Category: Family

Tanda-Muzinga v France: ECHR 10 Jul 2014

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Delays and lack of transparency in family reunification proceedings: violation
Facts – In the year 2000 the applicant, a Congolese national, was granted refugee status under the mandate of the Office of the United Nations High Commissioner for Refugees in Cameroon (UNHCR Cameroon). According to his certificate of refugee status, he was accompanied by his wife, who also had such a certificate, and by his children Vanessa and Michelle. The couple had a third child, Benjamin, who was born in Yaounde (Cameroon) in 2004, but the applicant was absent when his son was born, having left Cameroon in order to apply for asylum in France, where he obtained refugee status in 2007. He then applied for long-stay visas for his wife and his three children for the purposes of family reunification. In May 2008, having received no news since completing the application to the French Consulate in Cameroon three months previously, the applicant commenced legal proceedings. It was only in August of the same year, during a hearing, that he learnt that the birth certificates of Benjamin and Michelle were being contested. In the context of another application the Government argued that the applicant had abandoned his family. At the hearing concerning the applicant’s appeal on points of law to the Conseil d’Etat, the ‘public rapporteur’ suggested in his closing arguments, which were not available in writing, that the applicant should seek judicial rectification in Cameroon of the children’s civil status documents. Following difficulties encountered by the applicant’s wife in obtaining such rectification, the Consulate again refused to issue the visas. Further checks carried out in 2010 established that Benjamin’s birth certificate had been authenticated but that the doubtful authenticity of the birth certificate produced for Michelle – which had been double-checked – had prompted the consular authorities to maintain their refusal to issue visas to the whole family. After the Court had given notice of the application to the Government, the urgent-applications judge ordered a stay of execution of the implicit refusal, on the ground that no reasons had been given. In November 2010 UNHCR Cameroon’s lawyer sent the applicant and the French authorities the original copy of a judgment of the Yaounde tribunal de grande instance of 3 June 2010 reissuing Michelle’s birth certificate. In a letter dated January 2011 the Government informed the Court that the French consular authorities, in December 2010, had issued the long-stay visas requested by the applicant’s wife and children.
Law – Article 8
(a) Admissibility – The applicant’s family had been able to join him once the visas were issued. However, this had taken three and a half years after his request for family reunification. The national authorities had not explicitly recognised, either in the domestic proceedings or before the Court, that there had been a violation of the applicant’s Convention rights during that period. Moreover, the decision to issue the visas had not been followed by redress for the purposes of the Court’s case-law. Accordingly, the applicant could still claim to be a ‘victim’ within the meaning of Article 34 of the Convention.
In so far as the family had been reunited, the substantive facts complained of by the applicant had ceased to exist. It remained to be ascertained whether the possibility of leading family life following the issuing of the visas was sufficient to erase the possible consequences of the situation of which the applicant complained. The French authorities had not issued the visas enabling the family to be reunited until three and a half years after the application for family reunification and following six years of separation. During that time the applicant had taken all the necessary legal steps to establish his parent-child relationship with Michelle and Benjamin in order to overcome the obstacles to the reunification of the family, which had also suffered an ordeal as a result of the lengthy separation following his departure from Cameroon. In view of that long period of uncertainty and of the serious consequences of the separation for the applicant and his family, the Court considered that the effects of a possible violation of the Convention had not been sufficiently redressed for it to find that the matter had been resolved within the meaning of Article 37 – 1 (b) of the Convention. Furthermore, in the instant case, the applicant’s children had been minors and had been separated from the applicant for over six years in difficult circumstances following their flight from the Democratic Republic of Congo. This had necessarily entailed serious consequences for which their subsequent reunification had not been sufficient to compensate. The Government’s request for the application to be struck out of the list of cases was therefore also rejected.
(b) Merits – The national authorities were faced with a delicate task when having to assess the authenticity of civil status documents, on account of the difficulties arising in some cases from failings on the part of the civil status authorities in some of the migrants’ countries of origin, and the associated risks of fraud. The national authorities were in principle best placed to establish the facts on the basis of the evidence gathered by or submitted to them, and they therefore had to be allowed a measure of discretion in that regard. Nevertheless, in view of the decision to grant the applicant refugee status and the subsequent recognition of the principle of family reunification, it had been of crucial importance that the visa applications be examined promptly, attentively and with particular diligence. In the circumstances of the case the respondent State had been under an obligation, in order to respond to the applicant’s request, to institute a procedure that took into account the events that had disrupted and disturbed his family life and had led to his being granted refugee status. The Court therefore decided to focus its examination on the quality of that procedure and to do so from the standpoint of the ‘procedural requirements’ of Article 8 of the Convention.
The Court observed at the outset that the applicant’s family life had been discontinued purely because he had fled, out of a real fear of persecution. Accordingly, and contrary to the consistent assertions of the Ministry concerned during the urgent proceedings and the proceedings on the merits, the applicant could not be held responsible for the separation from his family. The arrival of his wife and his children, who were aged three, six and thirteen at the time of the request for reunification and were themselves refugees in a third country, had therefore been the only means by which family life could resume.
It had been essential for the national authorities to take into consideration the applicant’s vulnerability and his particularly difficult personal history, to pay close attention to his arguments of relevance to the outcome of the case, to inform him of the reasons against reunification of the family and, lastly, to take a rapid decision on the visa applications. Owing to the fact that the explanations and reasons that were required by law had not been provided until September 2008, that is, fifteen months after his first request for family reunification, the applicant had not been in a position to understand the precise objections to his plans. The competent authorities, which had been aware of the application to the Cameroonian courts to have Michelle’s birth certificate reissued, had not seen fit to enquire as to the progress of that application when they refused for the second time to issue the visas. Following a further check in 2010 they had eventually found the legal parent-child relationship between the applicant and Benjamin to be established, although this had been contested in the same way as the relationship with his daughter Michelle. The applicant had encountered numerous difficulties in participating effectively in the procedure and putting forward ‘other elements’ of proof of a parent-child relationship, although he had declared his family ties from the start of his asylum application and OFPRA had certified the composition of the family in documents that were deemed to be authentic, immediately after his application for family reunification. Furthermore, UNHCR, convinced of the authenticity of their case, had assisted the applicant and later his family from the time of their flight from the Democratic Republic of Congo until the conclusion of the proceedings. The Ministry of Foreign Affairs of Cameroon had also approved the travel papers of the applicant’s wife, which stated that she was accompanied by her three children, and had subsequently approved Michelle’s travel papers. The applicant had also adduced other evidence of his continuing contact with his family. This had not been without relevance; the applicant could reasonably have expected that it would be seen as attesting to his past family life and that the national authorities would give it due consideration. Lastly, it had taken almost three and a half years for the authorities to cease contesting the parent-child relationship between the applicant and his children. This was excessive, in view of the applicant’s particular circumstances and what was at stake for him in the verification procedure.
All the above factors demonstrated the distressing and apparently hopeless situation of the applicant. The accumulation and protracted nature of the numerous hurdles he encountered during the procedure had left him in a state of severe depression, after he had already undergone traumatic experiences that had been the reason for granting him refugee status.
In view of all these considerations, and notwithstanding the margin of appreciation left to the State in the matter, it was clear that the national authorities had not given due consideration to the applicant’s specific situation and that the decision-making process had not been attended by the guarantees of flexibility, promptness and effectiveness required in order to secure his right to respect for his family life under Article 8 of the Convention. Accordingly, the State had omitted to strike a fair balance between the applicant’s interests and its own interest in controlling immigration.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 EUR in respect of non-pecuniary damage.

2260/10 – Legal Summary, [2014] ECHR 1047
Bailii
European Convention on Human Rights

Human Rights, Family

Updated: 22 December 2021; Ref: scu.537552

Schofield v Schofield: CA 2 Feb 2011

The wife appealed against rejection of her claim under the 1984 Act after the parties had been divorced in Germany. The German court had had no jurisdiction to make an award which took account of the husband’s british army pension.
Held: The appeal was dismissed. Mostyn J in CG had correctly identified the applicable principles.

