Category: Family

Cordle v Cordle: CA 15 Nov 2001

The former practice in ancillary relief applications where a circuit judge hearing an appeal from a district judge could admit new evidence and hear the case de novo should not survive the new rules, and should cease. An appeal to the circuit judge is not a re-hearing but a review of the exercise of the district judge’s exercise of a discretion. Appeals from a district judge could only be allowed for procedural irregularity, or a plainly wrong exercise of the judge’s discretion. Fresh evidence should not be admitted unless there was a real need to do so on the application of the more liberal rules for the admission of fresh evidence recognised as necessary in Family proceedings.

Dame Elizabeth Butler-Sloss, President and Lord Justice Thorpe
Times 07-Dec-2001, Gazette 04-Jan-2002, [2002] 1 WLR 1441, [2002] 1 FCR 97, [2001] EWCA Civ 1507, [2002] 1 FLR 207, [2001] EWCA Civ 1791, [2002] Fam Law 17
Bailii, Bailii
Access to Justice Act 1999, Civil Procedure Rules 52.11
England and Wales
Citing:
Reconsidered – Marsh v Marsh CA 1-Mar-1993
Appeals under the Family Proceedings Rules had to be read in conjunction with the CCR Order 37 r 6, and the judge hearing the appeal had discretion to substitute his own view for that of the court below. This is different from what applies on appeal . .

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 . .
Cited – B v B (Ancillary relief: Distribution of assets) CA 19-Mar-2008
The wife appealed an ancillary relief order for equal division on the basis that the judge had failed to allow for the fact that most of the assets had been brought to the marriage by her.
Held: Her appeal succeeded. All the assets at the . .
Cited – Lauder v Lauder FD 21-Mar-2007
W appealed against the variation of periodical payments order.
Held: The court will not generally expect W to apply inherited capital (as opposed to the income generated therefrom) to the meeting of her maintenance needs. . .
Cited – Eve v Spratt CA 16-Apr-2002
W sought leave to appeal against the refusal in an ancillary relief application to award her any maintenance. . .

Lists of cited by and citing cases may be incomplete.

Family, Civil Procedure Rules

Updated: 12 January 2022; Ref: scu.167117

AMM v HXW: QBD 7 Oct 2010

The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication would cause damage to the claimant’s private life, damages would not be an adequate remedy, and the defendant had not sought to argue any proper public interest in the material. The court considered its alternatives where the it was suggested that the defendant may have been guilty of blackmail, but where, as here, there had already been limited public disclosure. As in TFD at this interim stage it was not necessary to consider whether the defendant had the right to publish what she threatened.

Tugendhat J
[2010] EWHC 2457 (QB)
Bailii
Theft Act 1968 21
England and Wales
Citing:
Cited – Duchess of Argyll v Duke of Argyll ChD 1967
An interlocutory injunction was granted to protect against the revelation of marital confidences, and the newspaper to which the Duke had communicated such information about the Duchess was restrained from publishing it. The concept of . .
Cited – Stephens v Avery ChD 1988
The parties had been friends and had discussed their sex lives. The defendant took the information to a newspaper and its editor, the second and subsequent defendants who published it. The plaintiff sought damages saying the conversations and . .
Cited – Ash and Another v McKennitt and others CA 14-Dec-2006
The claimant was a celebrated Canadian folk musician. The defendant, a former friend, published a story of their close friendship. The claimant said the relationship had been private, and publication infringed her privacy rights, and she obtained an . .
Cited – DFT v TFD QBD 27-Sep-2010
The court heard an application for an injunction to restrain publication of material relating to the claimant’s private and sexual life.
Held: An injunction restraining publication and identification, but not an order restraining publication . .
Cited – Thorne v Motor Trade Association HL 1937
The House confirmed a declaration granted as to validity of a rule of association notwithstanding the absence of any dispute. The House considered the nature of the threat required to establish a defence of duress.
Lord Wright observed that the . .
Cited – Regina v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney-General CA 1974
In a blackmail case, the court ordered non publication of the names of the complainants. Thinking they were not bound, the defendants published the names.
Held: The publishers and Mr Michael Foot were held to be in contempt of court in . .
Cited – In re an Inquiry Under The Company Securities (Insider Dealing) Act 1985 HL 1988
The term ‘necessary’ will take its colour from its context; in ordinary usage it may mean, at one end of the scale, ‘indispensable’ and at the other ‘useful’ or ‘expedient’.
Lord Griffiths said: ‘What then is meant by the words ‘necessary . . . .
Cited – Secretary of State for The Home Department v AP (No. 2) SC 23-Jun-2010
The claimant had object to a Control order made against him and against a decision that he be deported. He had been protected by an anonymity order, but the Court now considered whether it should be continued.
Held: AP had already by the . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .
Cited – X Ltd v Morgan-Grampian (Publishers) Ltd HL 1990
In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a . .

