus on the propounder of a will to show that it . .
Cited – Peer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
Cited – Sherrington v Sherrington ChD 13-Jul-2004
The deceased had divorced and remarried. His children challenged the will made after his second marriage.
Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
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 – 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 . .
Approved – Buswell v Inland Revenue Commissioners CA 1974
. .
Cited – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Cited – Gill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
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. . .
See Also – In re the Estate of Fuld, decd (No. 4) 1968
The solicitor sought to exercise a lien for his costs over money paid direct to his client.
Held: The solicitor’s right exists over both the amount of a judgment in favour of the client, and the amount of an order for costs in favour of the . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Family, Litigation Practice, Wills and Probate

Updated: 20 January 2022; Ref: scu.186118

In re Hagger; Freeman v Arscott: ChD 1930

The husband and wife had made wills in similar terms, each leaving their separate property to each other on the first spouse dying with remainders over. They agreed that the wills should not be revoked without the agreement of the other. The wife died first, and the husband received the income for his lifetime from her estate as under the will.
Held: The property of the wife held by the surviving husband under her will and to be disposed of by his own will was subject to a trust in that behalf under which the legatees in absolute remainder took the vested interests subject to the husband’s life interest. Therefore the death of a legatee before the husband’s death did not mean that that interest lapsed. His interest had already vested. A common intention of husband and wife and taking of benefit are sufficient to establish mutual wills.
Clauson J set out the principles underlying the law’s acceptance of mutual wills: ‘To my mind Dufour v. Pereira decides that where there is a joint will such as this, on the death of the first testator the position as regards that part of the property which belongs to the survivor is that the survivor will be treated in this Court as holding the property on trust to apply it so as to carry out the effect of the joint will. As I read Lord Camden’s judgment in Dufour v. Pereira that would be so, even though the survivor did not signify his election to give effect to the will by taking benefits under it. But in any case it is clear that Lord Camden has decided that if the survivor takes a benefit conferred on him by the joint will he will be treated as a trustee in this Court, and he will not be allowed to do anything inconsistent with the provisions of the joint will.’

Clauson J
[1930] 2 Ch 190, [1930] 99 LJ Ch 492, [1930] 143 LT 610
England and Wales
Citing:
Explained – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .

Cited by:
Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 20 January 2022; Ref: scu.183796

RC v JC: FD 25 Feb 2020

Cross-applications for financial provision following the breakdown of the marriage between the Applicant, RC and the Respondent, JC

Mr Justice Moor
[2020] EWHC 466 (Fam)
Bailii
England and Wales

Family

Updated: 20 January 2022; Ref: scu.655222

Sadovska and Another v The Secretary of State for The Home Department: SCS 7 Jul 2016

[2016] ScotCS CSIH – 51
Bailii
Scotland
Cited by:
Cited – Sadovska and Another v Secretary of State for The Home Department SC 26-Jul-2017
The parties had applied to be married. S was a European citizen, and the intended groom was an overstayer from Pakistan. They were refused a licence, and taken into custody, and now appealed against refusal of a licence.
Held: The appeal . .

Lists of cited by and citing cases may be incomplete.

Family, Immigration

Updated: 19 January 2022; Ref: scu.567043

Alhaji Mohamed v Knott: 1969

A 26 year old Nigerian Muslim man who entered into a potentially polygamous marriage in Nigeria with a Nigerian girl aged 13; both were domiciled in Nigeria and the marriage was valid according to Nigerian law.
Held: The marriage was capable of recognition in our laws.

[1969] 1 QB 1
England and Wales
Cited by:
Cited – Singh v Entry Clearance Officer New Delhi CA 30-Jul-2004
The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 January 2022; Ref: scu.200325

AA v BB: FD 2 Jul 2021

Appeal against a case management decision made by Recorder Glancy QC to exclude evidence from a fact finding hearing where there are allegations of domestic abuse.

The Honourable Mrs Justice Judd DBE
[2021] EWHC 1822 (Fam)
Bailii
England and Wales

Family

Updated: 18 January 2022; Ref: scu.665989

Gandhi v Patel and others: ChD 31 Jul 2001

Park J
[2001] EWHC Ch 473, [2002] 1 FLR 603
Bailii
England and Wales
Cited by:
Cited – Hudson v Leigh FD 5-Jun-2009
The claimant sought a decree of divorce. The ceremony had been a religious one in Cape Town. They had intended it to be followed by a ceremony in a register office in England, but this did not happen. The pastor in south Africa said that he had . .

Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 15 January 2022; Ref: scu.263739

VR v YD and Another: FD 29 Sep 2021

Application for disclosure in the context of proceedings brought under the 1980 Hague Convention. The subject matter of the application is material generated in the context of an application for asylum made by the child who is at the centre of the mainframe Convention application in which his father seeks his return to Ukraine.

The Honourable Mrs Justice Roberts DBE
[2021] EWHC 2642 (Fam)
Bailii
England and Wales

Family

Updated: 15 January 2022; Ref: scu.669906

Khachab v Subdelegacion del Gobierno en Alava: ECJ 21 Apr 2016

ECJ (Judgment) Reference for a preliminary ruling – Directive 2003/86/EC – Article 7(1)(c) – Family reunification – Requirements for the exercise of the right to family reunification – Stable and regular resources which are sufficient – National legislation permitting a prospective assessment of the likelihood that the sponsor will retain his resources – Compatibility

T. von Danwitz, P
C-558/14, [2016] EUECJ C-558/14, ECLI:EU:C:2016:285
Bailii
Directive 2003/86/EC

European, Family

Updated: 14 January 2022; Ref: scu.562820

Re JK (A Child), (Domestic Abuse: Finding of Fact Hearing): FD 21 May 2021

This judgment follows a finding of fact hearing concerning allegations of a pattern of coercive and/or controlling behaviour during the course of a marriage. The hearing has taken place shortly after the Court of Appeal handed down its judgment in Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA 448 (Civ) in which guidance was given in relation to such hearings.

Mr Justice Poole
[2021] EWHC 1367 (Fam)
Bailii
England and Wales

Family, Children

Updated: 14 January 2022; Ref: scu.663807

James Fairie v James Watson: HL 19 Feb 1770

Conquest – Approbate and Reprobate.-
In a marriage contract, the husband had conveyed the whole lands and heritages that he might conquest or acquire during the marriage, one half to themselves in conjunct fee and liferent, and to the children of the marriage in fee; whom failing, to his wife’s own nearest heirs. And in case of his dying without children, and his wife surviving him, then in that case disponing to her 100 merks, in full of all she, or her next of kin could claim: Held, in an action by her next of kin, for one half of the conquest after her death, that she could not approbate and reprobate the same deed by accepting the 100 merks, and also claiming the conquest; and that the house purchased during the marriage was not conquest, it appearing to have been purchased with funds at his disposal at the commencement of the marriage, and not with funds acquired by him subsequent thereto, and during the subsistence thereof.

[1770] UKHL 2 – Paton – 213
Bailii
Scotland

Family

Updated: 13 January 2022; Ref: scu.561662

Jean Murray, Otherwise Carlyle, of Locharthur, and Husband v George Carlyle, Son of The Deceased Thomas Carlyle, In Travala, In Wales: HL 21 Feb 1770

Deed – Construction – Conditions. –
A marriage-contract, although absurd, and inconsistent in some of its clauses, yet, as it was clear in the destination clause, it was sustained.

[1770] UKHL 6 – Paton – 779a, (1770) 6 Paton 779a
Bailii
Scotland

Family

Updated: 13 January 2022; Ref: scu.561663

James Arthur v Janet Gourlay: HL 9 Mar 1769

Separate Aliment.-
Where the husband offers to aliment the wife in his own house, but takes lodgings only for her, and does not eat, sleep, or stay in the same house with her. Held, that this is not adherence sufficient to exempt him from liability in a separate alimony.