Thorpe, Leveson, Black LJJ
[2011] EWCA Civ 174, [2011] Fam Law 570, [2011] 1 FLR 2129
Bailii
Matrimonial and Family Proceedings Act 1984
England and Wales
Citing:
Cited – CG v IF FD 12-May-2010
The husband sought an order under section 13 after the parties had been divorced in Switzerland. . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 21 December 2021; Ref: scu.430226

Agbaje v Agbaje: CA 20 Jan 2009

The court was asked as to the operation of section 10 of the 1984 Act where the marriage had been dissolved abroad. W had obtained an order under the 1984 Act though the parties had divorced in Nigeria.
Held: Leave was granted and the Husband’s appeal allowed. Section 16 was to be used purposively,and a court should look to all the circumstances to test whether it was appropriate before making an order. The Act was intended to be used to relieve hardship. Nevertheless, the court must have regard to comity between courts in different jurisdictions.

Ward LJ, Longmore LJ, Jackson LJ
[2009] EWCA Civ 1, [2009] 1 FCR 411, [2009] 1 FLR 987, [2009] 3 WLR 835, [2009] Fam Law 383, [2009] WLR (D) 11
Bailii
Matrimonial and Family Proceedings Act 1984
England and Wales
Citing:
Leave – Akinnoye-Agbaje v Akinnoye-Agbaje CA 15-Jun-2007
Renewed application for leave to appeal against order made under 1984 Act. . .

Cited by:
Appeal from – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 20 December 2021; Ref: scu.280051

Heywood v Heywood: 19 Nov 1860

[1860] EngR 1155, (1860) 29 Beav 9, (1860) 54 ER 527
Commonlii
England and Wales
Citing:
Cited – Tulk v Moxhay 22-Dec-1848
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .

Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 18 December 2021; Ref: scu.285994

Bennett v Bennett: CA 1952

The wife sued for arrears of maintenance payments payable under a deed in consideration for which the wife covenanted not to proceed with the prayers in the petition for maintenance, to consent to their being dismissed, and not to present any further petition for maintenance. The court was asked whether the whole or main consideration moving from the plaintiff wife was a promise or promises purporting to oust the jurisdiction of the court.
Held: Because the agreement was of no effect, it was not consideration for her husband’s agreement and her claim failed. Somervell LJ said: ‘The point here is that the consideration moving from her was a promise not to exercise her right to apply to the court.’ That being the sole or main consideration the covenant sought to be enforced by the wife was void and unenforceable.

Somervell LJ
[1952] 1 KB 249
Scotland
Cited by:
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 December 2021; Ref: scu.259829

Goodinson v Goodinson: 1954

W covenanted that for so long as the weekly payments of maintenance for herself and the child were punctually made, she would not commence or prosecute any matrimonial proceedings against the husband. The husband fell in arrears and she claimed the arrears.
Held: There was ample consideration to support the agreement apart from the covenant not to sue so as to enable the wife to enforce it against the husband.

Somervell LJ
[1954] 2 QB 118
England and Wales
Cited by:
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 December 2021; Ref: scu.259830

Smallman v Smallman: CA 1972

An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the property and that H would pay the children’s school fees and maintenance but this was conditional upon W providing evidence on which H could divorce her and on ‘the approval of the court.’ W gave the confession but H then sought to resile from the agreement claiming that it was not binding until it had been approved by the court. W proceeded under section 17 and the Registrar held there was a binding agreement but that before the proceeds could be distributed the court must approve it.
Held: Lord Denning MR said: ‘In my opinion, if the parties have reached an agreement on all essential matters, then the clause ‘subject to the approval of the court’ does not mean there is no agreement at all. There is an agreement, but the operation of it is suspended until the court approves it. It is the duty of one party or the other to bring the agreement before the court for approval. If the court approves, it is binding on the parties. If the court does not approve, it is not binding. But, pending the application to the court, it remains a binding agreement which neither party can disavow. Orr L.J. has drawn my attention to a useful analogy. Many contracts for the sale of goods are made subject to an export or import licence being obtained. Such a condition does not mean that there is no contract at all. It is the duty of the seller, or the buyer, as the case may be, to take reasonable steps to obtain a licence. If he applies for a licence and gets it, the contract operates. If he takes all reasonable steps to obtain it, and it is refused, he is released from his obligations. If he fails to apply for it or to do what is reasonable to obtain it, he is in breach and liable to damages.’

Lord Denning MR
[1972] Fam 25
Married Women’s Property Act 1882 17
England and Wales
Cited by:
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Cited – Warwick (Formerly Yarwood) v Trustee In Bankruptcy of Clive Graham Yarwood ChD 13-Sep-2010
The trustee sought to have set aside as an unlawful preference, the payment of 75% of the proceeds of sale of the former matrimonial home to the bankrupt’s wife, saying that the payment had been made after the presentation of the petition. The . .

Lists of cited by and citing cases may be incomplete.

Family, Contract

Updated: 18 December 2021; Ref: scu.259832

Gould v Gould: CA 1970

H told W he would pay her pounds 15 a week as long as he had it. She issued a writ claiming payment of arrears of maintenance due.
Held: The agreement was unenforceable, since it was not sufficiently certain.
Lord Denning MR (dissenting) said: ‘I hold, therefore, that an oral separation agreement by which the husband agrees to pay the wife so much a week is legally enforceable. There is ample consideration for such agreement.’
Edmund Davies LJ thought the agreement was too vague to be enforced but: ‘There can be no doubt that husband and wife can enter into a contract which binds them in law. Peters (Executors) v. Inland Revenue Commissioners [1941] 2 All E.R. 620 and the recent decision of Stamp J. in Merritt v. Merritt, ‘The Times,’ May 15th, 1969, afford examples of this. But it is upon the spouse asserting that such a contract has been entered into to prove the assertion: see the observations of Atkin L.J. in Balfour v. Balfour [1919] 2 K.B. 571, 580 . . In the general run of cases the inclination would be against inferring that spouses intended to create a legal relationship: see Lord Hodson in Pettitt v. Pettitt [1969] 2 W.L.R. 966, 983. The evidence establishing such an intention needs, in my judgment, to be clear and convincing.’
Megaw LJ agreed with Edmund Davies LJ.

Lord Denning MR, Edmund Davies LJ, Megaw LJ
[1970] 1 QB 275
England and Wales
Cited by:
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 December 2021; Ref: scu.259831

Crawford v Jenkins: CA 24 Jul 2014

The parties had divorced but acrimony continued. H now complained of his arrests after allegations from his former wife that he had breached two orders. He had been released and no charges followed. The court had ruled that W’s complaints were protected by immunity.
Held: H’s appeals failed. ‘The policy of the immunity rule applies just as much to a claim in harassment based on such a statement as it does to a claim in defamation. In my judgment Judge Baucher was right to hold that the harassment claim could not be brought on the basis of the complaint to the police or the statements made in support of that complaint. Paragraphs (c) to (e) of the particulars of harassment given in paragraph 76 of the Amended Particulars of Claim must be ignored.’