Cited by:
Cited – NNN v Ryan and Others QBD 20-Mar-2013
The Court gave its reasons for requiring the delivery up of materials said to be confidential and making an order for anonymity, finding that the claimant had been blackmailed. . .

Lists of cited by and citing cases may be incomplete.

Media, Family, Litigation Practice

Updated: 12 January 2022; Ref: scu.424970

Lady Dowager Forbes v Lord James Forbes: HL 29 Jan 1765

Reduction – Error in Essentials of Agreement – Lifkrenter’s Powers and Liabilities – Bona Fide Consumption.-
Where the husband and wife, by marriage articles, conveyed the estate to themselves, and the survivor of them, for the wife’s liferent use allenarly, reserving power to grant provision to daughters to the extent of andpound;3000, and failing the husband exercising this power to the wife: Held, (1 st,) That though the husband had granted provisions to his daughters in exercise of this faculty, to the extent only of andpound;2000, that the wife was entitled, after his death, to execute an additional bond to the extent of andpound;1000. (2 nd), That where the liferentrix had entered into agreements restricting her liferent rights, through error in essentials, that she was still entitled to claim her rights as originally settled. (3 d), That bona fide percepti et consumpti was not pleadable, and the respondent accountable, for the whole rents, feuduties, and casualties since the date when her right accrued, reversing the judgment of the Court of Session: But, (4 th), That she was liable for the interest of the heritable debts on Puttachie and Pittendriech.

[1765] UKHL 2 – Paton – 84
Bailii
Scotland

Family, Trusts

Updated: 11 January 2022; Ref: scu.560603

William Dallas v James Dallas: HL 4 Feb 1765

Ratification – Reduction – Facility – Marriage Contract – Father’s Powers – Provisions to Children – Second Marriage.-
A father, in his son’s contract of marriage, conveyed his estate to his son and his intended wife in liferent, and the heir male of that marriage in fee. The son thereafter executed an entail of the estate to George, his eldest son, and heir male of the marriage, and a series of other heirs substitutes, reserving power to burden and alter. After his wife’s death, he married a second time, and provided in the marriage settlement for the issue of the second marriage out of separate estate. He thereafter executed additional provisions in favour of the children of the second marriage, and burdened also the estate conveyed to the heir male of the first marriage, as well as granted a lease of the same for 40 years. The heir male of the first marriage was facile, and had been prevailed on to ratify the entail, and these subsequent deeds of provision. Held, that his son was not barred by his father’s deeds of ratification from challenging the entail and provisions charged on the estate in favour of the second marriage; these ratifications having been obtained from a weak and facile person.

[1765] UKHL 2 – Paton – 91, (1765) 2 Paton 91
Bailii

Scotland, Family

Updated: 11 January 2022; Ref: scu.560609

Sir William Hamilton v John Wallace of Craigie: SCS 23 Feb 1561

Gif ony man havand ane lauchful wife, and in like manner lauchful bairns gottin of his bodie, the quhilkis bairnis ar all forisfamiliat befoir his deceis, all his movabill gudis and geir pertenand to him the time of his deceis, sould be dividit equallie in twa partis, viz. the deidis part, and the wife’s part; because the bairnis, beand forisfamiliat, sould have na part nor portioun thairof.

[1561] Mor 8178
Bailii
Scotland

Family

Updated: 10 January 2022; Ref: scu.560402

AB v CD: FD 11 Jan 2016

Application by a former husband to set aside a consent order. The basis of his application is an allegation that, at the time of the agreement, his former wife failed to make full and frank disclosure in relation to a company of which she was both a director and shareholder. It is his case that the non-disclosure upon which he relies was a material factor in that he entered into the agreement to compromise his financial claims arising in the divorce proceedings on the basis of incomplete (and, on his case, misleading) information.

Roberts J
[2016] EWHC 10 (Fam)
Bailii
England and Wales

Family

Updated: 10 January 2022; Ref: scu.560250

Pajic v Croatia: ECHR 23 Feb 2016

The applicant alleged discrimination on the grounds of her sexual orientation in obtaining a residence permit in Croatia, contrary to Articles 8 and 14 of the Convention.

68453/13 (Judgment (Merits and Just Satisfaction) : Court (Second Section)), [2016] ECHR 203
Bailii
European Convention on Human Rights
Human Rights
Cited by:
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.

Human Rights, Family, Discrimination

Updated: 10 January 2022; Ref: scu.560201

Rapp v Sarre (Formerly Rapp): CA 18 Feb 2016

‘appeal against an ancillary relief order made by HHJ Everall QC on 21 January 2015. The appellant is the husband, who contends that the judge was wrong to divide the capital assets unequally between himself and the wife, giving her a greater share and, on his case, giving her assets which were more liquid and less risky than those which he was to have. He also advances some more detailed points about the judge’s quantification of the assets and thus the net effect of the award. In addition, he is critical of the judge for relying on his drug addiction as a factor in the assessment of the appropriate order.’

