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

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

Family

Updated: 15 November 2021; Ref: scu.414948

[2018] EWFC 81
Bailii
England and Wales

Family

Updated: 15 November 2021; Ref: scu.631820

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

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

Family

Updated: 12 November 2021; Ref: scu.269703

[2018] EWFC B68
Bailii
England and Wales

Family

Updated: 12 November 2021; Ref: scu.631818

[2018] EWFC 77
Bailii
England and Wales

Family

Updated: 12 November 2021; Ref: scu.631830

Holman J
[2021] EWHC 2587 (Fam)
Bailii
England and Wales

Family

Updated: 12 November 2021; Ref: scu.668307

Unreasonable Behaviour must reach criteria

W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: W’s appeal failed. ‘What the authorities show is that, in a case such as this, the court has to evaluate what is proved to have happened (i) in the context of this marriage, (ii) looking at this wife and this husband, (iii) in the light of all the circumstances and (iv) having regard to the cumulative effect of all the respondent’s conduct. The court then has to ask itself the statutory question: given all this, has the respondent behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent?’ and ‘when section 1(2)(b) of the 1973 Act, reproducing section 2(1)(b) of the Divorce Reform Act 1969, uses the words ‘cannot reasonably be expected’, that objective test has to be addressed by reference to the standards of the reasonable man or woman on the Clapham omnibus: not the man on the horse-drawn omnibus in Victorian times which Lord Bowen would have had in mind . . not the man or woman on the Routemaster clutching their paper bus ticket on the day in October 1969 when the 1969 Act received the Royal Assent, but the man or woman on the Boris Bus with their Oyster Card in 2017.’

Sir James Munby P FD, Hallett, Macur LJJ
[2017] EWCA Civ 182, [2017] 2 FCR 569, [2017] WLR(D) 217, [2018] 1 FLR 1002, [2017] 4 WLR 74
Bailii, WLRD
Matrimonial Causes Act 1973 1(2)(b), Family Procedure Rules 2010 1.1
England and Wales
Citing:
Cited – Welfare v Welfare FD 12-Oct-1977
Bush J heard a defended divorce petion sand said: ‘Conduct of a respondent could not be looked at in isolation but had to be viewed in the light of all the surrounding circumstances, including the degree of provocation.’ He continued to adopt the . .
Cited – Ash v Ash FD 2-Feb-1972
The court considered the standard of behaviour which would support an allegation that a petitioner spouse should not reasonably be expected to live with the other spouse.
Held: Tthe court will have regard to the particular petitioner and the . .
Cited – Livingstone-Stallard v Livingstone-Stallard FD 1974
Section 1(2)(b) is expressed in very simple language, and ‘is . . quite easy for a layman to understand’. The court considered the necessary test for whether unreasonable behaviour had reached a point such as to allow a decree of divorce.
Dunn . .
Cited – O’Neill v O’Neill CA 12-Mar-1975
W appealed from rejection of her petition for divorce. The Judge held that the behaviour proved was no more than a wife could reasonably be expected to put up with, and he dismissed the petition. . .
Cited – Stevens v Stevens FD 1979
Sheldon J considered whether the divorce petitioner had established that she should not be expected to continue to live with her husband. An earlier behaviour petition by her had been rejected as making insufficient allegations against H.
Cited – Gollins v Gollins HL 27-Jun-1963
The parties disputed the duty of the wife to continue cohabitation with her husband after a finding that he was guilty of cruelty toward her. The House was also asked as to the nature of ‘unreasonable behaviour’.
Lord Reid said: ‘A judge does . .
Approved – Balraj v Balraj CA 1980
The husband’s petition was based on section 1(2)(e) of the 1973 Act, namely that he and the wife had lived apart for at least five years. The Court of Appeal upheld the judge’s rejection of the wife’s opposition to the grant of a decree, which was . .
Cited – Buffery v Buffery CA 30-Nov-1987
The court considered a petition for divorce beased upon unreasonable behaviour. The Wife petitioner appealed from the decision dismissing her petition for the dissolution of her marriage to the respondent.
Held: After discussing O’Neill: ‘one . .
Cited – Butterworth v Butterworth CA 7-Feb-1997
Brooke LJ, with whom Balcombe LJJ agreed, treated the test for whether behaviour was so unreasonable as to support a petition for divorce as being that laid down by Dunn J in Livingstone-Stallard. . .
Cited – Dodd v Dodd 1906
Sir Gorell Barnes P set out the task of a judge saying that it is our task is jus dicere non jus dare – to state the law, not to make the law, but decried the state of family law: ‘That the present state of the English law of divorce and separation . .
Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
Cited – Birmingham City Council v Oakley HL 29-Nov-2000
When considering if premises fell within the section, and were ‘in such a state as to be prejudicial to health’, the court must consider some feature of the premises which was in itself prejudicial. An arrangement of rooms which was unsatisfactory . .
Cited – In re G (Children) (Education: Religious Upbringing) CA 4-Oct-2012
The parents, both once ultra orthodox Jews disputed the education of their children after their separation, and after the mother, though still Orthodox, ceased to be a member of the Chareidi community. . .
Cited – Healthcare at Home Ltd v The Common Services Agency SC 30-Jul-2014
The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an . .
Cited – SP (Father) v EB (Mother) and Another FD 26-Nov-2014
Judgment on the applicant father’s application for an order that his daughter Kate, who is now aged 14, be returned forthwith to Malta pursuant to Article 12 of the Hague Convention on the International Aspects of Child Abduction 1980, as . .
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 . .
Cited – Babiarz v Poland ECHR 10-Jan-2017
The Court referred to Johnston v Ireland and said: ‘In the area of framing their divorce laws and implementing them in concrete cases, the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure . .
Cited – Buffery v Buffery CA 30-Nov-1987
The court considered a petition for divorce beased upon unreasonable behaviour. The Wife petitioner appealed from the decision dismissing her petition for the dissolution of her marriage to the respondent.
Held: After discussing O’Neill: ‘one . .