Beatson, Sharp LJJ, Sir Timothy Lloyd
[2014] EWCA Civ 1035, [2015] 1 All ER 476, [2015] 3 WLR 843, [2016] QB 231, [2014] EMLR 29
Bailii
Protection from Harassment Act 1997
England and Wales
Citing:
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Elsee v Smith 1822
The court considered a claim that a search warrant had been issued for malice. . .
Cited – Evans v London Hospital Medical College and Others 1981
The defendants employed by the first defendant carried out a post mortem on the plaintiff’s infant son. They found concentrations of morphine and told the police. The plaintiff was charged with the murder of her son. After further investigation no . .
Cited – Martin v Watson HL 13-Jul-1995
The plaintiff had been falsely reported to the police by the defendant, a neighbour, for indecent exposure whilst standing on a ladder in his garden. He had been arrested and charged, but at a hearing before the Magistrates’ Court, the Crown . .
Cited – Churchill v Siggers 9-Jun-1854
Lord Campbell CJ explained the basis of tortious liability for bringing proceedings maliciously and without reasonable or probable cause: ‘To put into force the process of the law maliciously and without any reasonable or probable cause is wrongful; . .
Cited – Gilding v Eyre And Another CCP 8-Jul-1861
After getting judgment against the plaintiff for a debt, and substantial repayment of it by him, the defendant issued a writ of execution for the full amount of the debt, in consequence of which the plaintiff was arrested by the sheriff’s officers. . .
Cited – Johnson v Emerson 1871
Cleasby B recognised that the tort of malicious prosecution could be committed in the malicious presentation of a winding up petition. The effect of presentation of such a petition was immediately damaging to the company which was the subject of the . .
Cited – The Walter D Wallet 1893
The vessel was arrested by a defendant who had been, but no longer was, a part owner of the vessel, having forgotten or forgotten the importance of that fact.
Held: Procuring the wrongful arrest of a ship can found a cause of action similar to . .
Cited – Clissold v Cratchley CA 1910
A solicitor had sued out a Writ of fi.fa on an order in favour of his client, unaware that the debt had been paid at the country office of the solicitor, prior to the writ being issued.
Held: An action in tort will be available for setting in . .
Cited – Gibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Congentra Ag v Sixteen Thirteen Marine Sa (‘the Nicholas M’) ComC 15-Jul-2008
Applications for dismissal of interim freezing order and for continuance. Order not set aside. The claim was for a freezing order to support a claim for recovery of damage to goods being transported. The court now considered an allegation that the . .
Cited – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Cited – Halcyon House Ltd v Baines and Others QBD 11-Jul-2014
The judge found that there was only one act which could have amounted to harassment, and since there had to be at least two to amount to a course of conduct he dismissed the claim under the Act.
Submissions were made about the witness immunity . .
Cited – Thomas v News Group Newspapers Ltd and Simon Hughes CA 18-Jul-2001
A civilian police worker had reported officers for racist remarks. The newspaper repeatedly printed articles and encouraged correspondence which was racially motivated, to the acute distress of the complainant.
Held: Repeated newspaper stories . .
Cited – Dowson and Others v Chief Constable of Northumbria Police QBD 20-Oct-2010
Six officers sought damages under the 1997 Act alleging harassment by a senior officer of the defendant.
Held: Simon J set out what a claimant must prove in an harassment claim:
‘(1) There must be conduct which occurs on at least two . .

Lists of cited by and citing cases may be incomplete.

Family, Torts – Other

Updated: 17 December 2021; Ref: scu.535252

Lopez-Guio v Slovakia: ECHR 3 Jun 2014

ECHR Article 8-1
Respect for family life
Lack of participation of a parent in proceedings concerning the return of his child under the Hague Convention: violation
Facts – The applicant, a Spanish national, had a child with a Slovak woman in Spain. A year later the mother took the child to Slovakia. The applicant lodged an application with the Bratislava I District Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the Hague Convention’) and Council Regulation (EC) No. 2201/2003,* complaining that the mother had wrongfully removed the child. After holding two oral hearings at which the child’s court-appointed representative failed to appear, the District Court ordered the child’s return to Spain where the child had its habitual residence. The Bratislava Regional Court upheld the decision and the Supreme Court declared the mother’s subsequent appeal inadmissible. The mother then filed a complaint against the Supreme Court with the Constitutional Court, without the applicant being informed. The Constitutional Court found that the child’s rights had been violated because the child’s representative’s failure to appear had not been a valid reason for ruling on the matter without having the child’s views established. Consequently, the case was remitted to the District Court. In the fresh set of proceedings the District Court interviewed the child and his representative, and, guided by the best interests of the child, ruled that the child was not to be returned to Spain. On appeal, the ruling was upheld by the Bratislava Regional Court.
Law – Article 8: The applicant complained that the Hague Convention proceedings had been arbitrarily interfered with by the Constitutional Court’s judgment. The Court recalled that the State had positive obligations under Article 8 to adopt measures to secure respect for family life, including measures that enable parents to be reunited with their children. In meeting these obligations, the State must strike a fair balance between the competing interests at stake – those of the child, of the two parents and of public order – within the margin of appreciation afforded to it. Moreover, the decision-making process involved must be fair and such as to ensure due respect of the interests safeguarded by Article 8.
Since the applicant was not a party to and had no standing to intervene in the proceedings before the Constitutional Court and, indeed, had had no official means of finding out about the proceedings, the Court found that there had been a complete lack of procedural protection. That lack of protection had been aggravated by the fact that all ordinary and extraordinary remedies against the return order had been exhausted. Consequently, Slovakia had failed to secure to the applicant the right to respect for his family life under Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 19,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
* Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility

10280/12 – Legal Summary, [2014] ECHR 812
Bailii
European Convention on Human Rights

Human Rights, Family, International

Updated: 17 December 2021; Ref: scu.535174

NA v Secretary of State for The Home Department and Another: CA 17 Jul 2014

Appeal from the determination of the Upper Tribunal (Immigration and Asylum Chamber) [2013] UKUT 89 (IAC) as to whether a third country national ex-spouse of a Union citizen must be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC.

Dyson L MR, Sullivan, Sharp LJJ
[2014] EWCA Civ 995
Bailii
Directive 2004/38/EC 13(2)
England and Wales

Immigration, European, Family

Updated: 17 December 2021; Ref: scu.534419

X County Council v M and Others: FD 27 Jun 2014

The council had obtained an order for a child to be removed from the mother at birth. Applications were now made, it being said that the Council had failed properly to give notice of the on-notice hearing and of a complaint by the expert witness that his views had been misrepresented to the court by the Council.

Keehan J
[2014] EWHC 2262 (Fam)
Bailii

Family

Updated: 16 December 2021; Ref: scu.534040

Akhmedova v Akhmedov and Others: FD 2 Oct 2019

[2019] EWHC 2561 (Fam)
Bailii
England and Wales
Cited by:
See Also – Akhmedova v Akhmedov and Others FD 17-Oct-2019
. .
See Also – Akhmedova v Akhmedov and Others FD 12-Jun-2020
applications:
a) an application for disclosure by the Applicant Wife against the Tenth Respondent; and
b) an application by the Tenth Respondent for (i) disclosure from the Applicant Wife in respect of her litigation funding arrangements . .
See Also – Akhmedova v Akhmedov and Others FD 14-Aug-2020
. .
See Also – Akhmedova v Akhmedov and Others FD 18-Aug-2020
Application to vary freezing orders. . .
See Also – Akhmedova v Akhmedov and Others FD 28-Oct-2020
Without notice application by the wife for a search order against the tenth respondent. . .
See Also – Akhmedova v Akhmedov and Others FD 4-Nov-2020
Return date of the search order and forensic imaging order granted without notice . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 15 December 2021; Ref: scu.648671

Taukacs v Taukaca: FD 3 Aug 2015

T appeared following her arrest at Birmingham International Airport pursuant to a ‘location order’ directed to the Tipstaff of the High Court.
Held: The Court ordered her immediate release, and criticised the standard form of wording used for Location Orders.

Holman J
[2015] EWHC 2365 (Fam)
Bailii
England and Wales

Family

Updated: 13 December 2021; Ref: scu.551779

SR v RS: FD 19 Nov 2014

Application for permission to appeal an order that was made by Deputy District Judge Stanton on 8th July 2014 when, in effect, she dismissed the applicant husband’s application for financial provision and directed that he return a Porsche motor car to the respondent wife and imposed a clean break.

Moor J
[2014] EWHC 4305 (Fam)
Bailii
England and Wales

Family

Updated: 12 December 2021; Ref: scu.547108

In re KR (Abduction: Forcible Removal by Parents): FD 1999

The court set out a form for use when inviting the cooperation in securing HM’s return to the jurisdiction of a child taken abroad by her parents for a forced marriage of the police authorities in this country and ‘respectfully requesting and inviting all judicial and administrative bodies and police authorities of the State of Israel to render assistance in establishing the whereabouts of HM and facilitating her return to the jurisdiction.’

Singer J
[1999] 2 FLR 542
England and Wales
Cited by:
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .

Lists of cited by and citing cases may be incomplete.