Patten, Black LJJ, Baker J
[2016] EWCA Civ 93
Bailii
England and Wales

Family

Updated: 10 January 2022; Ref: scu.560175

LS v PS: FD 23 Dec 2021

Application by an intervener in financial remedy proceedings for disclosure of material and information which is currently subject to ‘without prejudice’ privilege. The intervener, Q, is a corporate entity which provides litigation funding to parties involved in family and probate proceedings. It has lent funds to LS, the applicant wife in these financial remedy proceedings. Her debt to Q with accrued interest currently stands at almost pounds 1 million. For these purposes the precise figure matters not although it represents a significant debt in the context of the financial remedy case which was agreed to be informed by an assessment of the wife’s needs as opposed to a full sharing claim.

The Honourable Mrs Justice Roberts
[2021] EWHC 3508 (Fam)
Bailii
England and Wales

Family, Litigation Practice

Updated: 10 January 2022; Ref: scu.670695

Steinfeld and Another v The Secretary of State for Education: Admn 29 Jan 2016

The claimant heterosexual couple wanted to enter into a civil partnership rather than to marry.
Held: The request for judicial review failed. On the authorities, the bar did not fall within the scope or ambit of Article 8. The appellants could marry and thus enter into a legal relationship according full protection to all the core values of Article 8: ‘This is not a case where the appellants cannot achieve formal state recognition of their relationship, with all the rights, benefits and protections that flow from such recognition: on the contrary it is open to them to obtain that recognition by getting married.’
Any interference with their private life was even more tenuous as there is no evidence that they were subjected to humiliation, derogatory treatment or any other lack of respect for their private lives: ‘The only obstacle to [the appellants] obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience.’ There was, she held, no indication in the cases from the ECHR that there was interference with the core values of Article 8 in these circumstances.
If she was wrong about the ambit of Article 8, the Secretary of State was justified under Article 14 in maintaining the bar until more years’ data was available on the formation and dissolution of CPs. This would put the Secretary of State in a better position to evaluate the impact of the 2013 Act on CPs before taking any legislative steps, and the appellants were not disadvantaged.

Andrews DBE J
[2016] EWHC 128 (Admin), [2016] WLR(D) 64, [2016] 1 FLR 1034, [2016] Fam Law 296, [2016] 2 FCR 606, [2016] 4 All ER 421, [2016] 4 WLR 41, [2016] HRLR 8
Bailii, WLRD
Civil Partnership Act 2004 1, European Convention on Human Rights 8 14
England and Wales
Cited by:
Appeal from – 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 . .
At Admn – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Family, Human Rights

Updated: 09 January 2022; Ref: scu.559388

FRB v DCA: FD 28 Oct 2019

Application by the defendant wife (W) to strike out the claimant husband’s (H) claim for damages to be assessed in respect of W’s deceit. The parties to these proceedings are respectively the same husband and wife as in the proceedings AB v CD (No.1 and No.2)

The Honourable Mr Justice Cohen
[2019] EWHC 2816 (Fam), [2019] WLR(D) 656, [2020] 2 WLR 671, [2020] Fam 211, [2020] 1 FLR 605, [2020] 1 FCR 371
Bailii, WLRD
England and Wales

Family

Updated: 09 January 2022; Ref: scu.648678

Chai v Peng: CA 12 Jun 2015

Application to adjourn full hearing of appeal.

McFarlane LJ
[2015] EWCA Civ 790
Bailii
England and Wales
Citing:
See Also – Chai v Peng FD 13-Mar-2014
Application for further maintenance pending suit. . .
See Also – Chai v Peng FD 1-May-2014
The court was severely critical of the practice in divorce proceedings of uissuing a petition for divorce but then not serving it for some time. Holman J referred to a colourful metaphor deployed by leading counsel for the husband: ‘To file [a . .
See Also – Chai v Peng (1) FD 17-Oct-2014
. .
See Also – Chai v Peng (2) FD 17-Oct-2014
. .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 January 2022; Ref: scu.558706

Mrs Magdalen Cochrane, Alias Kennedy v Mrs Jean Campbell, and Jean Her Daughter: HL 31 Jan 1753

Husband and Wife.-
A man having been married privately to A, and lived with her as his wife in public for twenty years, and procreated several children; B after his death alleged a previous clandestine marriage with him. Mutual declarators were raised, and strong circumstances adduced by B to establish the first marriage; yet as she had entirely concealed her pretended marriage during her husband’s lifetime, and had several times been in company with him and A together, and owned her as his wife, it was found that she had not proved her prior marriage.

[1753] UKHL 1 – Paton – 519
Bailii
Scotland

Family

Updated: 09 January 2022; Ref: scu.558210

P v P (Transgender Applicant for Declaration of Valid Marriage): FD 20 Nov 2019

Application for a declaration pursuant to section 55(1)(a) of the Family Law Act 1986; the declaration sought is that a marriage which was conducted on St Valentine’s Day in 2009, between AP and JP, is a valid marriage.