[1769] UKHL 2 – Paton – 184
Bailii
Scotland

Family

Updated: 13 January 2022; Ref: scu.561656

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 chromosomal, gonadal and genital tests. If all three are congruent, that should determine a person’s sex for the purpose of marriage. Any operative intervention should be ignored. The biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means. The marriage was void ab initio.
As to the difference between a declaration under RSC Ord.15, and a decree of nullity, Ormrod J observed: ‘The importance of this distinction is, of course, that on a decree of nullity, the court has the power to entertain an application for ancillary relief whereas if a declaration order is made, there is not such power.’ Since ecclesiastical courts did in fact grant declaratory sentences in cases of meretricious marriages, there was no discretion to withhold any decree of nullity. ‘[o]n the facts as I have found them to be, a matrimonial relationship between the petitioner and the respondent was a legal impossibility at all times and in all circumstances, whereas a marriage which is void on the grounds of bigamy, non-age or failure of third party consents, might, in other circumstances, have been a valid marriage.’ Sex is an essential determinant of marriage, because: ‘it is and always has been recognised as the union of man and woman.’
Ormrod J: ‘It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent’s operation, therefore, cannot affect her true sex. The only cases where the term ‘change of sex’ is appropriate are those in which a mistake as to sex is made at birth and subsequently revealed by further medical investigation.’

Ormrod J
[1971] P 83
England and Wales
Citing:
Applied – Hyde v Hyde and Woodmansee 20-Mar-1866
A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a, marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time . .

Cited by:
Cited – Bellinger v Bellinger CA 17-Jul-2001
Transgender Male may not marry as Female
Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the . .
Cited – The Chief Constable of the West Yorkshire Police v A, Secretary of State for Education EAT 2-Oct-2001
The Force appealed findings of sex discrimination against the respondent who had undergone gender reassignment. She required the fact of the procedure to be kept secret. The force refused her application for appointment since they said she would be . .
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 . .
Applied – Regina v Tan CA 1983
Tan and others were accused of keeping a disorderly house having advertised: ‘Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble . .
Applied reluctantly – S v S-T (Formerly J) CA 25-Nov-1996
The parties had gone through a form of marriage, but the purported husband was many years later revealed to be a female to male transsexual. The marriage had been annulled. There was now an application for ancillary relief.
Held: Ancillary . .
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 – 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 – 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 . .
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 – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – J v C and E (a Child) (Void Marriage: Status of Children) CA 15-May-2006
The parties had lived together as a married couple. They had had a child together by artificial insemination. It was then revealed that Mr J was a woman. The parties split up, and Mr J applied for an order for contact with the child.
Held: The . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Bellinger v Bellinger FD 22-Nov-2000
The test for what sex somebody was for the purposes of validating a marriage was the sex as decided and set out on the birth registration certificate. Though increasing recognition has been given to the complexities of gender identity over the . .
Cited – Hudson v Leigh FD 5-Jun-2009
The claimant sought a decree of divorce. The ceremony had been a religious one in Cape Town. They had intended it to be followed by a ceremony in a register office in England, but this did not happen. The pastor in south Africa said that he had . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .

Lists of cited by and citing cases may be incomplete.

Family, Administrative

Updated: 13 January 2022; Ref: scu.180939

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 was an infringement of her human rights.
Held: Such a relationship is recognised in England as a civil partnership, and not as a marriage. That was not an infringment of the claimant’s human rights and no declaration of incompatibility was made in respect of s11(3) of the 1973 Act.