Cited by:
At CA – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .
Cited – Her Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 November 2021; Ref: scu.581075

Divorce for Cruelty

A case of divorce, by reason of cruelty, instituted by Mrs. Evans against her husband.
Sir William Scott described what would amount to cruelty: ‘though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals; yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.
That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the question occurs, what is cruelty? In the present case it is hardly necessary for me to define it; because the facts here complained of are such as fall within the most restricted definition of cruelty; they affect not only the comfort, but they affect the health, and even the life of the party. I shall therefore decline the, task of laying down a direct definition. This, however, must be understood, that it is the duty of Courts, and consequently the inclination of Courts, to keep the rule extremely strict. The causes must be grave and weighty, and such as shew an absolute impossibility that the duties of the married life can be discharged. In a state of personal danger no duties can be discharged; for the duty of self-preservation must take place before the duties of marriage, which are secondary both in commencement and in obligation; but what falls short of this is with great caution to be admitted. The rule of ‘per quod consortium amittitur’ is but an inadequate test; for it still remains to be enquired what conduct ought to produce that effect? Whether the consortium is reasonably lost? And whether the party quitting has not too hastily abandoned the consortium?
What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are high moral offences in the marriage-state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on the one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation; and if this cannot be done, both must suffer in silence. And if it be complained that by this inactivity of the Courts much injustice may be suffered, and much misery produced, the answer is that Courts of Justice do not pretend to furnish cures for all the miseries of human life. They redress or punish gross violations of duty, but they go no farther; they cannot make men virtuous; and, as the happiness of the world depends upon its virtue, there may be much unhappiness in it which human laws cannot undertake to remove.
Still less is it cruelty where it wounds not the natural feelings, but the acquired feelings arising from particular rank and situation; for the Court has no scale of sensibilities by which it can gauge the quantum of injury done and felt, and, therefore, though the Court will not absolutely exclude considerations of that sort, where they are stated merely as matter of aggravation, yet they cannot constitute cruelty where it would not otherwise have existed: of course, the denial of little indulgences and particular accommodations, which the delicacy of the world is apt to number amongst its necessaries, is not cruelty. It may, to be sure, be a harsh thing to refuse the use of a carriage or the use of a servant; it may in many cases be extremely unhandsome, extremely disgraceful to the character of the husband; but the Ecclesiastical Court does not look to such matters: the great ends of marriage may very well be carried on without them; and if people will quarrel about such matters, and which they certainly may do in many cases with a great deal of acrimony, and sometimes with much reason, they yet must decide such matters as well as they can in their own domestic forum.
These are negative descriptions of cruelty; they shew only what is not cruelty, and are yet perhaps the safest definitions which can be given under the infinite variety of possible cases that may come before the Court. But if it were at all necessary to lay down an affirmative rule, I take it that the rule cited by Dr. Bever from Clarke, and the other books of practice, is a good general outline of the canon law, the law of this country, upon this subject. In the older cases of this sort which I have had an opportunity of looking into, I have observed that the danger of life, limb, or health is usually inserted as the ground upon which the Court has proceeded to a separation. This doctrine has been repeatedly applied by the Court in the cases that have been cited. The Court has never been driven off this ground. It has been always jealous of the inconvenience of departing from it, and I have heard no one case cited in which the Court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the Court is not to wait till the hurt is actually done; but the apprehension must be reasonable: it must not be an apprehension arising merely from an exquisite and diseased sensibility of mind. Petty vexations applied to such a constitution of mind may certainly in time wear out the animal machine, but still they are not cases of legal relief; people must relieve themselves as well as they can by prudent resistance, by calling in the succours of religion and the consolation of friends; but the aid of Courts is not to be resorted to in such cases with any effect.’