The Honourable Mr Justice Cobb
[2019] EWHC 3105 (Fam)
Bailii
Family Law Act 1986 55(1)(a)
England and Wales

Family

Updated: 09 January 2022; Ref: scu.648700

Henderson v Henderson: SCS 25 Oct 1889

The Married Women’s Property (Scotland) Act 1881 permits parties married before July 18, 1881, to declare by mutual deed that the wife’s whole estate, including such as may have previously come to the husband in right of his wife, shall be regulated by the Act; and provides that upon registration and advertisement of this deed as specified, the said estate shall be vested in the wife, and subject to the provisions of the Act.
A woman who possessed the stock and plenishing of a farm and the furnishings of an inn was married in February 1881. The spouses voluntarily separated in November 1882, and the husband allowed his wife to retain possession of the stock and plenishings of the farm and inn. He made no allowance for aliment. In 1888 the spouses were mutually divorced.
Held that the stock and furnishings which had passed to the husband jure mariti remained his property, as no mutual deed under sec. 4 of the Married Women’s Property Act of 1881 had been executed, and as there was no evidence of intention on the husband’s part between 1882 and 1888 to re-transfer this property to his wife.

[1889] SLR 27 – 23
Bailii
Scotland

Family

Updated: 08 January 2022; Ref: scu.614250

A v B: SCS 10 Jul 1534

Ane bastard deceissand, and leivand behind him bairnis Iauchfullie gottin of his bodie, beand of les age and pupillis, without ony tutor testamentar, left be thair father to thame, in his testament or latter will, the King may give to thame ane tutor, because thay cannot have ony agnat or kinnisman of the fatheris side.

[1534] Mor 16219
Bailii

Scotland, Wills and Probate, Family

Updated: 08 January 2022; Ref: scu.556666

Janet Stedman, Wife of James Stedman of Kinross v James Stedman of Kinross: HL 6 Feb 1742

HL Divorce – Remissio Injuriae. –
Though a husband, who raises an action of divorce against his wife, on the ground of adultery, does not withdraw himself from his house, where his wife chooses to remain, after the summons is served on her, but eats and sleeps separately, under the same roof, he is not held to cohabit with, or to be reconciled to her, so as to raise the plea of remissio injuri as a bar to the action; and, therefore, that plea was, in this case, repelled.

[1742] UKHL 6 – Paton – 675
Bailii
Scotland

Family

Updated: 07 January 2022; Ref: scu.556479

Sanam v National Crime Agency: CA 2 Dec 2015

‘This appeal concerns the competing rights of (1) the National Crime Agency (‘the NCA’) to obtain a civil recovery order (‘a CRO’) under Part 5 of the Proceeds of Crime Act 2002 (‘POCA’) in respect of property derived from unlawful conduct and (2) a wholly innocent former wife of the criminal, who would be left without any assets if such an order was made, to resist such an order on the grounds that it would be contrary to her rights under Article 1 of the First Protocol (‘A1P1’) to the European Convention on Human Rights (‘the Convention’).’

Sir Terence Etherton Ch HC, Patten, Christopher Clarke LJJ
[2015] EWCA Civ 1234
Bailii
Proceeds of Crime Act 2002, European Convention on Human Rights A1P1
England and Wales

Family, Criminal Sentencing, Human Rights

Updated: 07 January 2022; Ref: scu.556267

Bostock v Bostock: FD 2 Dec 1949

H petitioned for divorce, alleging desertion. W denied the allegation , but cross petitioned on the same basis. He sought to bring in evidence the contents of a discussion between H and W and their respective solicitors.
Held: The evidence was admissible (though the judge applying that evidence found for W).
Although a meeting between the parties to a matrimonial dispute in the presence of a probation officer must be taken to be without prejudice when that meeting has been arranged for the purpose of attempting to effect a reconciliation, an interview between the parties and their respective solicitors with a similar purpose in view is not to be taken to be without prejudice if it is not specifically stated so to be; and evidence of what occurred at such a meeting may accordingly be given notwithstanding objection by one of the parties

Ormerod J
[1950] 1 All ER 25, [1950] P 154, 114 JP 59, 66 TLR 339, 48 LGR 423
England and Wales

Family, Evidence

Updated: 07 January 2022; Ref: scu.670952

Ramadani v Ramadani: CA 12 Nov 2015

The present appeal requires this court to consider, apparently for the first time, the jurisdiction of a court in England and Wales to entertain an application for spousal maintenance in the context of Council Regulation (EC) 4/2009 (‘The Maintenance Regulation’) following previous proceedings in another EU member state.