Children, Family

Updated: 12 December 2021; Ref: scu.450031

A v L: FD 11 Mar 2010

Sir Mark Potter considered the validity of an Egyptian decree obtained in breach of a restraining injunction upon which the court had relied to preserve the status of marriage.
Held: Recognition was refused on the facts.
Sir Mark Potter P (obiter) said: ‘Had I been satisfied, upon a full and thorough examination of the position, that the husband had indeed obtained his Egyptian judgment by dishonestly asserting that he had pronounced a Talaq over the telephone on or about 18 January 2008, I would have had no hesitation in acceding to Mr Howard’s submission. However for reasons already stated I have not felt it right to resolve that question….the terms of section 51(3)(a) are to my mind sufficient and appropriate to cover circumstances such as those which exist in this case and I am satisfied that I should exercise my discretion to refuse recognition of the Egyptian judgment pursuant to the terms of that paragraph. That being so, lacking as I am any detailed submissions as to the ambit of the public policy exception provided for in section 51(3)(c) of the 1986 Act, I decline to refuse recognition on that ground also.’

Sir Mark Potter P
[2010] EWHC 460 (Fam), [2010] 3 FCR 174, [2010] Fam Law 583, [2010] 2 FLR 1418, FD08D02126
Bailii
Family Law Act 1986 51
England and Wales
Cited by:
Cited – Golubovich v Golubovich CA 21-May-2010
The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 12 December 2021; Ref: scu.415939

H v H: FD 12 Dec 2007

The parties disputed the effect of a talaq divorce granted to H in Pakistan. W disputed that notice of the divorce had been served upon her. The notice was not now available.
Held: H’s evidence was credible.

Sumner J
[2007] EWHC 2945 (Fam), [2008] 2 FLR 857
Bailii
Family Law Act 1986 46 51(3) 55
England and Wales
Citing:
Cited – El Fadl v El Fadl FD 2000
The court was asked as to the recognition of a Sharia compliant divorce between Lebanese Muslims. Under the relevant Lebanese 1962 legislation a Talaq was to be pronounced before 2 witnesses, a requirement of most systems of traditional Islamic . .
Cited – Chaudhary v Chaudhary 1985
The Pakistani husband pronounced bare Talaq in Sharia form before witnesses in Kashmir, although administered by Pakistan a territory to which the Muslim Family Ordinance 1961 did not apply. Recognition of the Talaq divorce had been refused by Wood . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 12 December 2021; Ref: scu.408714

Kremen v Agrest (No11): FD 19 Jan 2012

Financial Remedy: Non-Disclosure: Post-Nuptial Agreement

Mostyn J
[2012] EWHC 45 (Fam)
Bailii
Matrimonial and Family Proceedings Act 1984
England and Wales
Citing:
See Also – Kremen v Agrest FD 15-Oct-2010
Application as to payment of funds held where the payer was a fugitive from justice, owing sums in maintenance to the claimant. W applied for an order setting aside a charge granted by H over property. In previous hearing the court had found that H . .
See Also – Kremen v Agrest (No 2) FD 3-Dec-2010
An application was made in ancillary relief case to set aside the transfer of a share in a company said to have been backdated to defeat the court’s jurisdiction.
Held: Mostyn J considered an There was a ‘strong practical reason why the cloak . .
See Also – Agrest and Another v Kremen CA 24-Jan-2011
Application for permission to appeal. . .
See Also – Kremen v Agrest CA 13-Apr-2011
. .
See Also – Kremen v Agrest CA 19-Oct-2011
. .

Cited by:
See Also – Kremen v Agrest CA 5-Feb-2013
. .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2021; Ref: scu.450346

E v E (Financial Provision): FD 1990

The parties had a long marriage. They had acquired or inherited substantial assets, some of which had been placed in trusts. W had left and had affairs. She sought ancillary relief.
Held: The wife’s behaviour was not to be considered as a separate factor under section 25, but was still part of the picture of her contribution to the marriage. The post-nuptial settlement should not be varied to an extent greater than was necessary, and the first consideration remained the welfare of the children. W had persisted in unrealistic valuations of properties, and H had at first failed to disclose assets held in Switzerland. Each had contributed to increased costs and the costs order should reflect this.

Ewbank J
[1990] 20 Fam Law 297, [1990] 2 FLR 233
Matrimonial Causes Act 1973 25(2)(g)
England and Wales

Family, Costs

Updated: 12 December 2021; Ref: scu.235273

Peacock v Peacock: FD 1991

The court considered its ability to vary a consent order, made in 1982 on the divorce, which provided for the sale of the matrimonial home ten years later in 1992 and for the equal division of the proceeds of sale. Periodical payments were to be made to the wife and the two children who remained in the home. In 1984 the parties agreed for the husband to transfer his interest to her, but they were not ad idem because he believed that she was releasing him from all future payments not only to her but also to the children, whereas the wife understood that she would lose only her own periodical payments. When that dispute arose, the husband applied to vary the periodical payments and the wife sought specific performance of the promise to transfer the house. Her claim was transferred to the Family Division.
Held: Thorpe J said: ‘the first conclusion at which I have arrived is that the Chancery proceedings were misconceived. All the issues between the parties related to the 1982 consent order, its implementation, and its possible variations. The fundamental, but not exclusive, consideration for any transfer of the husband’s interest in the home was the wife’s abandonment of her right to claim periodical payments. The implementation of that fundamental consideration would have involved the dismissal of her claim to periodical payments and her rights to claim under the Inheritance (Provision for Family and Dependants) Act 1975.
It is beyond question that such orders are not made simply upon evidence of the applicant’s consent. The court has an overriding duty to survey the sufficiency of the proposed consideration and the overall fairness of the orders proposed. Accordingly, the wife should have brought the disputed compromise before the Edmonton County Court.
In my judgment the issue of proceedings in Chancery by the wife’s advisors in reaction served only to complicate an already complicated issue, to delay an adjudication from which the parties might hope to look with satisfaction for its fairness and finality, and to increase substantially the costs for a family that is not in a position to afford any waste. Nor could Chancery proceedings ever have achieved any practical advantage for the wife. How could the court order specific performance of one side of the bargain, when the plaintiff was not able to perform her side of the bargain without the concurrence of another court having completed a wide-ranging review?
In my judgment, this is, and always has been, an issue that could only be litigated within the suit. Effective jurisdiction remained exclusively in the Edmonton County Court until the suit was transferred to the Family Division. Accordingly I do not intend to grant any relief to the wife within the Chancery proceedings.’

Thorpe J
[1991] FCR 121
England and Wales
Cited by:
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2021; Ref: scu.235235

A v A, B v B: FD 2000

‘the court is not a ‘common informer’.

Charles J
[2000] 1 FLR 701
England and Wales
Cited by:
Cited – Churchhouse, Regina (on the Application of) v Inland Revenue Admn 4-Apr-2003
The taxpayer was a revenue informer one whose trade is described by Coke as ‘viperous vermin [who] under the reverend mantle of law and justice instituted for protection of the innocent, and the good of the Commonwealth, did vexe and depauperize the . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2021; Ref: scu.194953

H v H (Financial Provision: Special Contribution): FD 2002

The court heard an application for ancillary relief in a divorce. The family assets were pounds 6M. The husband was a successful city solicitor. Counsel contended that for various reasons his financial accumulations during the course of his professional life amounted to a special contribution: but on behalf of the wife it was submitted that he was no more than a typical successful City solicitor.
Held: The judge noted that the wife had also succumbed to the temptation to play up her own contribution, but rejected the submission for the husband.
Mr Peter Hughes QC said: ‘I have considerable sympathy for the husband, who has been highly successful and worked extremely hard over many years and no doubt feels that he has created the wealth that exists today. I am unable to accept, though, that his contribution calls for special recognition as in the cases of Cowan and Lambert.
It is not easy to define what may amount to a ‘stellar’ or really special contribution, but rather like the elephant, it is not difficult to spot when you come across it.
In Cowan Mance LJ referred to the relevance of the expectations of the parties. In my judgment that is an important consideration. What did the parties anticipate when they set out on their married life together? To what extent have those expectations been realised or have their lives taken a course neither of them would ever have expected and led to riches they would never have contemplated? That was the case in Cowan. It was also so in Lambert. In both cases the success of the marriage far exceeded the parties joint expectations.
That cannot be said here. The husband was already a qualified solicitor with a well-regarded city firm when the parties married. He was set on the career that he has pursued successfully, as both he and the wife hoped for. He has had to work hard and it has not always been easy. The rewards have though been substantial, as no doubt they had hoped they would be, and over the years he has had the full support of the wife in her role of looking after the home and family.’