Sir Mark Potter President
[2006] EWHC 2022 (Fam), Times 21-Aug-2006, [2006] HRLR 36, [2007] 1 FCR 183, [2007] UKHRR 164, [2007] 1 FLR 295, [2006] Fam Law 1030
Bailii
Family Law Act 1986 55, Matrimonial Causes Act 1973 11(c), Human Rights Act 1998 4
England and Wales
Citing:
Cited – Hyde v Hyde and Woodmansee 20-Mar-1866
A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a, marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time . .
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 – 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 – Mette v Mette 1859
Where somebody with English domicile purports to marry in another jurisdiction, but the parties lack capacity to marry in English law, the marriage is not recognised in England. . .
Cited – Brooks v Brooks HL 1861
. .
Cited – Berthiaume v Dastous HL 1930
Under the rules of private international law the form of marriage is generally governed by the local law of the place of celebration.
Lord Dunedin said: ‘If there is one question better settled than any other in international law, it is that . .
Cited – Pugh v Pugh 1951
The court considered the age requirement for capacity to marry. . .
Cited – Padolecchia v Padolecchia FD 1968
Ante-nuptial domicile sets capacity law
The husband domiciled in Italy was divorced from his first wife in Mexico. The divorce was not recognised in Italy. The husband then went to live in Denmark and during a one day visit to England went through a ceremony of marriage with a woman . .
Cited – Vervaeke v Smith CA 1981
The issue was whether a Belgian decree pronouncing void a marriage celebrated in England should be recognised here. The parties had entered into the marriage with no intention of ever living together. Relying on its notion of public policy, the . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – Lawrence v Lawrence 1985
Exceptionally the court may look at the capacity of a party to marry in a particular jursidiction by reference to the intended family home rather than the ante-nuptial domicile. . .
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 – Johnston and Others v Ireland ECHR 18-Dec-1986
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Pecuniary damage – claim rejected; Non-pecuniary damage . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – F v Switzerland ECHR 18-Dec-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 12; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .
Cited – B And L v The United Kingdom ECHR 13-Sep-2005
The claimants said that UK law was inconsistent in its treatment of marriage between in-laws, since it provided that it was available only by means of a private Act of parliament.
Held: The provision was irrational and infringed the human . .
Cited – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
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 – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
Cited – Karner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
Cited – 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 . .
Cited – Regina v Secretary of State for the Home Department Ex parte Anderson HL 25-Nov-2002
The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – Mata Estevez v Spain ECHR 10-May-2001
The claimant complained that the state did not give proper recognition of his relationship with his deceased same sex partner.
Held: The court noted the growing tendency in a number of European states towards the legal and judicial recognition . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – In re S (Minors) (Care Order: Implementation of Care Plan) HL 14-Mar-2002
Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. The proposed . .
Cited – Frette v France ECHR 26-Feb-2002
A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article . .
Cited – Van Der Mussele v Belgium ECHR 23-Nov-1983
There is discrimination only if the cases under comparison are not sufficiently different to justify the difference in treatment. This expressed by saying that the two cases must be in an ‘analogous situation’. The social security system is a . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Cited – 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 . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
See Also – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .

Cited by:
Cited – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .

Lists of cited by and citing cases may be incomplete.

Family, Human Rights

Updated: 13 January 2022; Ref: scu.244130

Frost v Frost: CA 1968

Admission of new evidence on appeal in family matters.

[1968] 1 WLR 1221
England and Wales
Cited by:
Cited – In re K (Children) (Non-accidental injuries: Perpetrator: New Evidence) CA 27-Aug-2004
The children had been taken into care, and freed for adoption. The mother appealed saying the blame for non-accidental injury was misplaced. The court had not thought her responsible for the non-accidental injuries, but she had been unwilling to . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 January 2022; Ref: scu.200657

Bellinger v Bellinger: CA 17 Jul 2001

Transgender Male may not marry as Female

Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the section had not previously been interpreted. The Corbett criteria remained applicable. The ability to marry is a matter of status, and is not for the parties alone. If this law is to be changed it must be for parliament to do so. (Lord Thorpe dissenting)

Butler-Sloss President, Thorpe LJ, Walker LJ
Times 15-Aug-2001, Gazette 31-Aug-2001, [2001] EWCA Civ 1140, [2002] 2 WLR 411, [2002] Fam 150
Bailii
Matrimonial Causes Act 1973 11(c)
England and Wales
Citing:
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 . .
Appeal from – Bellinger v Bellinger FD 22-Nov-2000
The test for what sex somebody was for the purposes of validating a marriage was the sex as decided and set out on the birth registration certificate. Though increasing recognition has been given to the complexities of gender identity over the . .
Cited – Hyde v Hyde and Woodmansee 20-Mar-1866
A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a, marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time . .
Cited – Regina v Tan CA 1983
Tan and others were accused of keeping a disorderly house having advertised: ‘Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble . .
Cited – S v S-T (Formerly J) CA 25-Nov-1996
The parties had gone through a form of marriage, but the purported husband was many years later revealed to be a female to male transsexual. The marriage had been annulled. There was now an application for ancillary relief.
Held: Ancillary . .
Cited – W v W (Physical inter-sex) FD 31-Oct-2000
A party to a marriage had ambiguous physical characteristics. The respondent’s sex at birth was uncertain, and that the parents chose to register her as a boy. As a child and a young woman she dressed as, appeared as, and acted as female. At 17, she . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .

Cited by:
Appeal from – 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 – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .

Lists of cited by and citing cases may be incomplete.

Family, Administrative

Updated: 13 January 2022; Ref: scu.147617

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 with the claimant’s human rights.
Held: Mrs B, a trans-sexual female who had been born and registered as a male at birth, could not validly contract a marriage with another male. Trans-sexual people are to be distinguished from inter-sexual people. Society and the law had moved on since the case of Corbett, and the case of Goodwin had superceded the CA decision in this case. However, though the law needed to be changed, it was not for the House to do so. That would require wide ranging changes, involving matters which were quite outside the court’s powers. The court granted a declaration of incompatibility for section 11(c) but no more.
Lord Nicholls said: ‘It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable. An individual may not then be able, during the transitional period, to complain that his rights have been violated. The admissibility decision of the court in Walden v Liechtenstein (Application no 33916/96) (unreported) 16 March 2000 is an example of this pragmatic approach to the practicalities of government.’

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry
[2003] UKHL 21, Times 11-Apr-2003, [2003] 2 AC 467, [2003] 2 All ER 593, [2003] Fam Law 485, 14 BHRC 127, [2003] 2 WLR 1174, 72 BMLR 147, [2003] 2 FCR 1, [2003] HRLR 22, [2003] 1 FLR 1043, [2003] UKHRR 679, [2003] ACD 74
House of Lords, Bailii
Matrimonial Causes Act 1973 11(c), European Convention on Human Rights 8 12
England and Wales
Citing:
Appeal from – Bellinger v Bellinger CA 17-Jul-2001
Transgender Male may not marry as Female
Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the . .
Cited – W v W (Physical inter-sex) FD 31-Oct-2000
A party to a marriage had ambiguous physical characteristics. The respondent’s sex at birth was uncertain, and that the parents chose to register her as a boy. As a child and a young woman she dressed as, appeared as, and acted as female. At 17, she . .
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 – Regina v Tan CA 1983
Tan and others were accused of keeping a disorderly house having advertised: ‘Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble . .
Cited – S v S-T (Formerly J) CA 25-Nov-1996
The parties had gone through a form of marriage, but the purported husband was many years later revealed to be a female to male transsexual. The marriage had been annulled. There was now an application for ancillary relief.
Held: Ancillary . .
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 – 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 – 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 . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Applied – Hyde v Hyde and Woodmansee 20-Mar-1866
A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a, marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time . .
At first instance – Bellinger v Bellinger FD 22-Nov-2000
The test for what sex somebody was for the purposes of validating a marriage was the sex as decided and set out on the birth registration certificate. Though increasing recognition has been given to the complexities of gender identity over the . .

Cited by:
Cited – Croft v Royal Mail Group Plc (formerly Consignia Group plc) CA 18-Jul-2003
The employee was a transsexual, awaiting completion of surgical transformation to a woman. The employer said she could not use the female toilet facilities, but was offered use of the unisex disabled facilities.
Held: The 1975 Act provides for . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
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 – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Wilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
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 – Smith v KD Scott, Electoral Registration Officer SCS 24-Jan-2007
The prisoner claimed that his right to vote had not been re-instated despite a year having passed since the European Court of Human Rights had found that the withdrawal of that right for prisoners was an infringement.
Held: It was not possible . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – AB, Regina (On the Application of) v Secretary of State for Justice and Another Admn 4-Sep-2009
The claimant was serving a sentence of imprisonment. She was a pre-operative transgender woman, but held in a male prison. She sought review of a decision to refuse transfer to a women’s prison. The Gender Recognition Panel was satisfied that the . .
Cited – Regina (Chester) v Secretary of State for Justice and Another QBD 28-Oct-2009
The claimant a prisoner detained after the expiry of his lfe sentence tariff as dangerous, sought a declaration that the refusal to allow him to register as a voter in prison infringed his human rights.
Held: Such a claim had already succeeded . .
Cited – Timbrell v Secretary of State for Work and Pensions CA 22-Jun-2010
The claimant had undertaken male to female treatment including surgery and lived as a woman, though continuing to live with her wife. She sought payment of a pension at 60, but was refused. The regulations required a gender recognition certificate . .
Cited – Nicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
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 . .
Cited – C, Regina (on The Application of) v Secretary of State for Work and Pensions SC 1-Nov-2017
This case is about how the Department for Work and Pensions (the DWP), in administering our complex welfare benefits system, treats people with a reassigned gender, and specifically whether certain policies conflict (1) with the Gender Recognition . .
Cited – Elan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .

Lists of cited by and citing cases may be incomplete.

Administrative, Family, Human Rights

Leading Case

Updated: 13 January 2022; Ref: scu.180697

Chief Adjudication Officer v Bath: CA 28 Oct 1999

The claimant and her husband had been married at a Sikh temple, and lived together for many years before his death. The temple had not been accredited for marriages, and the Secretary of State resisted payment of benefits to the claimant as a widow, saying that she had not been married.
Held: The claimant’s appeal succeeded. There was nothing to make the marriage void, and there was a presumption of a valid marriage where the parties had gone through a ceremony and had lived together on that basis. The fact discovered many years later that the ceremony was defective would not mean that the couple were not married. This was supported by old common law rules. The validity of a marriage should be upheld wherever possible: ‘there is nothing to suggest that the Sikh marriage ceremony and the consequences thereof in the eyes of the Sikh religious authorities was other than such a voluntary union for life of one man and one woman to the exclusion of all others. In my view that ‘marriage’ is validated by the common law presumption from long cohabitation, in pursuance of the policy of the law that, in the absence of the clearest possible reason why there should not be such a presumption, a ceremony of ‘marriage’ bona fide entered by parties who thereafter who live monogamously and bring up children of the union should be respected and accorded the proper legal status of marriage. ‘

Times 28-Oct-1999, [1999] EWCA Civ 3008
Bailii, Bailii
Marriage Act 1949
England and Wales
Citing:
Cited – Sastry Velaider Aronegary v Sembecutty Vaigalie 1881
There had been ceremony of marriage which was prima facie valid. There was therefore a presumption of marriage. . .
Cited – Bibi v Chief Adjudication Officer CA 25-Jun-1997
A widow from a polygamous marriage is not entitled to the widowed mother’s allowance, despite the payment of national insurance contributions by the deceased father. There must have been a valid English marriage, according to the lex loci. . .
Cited – Hyde v Hyde and Woodmansee 20-Mar-1866
A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a, marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time . .
Cited – Re Green, Noyes v Pitkin 1909
There had been a foreign marriage ceremony. The court applied the presumption of marriage from long cohabitation without ceremony. . .
Cited – Re Shephard, George v Thyer 1904
The parties gave evidence that the only ceremony of marriage through which they went took place in France. The case was argued and decided on the basis, accepted by the learned judge, that expert evidence showed that the ceremony could not have been . .

Lists of cited by and citing cases may be incomplete.

Family, Benefits

Updated: 13 January 2022; Ref: scu.79037

Hyde v Hyde and Woodmansee: 20 Mar 1866

A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a, marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time when it was contracted both the man and the woman were single and competent to contract marriage, the English Matrimonial Court will not recognise it as a valid marriage in a suit instituted by one of the parties against the other for the purpose of enforcing matrimonial duties, or obtaining relief for a breach of matrimonial obligations.
Lord Penzance defined marriage: ‘I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.’

Lord Penzance
[1886] LR1 P and D 130, [1866] UKLawRpPro 29
Commonlii
England and Wales
Cited by:
Cited – Chief Adjudication Officer v Bath CA 28-Oct-1999
The claimant and her husband had been married at a Sikh temple, and lived together for many years before his death. The temple had not been accredited for marriages, and the Secretary of State resisted payment of benefits to the claimant as a widow, . .
Applied – 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 . .
Applied – 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 – 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 – Bellinger v Bellinger CA 17-Jul-2001
Transgender Male may not marry as Female
Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the . .
Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 January 2022; Ref: scu.231667

Besharova v Berezovsky: CA 22 Mar 2016

The court was asked a narrow point of construction of a consent order by which the claim by Galina Besharova for financial remedy orders against her former husband, the late Boris Berezovsky, was compromised.

Sir Stephen Richards
[2016] EWCA Civ 161
Bailii
England and Wales

Family

Updated: 12 January 2022; Ref: scu.561204