Black, McFarlane, Sales LJJ
[2015] EWCA Civ 1138
Bailii
England and Wales

Family, European

Updated: 06 January 2022; Ref: scu.554613

Dame Margaret Houston, Widow of Sir John Houston, Bart, Assignee and Executrix of Dame Helenor Schaw, The Mother of The and v Sir John Schaw, Bart: HL 20 Apr 1726

Proving the Tenor – Presumption – Mutual Obligation – In an action by a mother against a son for proving the tenor of a deed executed by her during her husband’s life, it is found that the pursuer’s having the disposition cancelled in her hands, and never ratifying the same judicially, presumed that it was cancelled by herself.
This cancelling dissolved the obligations of a bond, granted by her husband in consideration of said disposition.
In regard the pursuer’s counsel did not deny that the cancelled deed was in her hands, and refused to give their oaths of calumny thereon, the defender is assoilzied.

[1726] UKHL Robertson – 561, (1726) Robertson 561
Bailii
Scotland

Family

Updated: 05 January 2022; Ref: scu.554226

John Allardice, Merchant In Campvere v Jane Smart, Widow and Executrix of The ‘S Father, for Herself and Her Children: HL 12 Feb 1722

Provisions to Heirs and Children – A special provision, in a marriage contract, of sums of money to be laid out on land or other good security, and also of conquest in lands, heritages, fishings, sums of money and others, to the heirs of the marriage, went to all the children, and not to the eldest son only.
A discharge of provisions granted by two children to their father, in consideration of a certain sum of money, paid to them, operated in his favour with regard to the remainder of their provisions, and not in favour of another child, who did not discharge.
Fiar – A house, part of the conquest of a first marriage, is disponed to a person and his wife in conjunct fee and life-rent, and to the bairns of the marriage in fee, whom sailing, to the heirs of the husband: the husband being fiar might settle the life-rent thereof on a second wife.

[1722] UKHL Robertson – 399, (1722) Robertson 399
Bailii

Scotland, Family

Updated: 05 January 2022; Ref: scu.553735

Charlotte Marchioness Dowager of Annandale v James Marquis of Annandale: HL 15 Dec 1722

Provisions to heirs and children – Husband and wife – In a contract of marriage with a first wife, a person obliges himself to settle his estate on the heirs of the marriage; by a procuratory of resignation, executed in same terms, he reserved power to grant provisions to a second wife and younger children, on which infeftment followed; and by another deed he afterwards restricted his right of granting provisions to second wife, and children, to the extent of 100,000 l. Scots; After a second marriage, he grants a bond to a second wife for an annuity or jointure of 1000 l. sterling: but made no provisions for children of the second marriage. This second wife in a question with the heir of the first marriage, is declared to have the right to her jointure, till she drew thereout the sum of 100,000 l. Scots.
Registration – A deed restricting an unlimited power of granting provisions to a second wife and younger children, which unlimited power was contained in infeftments upon record, is found valid, though not registered, in a question between the heir and a second wife.

[1722] UKHL Robertson – 411, (1722) Robertson 411
Bailii

Scotland, Family

Updated: 05 January 2022; Ref: scu.553739

William Morison, of Preston Grange, Esq; v Sir William Scott of Thirlestayn, William Nisbet of Dirleton, and John Scott of Harden, A Minor, By His Guardian: HL 19 Feb 1720

Husband and Wife – A bond, with a clause of annualrent is granted blank in the creditor’s name, but delivered to a wife, during the subsistence of her marriage: the husband entails his real estate on the grantor of the bond, and also conveys to him all his personal estate, but was not privy to said bond; in a competition between the executor of the husband, and the executor of the wife, the husband’s executor is preferred to said bond: and the wife’s executor is ordered to refund what had been paid to her, in her widowhood.
General Disposition – A general disposition of a man’s personal estate, made in favour of one who had, without the husband’s knowledge, granted a bond to the wife did not release this bond.

[1720] UKHL Robertson – 269, (1720) Robertson 269
Bailii
Scotland

Family, Trusts

Updated: 05 January 2022; Ref: scu.553641

David Gregory of Kinnairdy v James Anderson Grazier In Aberdeen: HL 24 Jun 1716

Donatio inter virumet Uxorem – During the subsistence of a marriage a wife and her sister, who have an equal right to a bond, convey the same to the husband. He afterwards makes his will, appointing his wife executrix and universal legatee, for behoof of the grandchildren. After the death of the husband, the grant formerly made by her to him was not revocable as a donatio inter virum et uxorem.
Prescription – The prescription of 40 years not to be counted, from the date of an assignment of a bond, but from the time of receiving the money thereon.
Onerous cause – An assignment of a bond, bearing to be for onerous cause, from the circumstances of parties as executrix and trustee, found not to prove the onerous cause of the assignment in a question near 50 years from the date thereof.
Trust – A discharge granted by an executrix to a manager for her under a will, who had a salary, or all his receipts and intromissions, in general terms, was not sufficient to discharge him from the intromission with a bond, which the deceased disponed to the widow, his executrix, for the good of his grand-children.