Mr Peter Hughes QC
[2002] 2 FLR 1021
Matrimonial Causes Act 1973 25
England and Wales
Citing:
Cited – Cowan v Cowan CA 14-May-2001
When considering the division of matrimonial assets following a divorce, the court’s duty was, within the context of the rules set down by the Act, to impose a fair settlement according to the circumstances. Courts should be careful not to make . .

Cited by:
Cited – Lambert v Lambert CA 14-Nov-2002
The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
Held: The Act gave . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2021; Ref: scu.235254

Rossi v Rossi: FD 26 Jun 2006

W sought to challenge transactions entered into by H anticipating ancillary relief proceedings on their divorce. Nicholas Mostyn QC J said: ‘While of course no rigid rule can be expressed for the infinite variety of facts that arise in ancillary relief cases, I would have thought, generally speaking, that it would be very difficult for a party to be allowed successfully to prosecute an ancillary relief claim initiated more than 6 years after the date of the petition for divorce, unless there was a very good reason for the delay’

Nicholas Mostyn QC J
[2006] EWHC 1482 (Fam), [2007] Fam Law 104, [2007] 1 FLR 790, [2006] 3 FCR 271
Bailii
Partnership Act 1890, Trusts of Land and Appointment of Trustees Act 1996, Matrimonial Causes Act 1973
England and Wales
Citing:
Cited – Lombardi v Lombardi CA 1973
In an ancillary relief application, it was legitimate for the court to reflect in its award the fact that assets had been accumulated since separation by one party alone. Cairns LJ stated: ‘Another way in which the judgment is criticised is that it . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – P v P (Inherited Property) FD 2005
The court considered an application for ancillary relief where one party had inherited a family farm.
Held: The nature and source of the parties’ property are matter to be taken into account when determining the requirements of fairness. . .
Cited – GW v RW (Financial Provision: Departure from Equality) FD 18-Mar-2003
An entitlement to an equal division must reflect not only the parties’ respective contributions ‘but also an accrual over time’, and it would be ‘fundamentally unfair’ that a party who has made domestic contributions during a marriage of 12 years . .
Cited – Cowan v Cowan CA 14-May-2001
When considering the division of matrimonial assets following a divorce, the court’s duty was, within the context of the rules set down by the Act, to impose a fair settlement according to the circumstances. Courts should be careful not to make . .
Cited – N v N (Financial Provision: Sale of Company) FD 2001
The nature of the family assets may be taken into account when considering how they are to be divided in ancillary relief proceedings on divorce, where these are businesses which will be crippled or lose much of their value, if disposed of . .

Cited by:
Cited – Vince v Wyatt CA 8-May-2013
The parties had divorced some twenty years previously, but apparently without ancillary relief orders, the parties at the time being relatively poor. H was now wealthy and W applied for lump sum provision. H replied that there was no no evidence . .

Lists of cited by and citing cases may be incomplete.

Company, Land, Family

Updated: 12 December 2021; Ref: scu.247600

M v L: FD 28 Feb 2003

Ancillary relief application after long term separation – substantial contribution on the part of the wife in caring for the children, a 30-year delay in her bringing her application (following an overseas divorce) and a significant capital award

Coleridge J
[2003] EWHC 328 (Fam), [2003] 2 FLR 425, [2003] Fam Law 563
Bailii
England and Wales
Cited by:
Cited – Wyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2021; Ref: scu.235728

H-J v H-J: FD 17 Oct 2001

The court considered cross-appeals in a case first decided by the District Judge involving substantial assets. The order gave the wife approximately 45% of the assets.
Held: The court increased the wife’s share to equality. Coleridge J differed from the District Judge neither in principle nor in approach but on point of detail. The District Judge had said: ‘Counsel says that this greater emphasis on contributions is an inevitable consequence of the decision in White. I disagree. It is a temptation but it is not a consequence and to give way to it is to commit the very error which White warns us not to, that is to treat some of the factors in section 25(2), in this case contributions, as more important than the others.’ and ‘For my part, I would find it repugnant as a judicial exercise to have, in effect, to draw up a merit table in which fine gradations of contribution give rise to a marginally increased or decreased share in the financial spoils of marriage. By whose standards should I measure such distinctions?’ and ‘In this case, it is sufficient, as I find, to record that both the husband and wife each made their full and equal contributions in their respective roles within this long marriage. The family has been financially successful and the job of raising the children and looking after the various homes has also been successful. The role of the husband has been predominant in the financial success and, as I find, the role of the mother and wife has been predominant in keeping house and raising the children. Any further distinction is, in my judgment, impossible to draw on the evidence.’ the court commented: ‘In the context of this case in relation to this question of contribution, I unhesitatingly agree with the district judge that no useful distinction can be drawn between the husband’s contribution and the wife’s contribution. I can find nothing special, exceptional or stellar about the husband’s contribution in this case. He has undoubtedly worked diligently and successfully and over a long period to amass the assets that have been amassed over the duration of this marriage. He has had some good years and some very good years, but if the facts of this case lead to a finding of a special contribution, in my judgment it would be the thin end of a wedge being driven right into the heart of the principles underlying White v White. So I unhesitatingly come to the view that the district judge’s findings and approach were correct even in the light of Cowan v Cowan.’ and: ‘Underlying this appeal and my decision to allow it there seems to me to be two important points:
The significance attaching to a particular fractional percentage is more than merely the monetary value it represents. It goes to the core of the party’s understanding of fairness. So 50/50 resonates with fairness (as the House of Lords has identified); both parties depart with the sense of being equally valued. There are no winners or losers. Once there is a departure from equality, as there often has to be, however small that departure, one party (more often the wife) is left with a sense of grievance, of her efforts having been undervalued. Understandably, at the time of divorce these considerations matter a great deal to the parties.
In this case, after a marriage which lasted in excess of 25 years, net assets, after deduction of notional sale costs and capital gains tax, have been accumulated amounting to more than andpound;2.7M. Accordingly, there is ample to go round. It would indeed be sad if, in this category of cases (as opposed to those cases where the overall means are less than sufficient and so the needs of children and their carers must inevitably remain predominant), the broad and sweeping reform underlying the speeches in White v White was to become bogged down in a welter of zealous, over-sophisticated and costly forensic analysis, or watered down by judicial reticence.’

Coleridge J
[2002] 1 FLR 415
England and Wales
Cited by:
Cited – Lambert v Lambert CA 14-Nov-2002
The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
Held: The Act gave . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2021; Ref: scu.235253

A v L: FD 25 Jun 2009

Preliminary issues before me arise in the course of extended matrimonial proceedings between the petitioner wife and respondent husband following the final break-up of their marriage in 2006 w

Sir Mark Potter P
[2009] EWHC 1448 (Fam), [2009] Fam Law 928, [2009] 2 FLR 1496
Bailii
England and Wales

Family

Updated: 12 December 2021; Ref: scu.421339

N v N: FD 28 Apr 2010

wife’s application for ancillary relief.

Mr Justice Charles
[2010] EWHC 717 (Fam), [2010] 2 FLR 1093, [2010] Fam Law 791
Bailii
England and Wales

Family

Updated: 12 December 2021; Ref: scu.415946

Lim and Others v Walia: ChD 26 Sep 2012

The court was asked: ‘where the proceeds of a fixed term joint life policy are paid over as the result of the death of the first of the joint lives insured, but in circumstances where it is to be assumed that the payment of the sum insured might have been brought forward on the footing that the deceased had been suffering from a terminal illness, was the deceased, immediately before her death, entitled to a joint tenancy of the lump sum life cover for the purposes of section 9 of the 1975 Act?’
Held: The court should not ignore the fact that, immediately before her death, the deceased, together with her joint policy owner, the defendant, had a crystallised right, subject to proof, to have her death benefit brought forward because of her diagnosed terminal illness.