[1716] UKHL Robertson – 178, (1716) Robertson 178
Bailii

Family, Wills and Probate, Scotland

Updated: 04 January 2022; Ref: scu.553495

Gohil v Gohil: SC 14 Oct 2015

The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s application to set aside a financial order in divorce proceedings on the ground of a fraudulent non-disclosure of resources on the part of the other spouse?’
Held: Even if he had referred only to the evidence admissible before him, Moylan J would still properly have found the husband to have been guilty of material non-disclosure in 2004; that his order should therefore be reinstated; and that the wife’s claim for further capital provision should therefore proceed before him. The High Court must have jurisdiction to set aside a previous financial relief order, because the higher courts were not appropriate places to undertake the factual investigations required to found such an order.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hodge
[2015] UKSC 61, [2015] 2 FLR 1289, [2016] 1 All ER 685, [2015] 3 FCR 497, [2016] AC 849, [2015] 3 WLR 1085, [2015] WLR(D) 407, [2015] Fam Law 1459, UKSC 2014/0200
Bailii, Bailii Summary, WLRD, SC, SC Summary
Matrimonial and Family Proceedings Act 1984 31F(6)
England and Wales
Citing:
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
At FD – Gohil v Gohil FD 25-Sep-2012
The parties had divorced and financial relief settled. W now applied to have the order set aside on the grounds of alleged serious material non-disclosure, fraud and misrepresentation by the husband. W had attended his later trial and obtained much . .
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
See Also – Crown Prosecution Service and Another v Gohil CA 26-Nov-2012
The CPS had obtained evidence through letters of request. Mr and Mrs Gohil had previously divorced and reached a financial settlement. The evidence apparently disclosed further substantial assets which W said had not been disclosed in the settlement . .
Appeal from – Gohil v Gohil (No 2) CA 13-Mar-2014
The parties had agreed financial provision on their divorce, but W subsequently discovered what she said was material non-disclosure by H. The court was now asked whether a court of first instance had jurisdiction to set aside a final financial . .
Cited – Robinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
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 – 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 . .
Cited – Regina v Inland Revenue Commissioners, Ex parte T C Coombs and Co HL 1991
The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax . .
Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Cited – Allied Fort Insurance Services Ltd and Others v Ahmed and Another CA 30-Jul-2015
The claim was for damages for breach of agency, breach of trust and/or fraudulent misrepresentation; accounts and inquiries into the dealings of all the defendants knowingly in receipt of money had and received by the defendants to Creation’s use in . .

Cited by:
See Also – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .

Lists of cited by and citing cases may be incomplete.

Family, News

Updated: 04 January 2022; Ref: scu.553307

Matouskova: ECJ 6 Oct 2015

Judgment – Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – Article 1(1)(b) – Substantive scope – Inheritance settlement agreement between the surviving spouse and minor children represented by a guardian ad litem – Classification – Requirement for approval of such an agreement by the court – Measure relating to parental responsibility or measure relating to succession

C-404/14, [2015] EUECJ C-404/14
Bailii
European

Children, Family, Wills and Probate

Updated: 04 January 2022; Ref: scu.553099

BR v VT: FD 2 Oct 2015

The court considered the existence of powers to make an order requiring a spouse to give possession of a property to support an order for its sale in advance of a final ancillary relief order.

Mostyn J
[2015] EWHC 2727 (Fam)
Bailii
England and Wales

Family

Updated: 04 January 2022; Ref: scu.552888

Coman and Others v Inspectoratul General Pentru Imigrari and Others: ECJ 11 Jan 2018

(Opinion) Reference for a preliminary ruling – Citizenship of the Union – Directive 2004/38/EC – Article 2(2)(a) – Concept of ‘spouse’ – Right of citizens of the Union to move and reside within the territory of the Union – Marriage between persons of the same sex – Marriage not recognised by the host State – Article 3 – Concept of ‘[other] family members’ – Article 7 – Right of residence for more than three months – Articles 7 and 21 of the Charter of Fundamental Rights of the European Union
The word ‘spouse’ in article 2(1)(a) must be given an autonomous meaning and applies to a third country national of the same sex as the citizen of the European Union to whom he or she is married.

Advocate General Wathelet
[2018] EUECJ C-673/16 – O, ECLI:EU:C:2018:2
Bailii
European
Citing:
Request – Coman and Others v Inspectoratul General Pentru Imigrari and Others ECJ 17-Mar-2017
Citizenship of the Union – Fundamental rights – Freedom of establishment – Principles, objectives and tasks of the Treaties : Application . .

Cited by:
Opinion – Coman and Others v Inspectoratul General Pentru Imigrari and Others ECJ 5-Jun-2018
Reference for a preliminary ruling – Citizenship of the Union – Article 21 TFEU – Right of Union citizens to move and reside freely in the territory of the Member States – Directive 2004/38/EC – Article 3 – Beneficiaries – Family members of the . .
Cited – SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .

Lists of cited by and citing cases may be incomplete.

Family, Human Rights

Updated: 04 January 2022; Ref: scu.654513

M v D (Family Law Act 1996 : Meaning of ‘Associated Person’): FD 21 May 2021

Appellant’s application for a non-molestation injunction pursuant to s.42 of the Family Law Act 1996 – important point of principle or practice, namely the meaning of the term ‘associated person’ in of s. 62(3) of the Act.

The Honourable Mr Justice Macdonald
[2021] EWHC 1351 (Fam), [2021] WLR(D) 329, [2021] 1 WLR 5724
Bailii, WLRD
Family Law Act 1996 42 62(3)
England and Wales

Family

Updated: 04 January 2022; Ref: scu.663812

Bohez v Wiertz: ECJ 9 Sep 2015

ECJ Judgment – Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 44/2001 – Articles 1(2) and 49 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Matters excluded – Family law – Regulation (EC) No 2201/2003 – Article 47(1) – Jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility – Judgment concerning rights of access which imposes a periodic penalty payment – Enforcement of that penalty payment

A. Tizzano, P
ECLI:EU:C:2015:563, C-4/14, [2015] EUECJ C-4/14
Bailii
Regulation (EC) No 44/2001, Regulation (EC) No 2201/2003 47(1)

European, Family

Updated: 03 January 2022; Ref: scu.552082

Oliari And Others v Italy (LS): ECHR 21 Jul 2015

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of legal recognition of same-sex partnerships: violation
Facts – The applicants are three couples living in stable same-sex relationships who were not allowed to publish marriage banns because the Italian Civil Code provided that the spouses had to be of the opposite sex. Following an appeal by the first couple, the appeal court made a referral to the Constitutional Court regarding the constitutionality of the relevant legislation. In April 2010 the Constitutional Court declared the applicants’ constitutional challenge inadmissible, after finding that the right to marriage, as guaranteed by the Italian Constitution, did not extend to homosexual unions and was intended to refer to marriage in its traditional sense. At the same time, that Constitutional Court pointed out that it was for the Parliament to regulate, in time and by the means and limits set by law, the juridical recognition of the rights and duties pertaining to same-sex couples. The appeal was consequently dismissed.
Law – Article 8: The Court had already held in previous cases that relationships of cohabitating same-sex couples living in stable de facto partnerships fell within the notion of ‘family life’ within the meaning of Article 8. It also acknowledged that same-sex couples were in need of legal recognition and protection of their relationship, as both the Parliamentary Assembly and the Committee of Ministers of the Council of Europe had further underlined.
The Court considered that the legal protection currently available in Italy to same-sex couples failed to provide for the core needs relevant to a couple in a stable committed relationship. Whereas registration of same-sex unions with the local authorities was possible in about 2% of municipalities, this had a merely symbolic value and did not confer any rights on same-sex couples. Since December 2013 same-sex couples had had the possibility of entering into ‘cohabitation agreements’, which were however rather limited in scope. They failed to provide for some basic needs fundamental to the regulation of a stable relationship between a couple, such as mutual material support, maintenance obligations and inheritance rights. Moreover, such agreements were open to any cohabiting persons which meant that they did not primarily aim to protect couples. Furthermore, they required the couple concerned to be cohabiting, whereas the Court had already accepted that cohabitation was not a prerequisite for the existence of a stable union between partners given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.
Hence there existed a conflict between the social realities of the applicants living openly as couples, and their inability in law to be granted any official recognition of their relationship. The Court did not consider it particularly burdensome for Italy to provide for the recognition and protection of same-sex unions and considered that a form of civil union or registered partnership would allow them to have the relationship legally recognised which would be of intrinsic value for the persons involved.
The Court further noted a trend among Council of Europe member States towards legal recognition of same-sex couples, with 24 of the 47 member States having legislated in favour of such recognition. Moreover, the Italian Constitutional Court had pointed out the need for legislation to recognise and protect same-sex relationships, but the Italian legislature had for a long time failed to take this into account thus potentially undermining the authority of the judiciary and leaving the individuals concerned in a situation of legal uncertainty. Such calls by the Italian courts reflected the sentiments of a majority of the Italian population who, according to recent surveys, supported legal recognition of homosexual couples. The Italian Government had not denied the need for legal protection of such couples and had failed to point to any community interests justifying the current situation.
In view of the foregoing, the Court found that Italy had failed to fulfil its obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their union. To find otherwise, the Court would have had to be unwilling to take note of the changing conditions in Italy and reluctant to apply the Convention in a way which was practical and effective.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 each in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

18766/11 and 36030/11 – Legal Summary, [2015] ECHR 752
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Oliari And Others v Italy ECHR 21-Jul-2015
The claimants complained of the ban in Italy on the recognition of same sex relationships. Despite several rulings of the Italian Constitutional Court that they had a constitutional right to have their relationships recognised by the law, the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Family

Updated: 03 January 2022; Ref: scu.552055

London Borough of Southwark v P and Others: CoP 20 Apr 2015

Application made both in the Court of Protection and for a Forced Marriage Protection order in the High Court (Family Division). It concerns P who was born on a date in 1986 and is aged 28 years. There is a dispute as to the extent to which he lacks capacity to litigate and capacity to consent to marriage or sexual relations.