Hodge QC J
[2012] EWHC 4187 (Ch)
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Citing:
Cited – Powell v Osbourne CA 1993
The deceased had separated from his wife and was cohabiting with Miss Osbourne. The deceased and Miss Osbourne purchased a property as joint tenants, with the assistance of a mortgage. The purchase price had been andpound;91,000 and the mortgage was . .
Cited – Murphy (By Her Litigation Friend Stockmont) v Holland CA 19-Dec-2003
A married couple had taken out an insurance policy on their joint lives. The policy was maintained after they divorced. On his death, his child by the later marriage claimed a share in the policy under the 1975 Act.
Held: (Chadwick LJ . .

Cited by:
Appeal from – Lim (An Infant) v Walia CA 29-Jul-2014
The parties disputed a claim under the 1975 Act. Immediately before her death, the deceased had, because of her medical condition, a vested right to bring forward an insurance benefit, but that right had ceased upon her death. The court had found . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 11 December 2021; Ref: scu.472525

Mansfield v Mansfield: CA 27 Jul 2011

The court was asked as to the degree to which the judge in ancillary relief proceedings should reflect the origin of the family assets in a substantial damages award on the settlement of a personal injuries claim brought in the Queen’s Bench Division.

Thorpe, Jackson, Black LJJ
[2011] EWCA Civ 1056, [2012] Fam Law 17, [2011] 3 FCR 167
Bailii
England and Wales

Family, Personal Injury, Damages

Updated: 11 December 2021; Ref: scu.443753

Practice Direction (Family Proceedings: Human Rights): FD 12 Oct 2000

Those seeking to present to the court arguments under the Human Rights Act must produce to the court full and authoritative texts of the cases they relied upon (including texts downloaded from the ECHR Internet site), and cases involving a possible application for a declaration of incompatibility should be allocated to a High Court judge. Cases involving claims arising from a judicial act should be reserved in the County Court to a circuit judge, and in the High Court to a High Court Judge.

Times 12-Oct-2000
Human Rights Act 1998
England and Wales

Human Rights, Family

Updated: 11 December 2021; Ref: scu.84887

Smith and Others (Mrs Crawford Brown’s Trustees) v Brown and Others: SCS 18 Jul 1890

(Court of Session Inner House First Division) By antenuptial trust-deed executed in Scotland a domiciled Scotswoman in contemplation of her marriage conveyed her whole estate to trustees, directing them to pay her the income during her life, to hold and apply the capital for behoof of the issue of the marriage, and failing them ‘for behoof of my heirs and assignees in fee.’ The truster married in Australia a domiciled Australian, and died there without issue.
In a competition between her heir-at-law, her heirs in mobilibus, and her husband, the latter maintained that he was entitled to the whole estate in terms of the law of the truster’s domicile.
Held that although according to the law of Australia the husband would have taken jure mariti if there had been no destination in the deed beyond the wife, as there was a destination to ‘heirs and assignees,’ which did not include the husband, and as the deed regarded as a will was not revoked by marriage, the husband’s claim fell to be dismissed.

[1890] SLR 27 – 995
Bailii
Scotland

Family, Wills and Probate

Updated: 11 December 2021; Ref: scu.614036

L v L and Hughes Fowler Carruthers: QBD 1 Feb 2007

The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said that the information was subject to professional legal privilege and was otherwise confidential. They had admitted possession of copies of two hard drives from his computers, but said that the possession was lawful.
Held: The material did include confidential material. The evidence should be preserved, but the wife should not be allowed to take advantage of her position. At trial W might be found to have acted unlawfully under either or both the 1990 Act or the 1998 Act. The material should be held by H’s solicitors until trial. It was not clear that the issues raised here would be dealt with by the Family Division, and transfer was refused. An action could lie against W and against the solicitors as co-tortfeasors. It could not be struck out.
Tugendhat J said: ‘I find it a matter for considerable concern that parties to litigation should conduct searches which lack any of the safeguards built into a search order issued by the court, and all the more so if they do that in circumstances where they could not reasonably expect to obtain any such order from the court . . It is a matter for Parliament and the courts to strike the balance between the public interest in protecting privacy and the public interest in ensuring fair trials and the protection of the rights of spouses, in particular by ensuring that evidence is not destroyed and concealed. But whatever the right balance, it is not in the public interest that the law be flouted . . It is said that this [the Hildebrand procedure] is a concept unknown in the Queens Bench Division. I do not consider the concept is unknown in this Division, even if the name of the case is not cited. As I understand the principle, it is the application to Family Proceedings of the principle referred to above, namely that in civil proceedings it has hitherto generally been considered that admissible evidence must be admitted however it has been obtained and if it has been obtained by reprehensible means, then that should be visited upon the wrongdoer, if at all, in orders for costs, or in some other way.’

Tugendhat J
[2007] EWHC 140 (QB), [2007] 2 FLR 171
Bailii
Matrimonial and Family Proceedings Act 1984, Data Protection Act 1998 35 55, Computer Misuse Act 1990
England and Wales
Citing:
Cited – Hildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .
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 – K v K (Financial Capital Relief; and Management of Difficult Cases) FD 17-May-2005
W applied for full ancillary relief arising upon the breakdown of her marriage. She copied a number of the husband’s documents, rummaged through dustbins and took documents from her husband’s pockets. When she was no longer living in the former . .
Cited – A v B FD 31-Jul-2000
Husband and wife pursued ancillary relief applications, but an issue arose as to copyright, and it was transferred to Chancery. W kept a personal diary. H read it after W said she wanted a divorce. He read passages and had extracts photocopied . .
Cited – T v T (Interception of Documents) FD 5-Aug-1994
W feared that the H would seek to understate the true extent of his resources to the court and so she engaged in a number of activities, including opening and taking letters addressed to him and breaking into his office, with the intention of . .
Cited – Halford v The United Kingdom ECHR 25-Jun-1997
halford_ukECHR1997
The interception of the telephone calls of an employee in a private exchange was a breach of her right of privacy. She had a reasonable expectation of privacy. The police force’s surveillances of the applicant’s telephone (to obtain information . .
Cited – Lord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Cited – Calcraft v Guest CA 1898
A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The . .
Cited – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .
Cited – Hughes v Carratu International Plc QBD 19-Jul-2006
The claimant wished to bring an action against the defendant enquiry agent, saying that it had obtained unlawful access to details of his bank accounts, and now sought disclosure of documents. The defendant denied wrongdoing, and said it had . .
Cited – Lock v Beswick 1989
The court examined the remedies available to an employer who wished to recover confidential and other material allegedly taken by an employee.
Held: Hoffmann J said: ‘Even in cases in which the plaintiff has strong evidence that an employee . .
Cited – Jones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .

Cited by:
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 10 December 2021; Ref: scu.248402

Doherty v Doherty: CA 1976

The court avoided technicality when considering the distinction between lump sum and property adjustment orders: ‘Whether it is right, or not, to accept counsel for the husband’s submission that a clear distinction should be drawn between notices of application for financial provision under s 23 and notices of application for property adjustment orders under s 24, may be doubted. These two sections are, in effect, a statement by Parliament of the code to be adopted by the court in dealing with ancillary relief after divorce generally. The fact that they are two separate sections seems to me to be much more a matter of convenience and drafting than anything else. There is no reason that I can see why any distinction should be drawn between those two classes of relief which the court is now empowered to grant. In my view, these two sections should be, as far as possible, regarded as part and parcel of a single code. It may be very important in many cases when the matter comes to be investigated by the court that the court should be free to make either a property adjustment order or a lump sum order, whichever turns out to be the more convenient in the circumstances. It would be unfortunate, I think, if that degree of elasticity were lost for some technical reason. It is quite plain that the same principles apply in the assessment of claims under each of these two sections. That appears from s 25, and it is equally plain from the judgments in Trippas v Trippas of Lord Denning MR and Scarman LJ. Lump sum orders are alternatives to property adjustment orders, and in many cases one order may prove more convenient than another. I do not think there is any greater difference than that. So, in my judgment, the court should keep technical points of the kind with which we are dealing in this case to an absolute minimum.’

Ormrod LJ
[1976] Fam 71
England and Wales
Cited by:
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 10 December 2021; Ref: scu.198595

London Borough of Hackney v Ezedinma: QBD 1981

The house had rooms let for students in the basement and on the ground, first and second floors, with kitchens on the top three floors to serve the rooms. Five rooms had been let when the authority issued a notice under section 19(1) to restrict the number of households to three. The agent let a further three rooms, and the authority prosecuted him, saying that there weer no eight households in breach of the notice. The authority appealed dismissal of the summons.
Held: The authority’s appeal failed. The respondent was the occupier within 19(2). What amounts to a household is a question of fact in the circumstances, but one room could constitute a household.