Moor J
[2015] EWCOP 40
Bailii
England and Wales

Family, Health

Updated: 03 January 2022; Ref: scu.551311

Maistrellis v Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton: ECJ 16 Jul 2015

ECJ Judgment – References for a preliminary ruling – Social policy – Directive 96/34/EC – Framework agreement on parental leave – Clause 2.1 -Individual right to parental leave on the grounds of the birth of a child -National legislation denying the right to such leave for a staff member whose wife does not work – Directive 2006/54/EC – Equal treatment of men and women in matters of employment and occupation – Articles 2(1)(a) and 14(1)(c) – Working conditions – Direct discrimination

C-222/14, [2015] EUECJ C-222/14
Bailii
Directive 96/34/EC

European, Family, Employment

Updated: 03 January 2022; Ref: scu.550991

Singh And Others v Minister for Justice and Equality: ECJ 16 Jul 2015

ECJ Judgment – Reference for a preliminary ruling – Directive 2004/38/EC – Article 13(2)(a) – Right of residence of family members of a Union citizen – Marriage between a Union citizen and a third-country national – Retention of the right of residence of a third-country national after the departure of the Union citizen from the host Member State, followed by divorce – Article 7(1)(b) – Sufficient resources – Taking into account the resources of the spouse who is a third-country national – Right of third-country nationals to work in the host Member State in order to contribute to obtaining sufficient resources

C-218/14, [2015] EUECJ C-218/14, [2015] WLR(D) 312, ECLI:EU:C:2015:476
Bailii, WLRD
Directive 2004/38/EC 1392)(a)

European, Family, Immigration

Updated: 03 January 2022; Ref: scu.550995

Re Y (A Minor : Wardship): FD 17 Mar 2015

Application for wardship – Y thought to be at risk within family committed to Jihad in Syria.

Hayden J
[2015] EWHC 2098 (Fam)
Bailii
England and Wales
Cited by:
See Also – Re Y (A Minor : Wardship) FD 23-Apr-2015
Application concerning a young man, Y, who is 16 years of age. The local authority were seeking permission to make Y a ward of court and, either alternatively or in addition, to seek to protect him under the inherent jurisdictional powers of the . .

Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 03 January 2022; Ref: scu.550907

Oliari And Others v Italy: ECHR 21 Jul 2015

The claimants complained of the ban in Italy on the recognition of same sex relationships. Despite several rulings of the Italian Constitutional Court that they had a constitutional right to have their relationships recognised by the law, the Italian state had failed over some thirty years to provide a legal means for them to obtain this recognition.
Held: Italy had failed to fulfil its obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their union. To find otherwise, the Court would have had to be unwilling to take note of the changing conditions in Italy and reluctant to apply the Convention in a way which was practical and effective.
For the purposes of a complaint under Article 14 taken with Article 8, the applicants did not need to show that the action of the state violated their rights under Article 8, but only that their complaint fell within the ‘ambit’ or scope of Article 8: ‘As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter’

18766/11 36030/11 – Chamber Judgment, [2015] ECHR 716
Bailii
European Convention on Human Rights 8 14
Human Rights
Citing:
Legal Summary – Oliari And Others v Italy (LS) ECHR 21-Jul-2015
ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of legal recognition of same-sex partnerships: violation
Facts – The . .

Cited by:
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.

Human Rights, Family, Discrimination

Updated: 03 January 2022; Ref: scu.550729

Eve v Spratt: CA 16 Apr 2002

W sought leave to appeal against the refusal in an ancillary relief application to award her any maintenance.

Butler-Sloss LJ P
[2002] EWCA Civ 580
Bailii
England and Wales
Citing:
Cited – Cordle v Cordle CA 15-Nov-2001
The former practice in ancillary relief applications where a circuit judge hearing an appeal from a district judge could admit new evidence and hear the case de novo should not survive the new rules, and should cease. An appeal to the circuit judge . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 January 2022; Ref: scu.217041

R v R: CA 24 Jul 2015

The court was asked: ‘Does the order of Moor J against the appellant husband to pay in russia interim maintenance to his wife unlawfully cirumvent prohibitions in Ukrainian sanctions legislation to which the husband is subject?’

Arden, Ryder, Briggs LJJ
[2015] EWCA Civ 796
Bailii
Council Regulation (EU) No 269/2014, Ukraine (European Union Financial Sanctions) (No 2) Regulations 2014
England and Wales

Family, International, Crime

Updated: 02 January 2022; Ref: scu.550590