May J
[1981] 3 All ER 439
Housing Act 1961 19(2) 19(10), Housing Act 1964 67(5)
England and Wales
Citing:
Applied – Simmons v Pizzey HL 1979
As to houses in multiple occupation, ‘both the expression ‘household’ and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive’. After reference to the the . .

Cited by:
Cited – Richards v The Legal Services Commission Admn 19-Jul-2006
The claimant challenged the inclusion in her gross income for calculation of her eligibility to legal aid of maintenance payments received for her children who were both at University. She said that since she had responsibility for their . .

Lists of cited by and citing cases may be incomplete.

Family, Housing

Updated: 10 December 2021; Ref: scu.243373

Suttill v Graham: CA 1977

The husband remained in the home after the divorce and paid all mortgage instalments.
Held: An occupation rent was payable.
Stamp LJ said: ‘a beneficiary entitled to an equal share in equity of property of which he is a trustee, and which he himself occupies, is to be charged with at least an occupation rent so that if as here he seeks to charge his co-beneficiary trustee with half the outgoings he should be charged with half the occupation rent . . That will normally produce a fair result and save costs and where, as here, the husband in possession does not submit to be charged with an occupation rent, it must be wrong that he should seek to charge the wife with half the mortgage interest which he has paid while living in the property rent free and resisting a sale of the property.’
and ‘. . in Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528 this court arrived at a similar conclusion by regarding the mortgage interest paid by the husband while in possession as something equivalent to rent or payment for use and occupation. That will normally produce a fair result and save costs; and where, as here, the husband in possession does not submit to be charged with an occupation rent, it must be wrong that he should seek to charge the wife with half the mortgage interest which he has paid while living in the property rent free.’
Ormrod LJ said: ‘So far as my recollection goes, it has been the normal practice in this class of case to allow the occupying spouse to take credit for repayments of capital but not of interest, because he or she has had the benefit of the use of the house. It was certainly so where the husband was in occupation, although it may not always have been the case where the wife, and particularly the children, were in occupation.’

Stamp, Ormerod LJJ
[1977] 1 WLR 819
Married Women’s Property Act 1882 17
England and Wales
Cited by:
Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Cited – Re Gorman ChD 1990
The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife . .

Lists of cited by and citing cases may be incomplete.

Equity, Family

Updated: 10 December 2021; Ref: scu.183862

K v L: FD 13 May 2010

Application for ancillary relief made by a husband against a wife. It raises issues about the appropriate treatment of inherited wealth, the wife being very wealthy by virtue of pre-marriage inheritances.

Mr Justice Bodey
[2010] EWHC 1234 (Fam), [2010] 2 FLR 1467, [2010] Fam Law 909
Bailii
England and Wales

Family

Updated: 07 December 2021; Ref: scu.421088

Wright v Elwood, Falsely Calling Herself Wright: 23 Jun 1835

This was a cause of nullity of marriage by reason of undue publication of banns, promoted by James Dennis Wnght against Amelia Elwood, heretofore calling herself Emma, otherwise Emily Wright, and pretending to be the wife of the said James Dennis Wright.

[1835] EngR 860, (1835) 1 Curt 49, (1835) 163 ER 17
Commonlii
England and Wales

Family

Updated: 07 December 2021; Ref: scu.316368

Bellenden (formerly Satterthwaite) v Satterthwaite: CA 1948

The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’

Asquith LJ
[1948] 1 All ER 343
England and Wales
Cited by:
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Approved – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – AM v Local Authority and Another; Re B-M (Care Orders) CA 16-Mar-2009
The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now . .
Cited – Clarke-Hunt v Newcombe CA 1982
Cumming-Bruce LJ discussed the difficulty faced by an appeal court: ‘There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide . .
Applied – Norbis v Norbis 30-Apr-1986
The parties disputed a settlement of property on divorce, and on appeal the court had to consider how it should approach a judgment made at the discretion of the judge at first instance.
Held: After citing Bellendon, Brennan J added: ‘The . .
Cited – In re R (A Child) CA 29-Apr-2009
The mother appealed against an order awarding residence of her two children to the paternal grandparents. . .
Cited – In re R (A Child) CA 22-May-2009
. .
Cited – Canadian Imperial Bank of Commerce v Beck CA 26-Jun-2009
. .
Cited – MHA v Secretary of State for Work and Pensions UTAA 28-Oct-2009
. .
Cited – Truter v University of Leicester and Others EAT 24-Nov-2009
EAT PRACTICE AND PROCEDURE: Postponement or stay
There was no basis for interfering with case management directions of an Employment Judge refusing a stay, nor grounds for allowing interim appeals when the . .
Cited – Macintyre v Chief Constable of Kent and others CA 24-Jul-2002
The defendants appealed against case management directions made in this defamation action. . .
Quoted – Horth v Thompson QBD 6-Jul-2010
After a personal injury claim, the judge had apportioned liability and ordered each side to pay the costs of the other. The case had been allocated to the fast track.
Held: The appeal failed. The existence of the Conditional Fee Agreement did . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.197924

Bedfordshire Police Constabulary v RU and Another: FD 26 Jul 2013

The court was asked whether a police force can apply for committal for alleged breach of a forced marriage protection order made under Part 4A of the Family Law Act 1996 when the police were not the applicants who had obtained the relevant order.
Held: That the police force could not; it lacked standing to make the application.

Holman J
[2013] EWHC 2350 (Fam)
Bailii
Family Law Act 1996
England and Wales
Cited by:
Cited – Jones, Re (Alleged Contempt of Court) FD 21-Aug-2013
The Solicitor General sought the committal of the respondent for alleged contempt of court. There had been repeated litigation between the respondent and her former husband as to whether the children should live in Spain with the father or in Wales . .

Lists of cited by and citing cases may be incomplete.

Police, Contempt of Court, Family

Updated: 06 December 2021; Ref: scu.513767

Gowers v Gowers: FD 9 Nov 2011

The court was asked as to the propriety of an order that, within financial proceedings in a divorce, H having paid andpound;500k into court, the judge should have ordered its immediate payment out to W.

Holman J
[2011] EWHC 3485 (Fam)
Bailii
England and Wales

Family

Updated: 06 December 2021; Ref: scu.450356

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

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

Pauffley J
[2013] EWHC 1694 (Fam)
Bailii
England and Wales

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.512056

Practice Direction (Residence and Contact Orders: Domestic Violence) (No.2): FD 14 Jan 2009

The term ‘domestic violence’ ‘includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm’.

[2009] 1 WLR 251
Court Service
England and Wales
Cited by:
Cited – AN (Pakistan) v Secretary of State for The Home Department CA 6-Jul-2010
The claimant appealed against refusal of indefinite leave to remain. She said that she feared if she returned to Pakistan she would be subject to domestic violence. Though her husband had received prison sentences of three years for offences of . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 06 December 2021; Ref: scu.420383

FZ v SZ and Others (ancillary relief: conduct: valuations): FD 5 Jul 2010

The court heard an application for ancillary relief and variation of a post nuptial settlement. Each party made allegations of misconduct against the other, and the litigation had been bitter and protracted. W had obtained copies of H’s private email correspondence, and H had relocated financial assets.
Held: H’s actions were exceptionally unpleasant and were capable of amounting to conduct under s25(2)(g) of the 1973 Act. W’s allegations of violence were false, and ‘W’s actions were exceptionally malicious and are capable of amounting to conduct’ similarly. Mostyn J said: ‘The tale here leads to a number of lessons needing to be learned. The first lesson is that the initial move in a divorce can colour the whole of the rest of the case. The second lesson is, as I have said before, that every action tends to give rise to an equal and opposite reaction. The third lesson is that allegations of dishonesty should be very carefully considered before they are made.’
Mostyn J referred to the forthcoming decision in Tenguiz, saying: ‘I hope very much that the Court of Appeal will not outlaw the use of Hildebrand material. In many cases in which I was involved when in practice the existence of substantial undisclosed funds, in some cases running to millions of pounds, was revealed by virtue only of the wife having obtained Hildebrand documents. But for the obtainment of the documents the funds would not have been found and a gross iniquity perpetrated on both the wife and the court.’

Mostyn J
[2010] EWHC 1630 (Fam), [2011] 1 FLR 64, [2010] Fam Law 1259
Bailii
Matrimonial Causes Act 1973 25(2)(1)(g)
England and Wales
Cited by:
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – Lykiardopulo v Lykiardopulo CA 19-Nov-2010
The court was asked as to how a Family Division judge might decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. H and family members had . .
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 06 December 2021; Ref: scu.421090

Re G (Decree Absolute: Prejudice): FD 2002

H was the respondent in the divorce. He applied for a decree nisi to be made absolute. W opposed because, she said, she would lose her rights under the 1975 Act. She also alleged non-disclosure in the ancillary relief proceedings.
Held: Even if this much was proved, H’s suggested departure from the country in an attempt to frustrate her financial claims would not necessarily follow. Though the husband might not be prejudiced by the delay, in the absence of good grounds from W to refuse a grant, then it should be granted. Had W applied for the decree, it certainly would have been granted. Bennett J said: ‘I do not consider that the mere fact that there are ancillary relief proceedings yet to be heard and adjudicated upon is a sufficient reason to hold up the grant of the absolute and, accordingly, the application by the Husband for a Decree Absolute would be granted.’

Bennett J
[2002] EWHC 2834 (Fam), [2003] 1 FLR 870
Inheritance (Provision for Family and Dependants) Act 1975, Matrimonial Causes Act 1973 9(2)
England and Wales

Family

Updated: 06 December 2021; Ref: scu.254523

AA v NA (Appeal: Fact-Finding): FD 10 Jun 2010

Mostyn J discussed the situations where an appellate court might set aside factual findings by a first instance judge: ‘In my opinion an appellate court would only be able to say that a fact-finder has plainly got the wrong answer if:
(i) His conclusion was demonstrably contrary to the weight of the evidence, or
(ii) The decision making process can be identified as being plainly defective so that it can be said that the findings in question are unsafe.
I would include in the second category errors of principle as to, say, the burden or standard of proof, or a failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct in reaching the factual findings.’

Mostyn J
[2010] EWHC 1282 (Fam), [2010] 3 FCR 327, [2010] Fam Law 913, [2010] 2 FLR 1173
Bailii
England and Wales
Cited by:
Cited – NG v SG FD 9-Dec-2011
The court considered what to do when it was said that a party to ancillary relief proceedings on divorce had failed to make proper disclosure of his assets. H appealed against an award of a capital sum in such proceedimngs.
Held:
Held: . .

Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 06 December 2021; Ref: scu.417779

Cornick v Cornick (No 2): FD 1995

The court considered an application to vary an ancillary relief award and gave a wife more than the sum set out in the budget in circumstances where she had received a capital sum that, with hindsight, was far too low.
Hale J said: ‘Where such a dramatic change in the comparative wealth of the parties takes place very shortly after a capital settlement in divorce proceedings, it is not surprising that the disadvantaged party should want the settlement set aside in some way. But it is only possible to do this in very limited circumstances and it is important not to allow ones natural sympathy for the position in which the wife finds herself to colour the application of those principles to the facts of the particular case.’ and ‘There are three possible interpretations of a situation such as this. The first is that it is simply a change in the parties circumstances which has taken place since the order. This would not normally give rise to any case for reopening matters. The Matrimonial Causes Act 1973 does not allow for the variation of capital settlements, including lump sum orders save as to instalments. Capital settlements are by their nature intended to be final. They have to be based upon a snapshot taken at the time of trial. The court has to do its best with the evidence available to apply the considerations which the court has, under section 25 of the 1973 Act to take into account at the time. Under section 25(2)(a), these include the assets which each party has or is likely to have in the foreseeable future.’
and ‘On analysis, therefore, there are three possible causes of a difference in the value of assets taken into account at the hearing, each coinciding with one of the three situations mentioned earlier:
(1) An asset which was taken into account and correctly valued at the date of the hearing changes value within a relatively short time owing to natural processes of price fluctuation. The court should not then manipulate the power to grant leave to appeal out of time to provide a disguised power of variation which Parliament has quite obviously and deliberately declined to enact.
(2) A wrong value was put upon that asset at the hearing, which had it been known about at the time would have led to a different order. Provided that it is not the fault of the person alleging the mistake, it is open to the court to give leave for the matter to be reopened. Although falling within the Barder principle it is more akin to the misrepresentation or non-disclosure cases than to Barder itself.,br />(3) Something unforeseen and unforeseeable had happened since the date of the hearing which has altered the value of the assets so dramatically as to bring about a substantial change in the balance of assets brought about by the order. Then, provided that the other three conditions are fulfilled, the Barder principle may apply. However, the circumstances in which this can happen are very few and far between. The case-law, taken as a whole, does not suggest that the natural processes of price fluctuation, whether in houses, shares or any other property, and however dramatic, fall within this principle.
In my judgment this case clearly falls within the first category. There was no misevaluation or mistake at the trial. Nothing has happened since then other than a natural albeit dramatic change in the value of the husband’s shareholding. The wife’s case amounts in effect to saying that it is all terribly unfair.’

Hale J
[1995] 2 FLR 490
England and Wales
Citing:
See Also – Cornick v Cornick (No 1) FD 1994
. .

Cited by:
Appeal from – Cornick v Cornick (No 2) CA 2-Jan-1995
The court considered the boundary of its power in ordering periodical payments: ‘I do not believe that Hale J erred in her approach in principle to this case, and I reject the submission which Mr Mostyn has made that there was a delimiting factor . .
Cited – M v M (Financial Relief: Substantial Earning Capacity) FD 29-Mar-2004
The parties had been married for 12 years, there were three children, one with special needs, and assets of over 12 million pounds. The court considered the application for ancillary relief. It was substantially agreed that the wife should receive . .
Cited – Myerson v Myerson (No 2) CA 1-Apr-2009
The couple had compromised a very substantial ancillary relief claim on divorce, but the husband now said that the value of the shareholdings from which payment was to be made had collapsed.
Held: His appeal was dismissed. The principles for . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 06 December 2021; Ref: scu.244875

B v B (Mesher Order): FD 2002

A breadwinner’s unimpaired and unimpeded earning capacity is a powerful resource which can frequently repair any loss of capital after an unequal distribution.

Munby J
[2003] 2 FLR 285, [2002] EWHC 3106 (Fam)
Matriminial Causes Act 1973 25
England and Wales
Citing:
Cited – Mesher v Mesher and Hall CA 1973
(Heard in 1973, but reported in 1980) The court gave a form of ancillary relief order allowing the party with custody of the children (even though both had remarried) to remain in the matrimonial home with them, the house only being sold on the . .

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

Lists of cited by and citing cases may be incomplete.

Family

Updated: 06 December 2021; Ref: scu.242167

Akhmedova v Akhmedov and Others: FD 14 Aug 2020

Mrs Justice Knowles
[2020] EWHC 2235 (Fam)
Bailii
England and Wales
Citing:
See Also – Akhmedova v Akhmedov and Others FD 2-Oct-2019
. .
See Also – Akhmedova v Akhmedov and Others FD 17-Oct-2019
. .
See Also – Akhmedova v Akhmedov and Others FD 12-Jun-2020
applications:
a) an application for disclosure by the Applicant Wife against the Tenth Respondent; and
b) an application by the Tenth Respondent for (i) disclosure from the Applicant Wife in respect of her litigation funding arrangements . .

Cited by:
See Also – Akhmedova v Akhmedov and Others FD 18-Aug-2020
Application to vary freezing orders. . .
See Also – Akhmedova v Akhmedov and Others FD 18-Aug-2020
Application to vary freezing orders. . .
See Also – Akhmedova v Akhmedov and Others FD 28-Oct-2020
Without notice application by the wife for a search order against the tenth respondent. . .
See Also – Akhmedova v Akhmedov and Others FD 4-Nov-2020
Return date of the search order and forensic imaging order granted without notice . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 06 December 2021; Ref: scu.655282