Sir William Scott
[1790] EW Misc J45, 161 ER 466, (1790) 1 Hag Con 35
Bailii
England and Wales

Family

Leading Case

Updated: 11 November 2021; Ref: scu.279966

Revival of domicile of origin after loss of choice

The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not habitable. He visited Scotland frequently but had no residence there. In 1844, he sold the lease and his personal possessions and left London for France to avoid his creditors. But he did not intend to reside permanently in France. His first wife died in 1846, and he formed a liaison with the respondent’s mother who, in 1853, gave birth to the respondent in London. He married her and went back to Scotland thinking that he would thereby legitimise the respondent, avoid his creditors and bar the entail on his estates. He intended to stay in Scotland because he thought he would be safe from his creditors.
Held: The father had lost his domicile of choice in England and that his domicile of origin had revived. The court set out the tests establishing domicile.
The House quoted Scott in La Virginie: ‘It is always to be remembered that the native character easily reverts, and that it requires fewer circumstances to constitute domicile in the case of the native subject than to impress the national character of one who is originally of another country.’

Lord Hatherley LC said: ‘A change of [a person’s domicile of choice] can only be effected animo et facto -that is to say, by the choice of another domicile, evidenced by residence within the territorial limits to which the jurisdiction of the new domicile extends. He, in making this change, does an act, which is more nearly designated by the word ‘settling’ than by any one word in our language. Thus we speak of a colonist settling in Canada or Australia, or of a Scotsman settling in England, and the word is frequently used as expressive of the act of change of domicile in the various judgments pronounced by our Courts.’ nad
‘It seems reasonable to say that if the choice of a new abode and actual settlement there constitute a change of the original domicile, then the exact converse of such a procedure, viz., the intention to abandon the new domicile, and an actual abandonment of it, ought to be equally effective to destroy the new domicile. That which may be acquired may surely be abandoned, and though a man cannot, for civil reasons, be left without a domicile, no such difficulty arises if it be simply held that the original domicile revives.’
Lord Westbury: ‘The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend.’ and ‘Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established.’ and
‘Domicile of choice, as it is gained animo et facto, so it may be put an end to in the same manner.’

Lord Westbury, Lord Hatherley LC
(1869) 1 LR Sc and Div 441, (1869) LR 1 HL 441
Scotland
Citing:
Appeal from – Udny v Udny SCS 14-Dec-1867
Circumstances in which held that a grandfather, not having lost his Scotch domicile of origin, transmitted the same to his son, who, not having lost the same, legitimated his son born out of wedlock per subsequens matrimonium. Held unnecessary to . .

Cited by:
Cited – Morgan As Attorney of Sir Peter Shaffer v Cilento, Shaffer, Shaffer, Shaffer, and Minutolo ChD 9-Feb-2004
The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not . .
Cited – Re Flynn 1968
The court had to decide on the intentions of the deceased with regard to domicile: ‘In one sense there is no end to the evidence that may be adduced; for the whole of a man’s life and all that he has said and done, however trivial, may be prayed in . .
Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Cited – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
Cited – Gaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .

Lists of cited by and citing cases may be incomplete.

Family

Leading Case

Updated: 11 November 2021; Ref: scu.196843

Mr and Mrs Duxbury had been married for 22 years. When, at the end of their marriage, their financial affairs came before the court under the provisions of sections 23 and 24 of the 1973 Act, each wanted a clean break. By the standards of the day, Mr. Duxbury was a wealthy man, and a clean break by way of a lump sum was the obvious answer. Mrs Duxbury’s accountant, a Mr Lawrence, devised a computer programme which, based on her life expectancy on the tables, calculated a lump sum for her which would give her a specified income for life (index linked), but on the premise that, over the years, she had access to and spent the capital, with the result that on her death, nothing, notionally, was left. The court considered the calculation in the light of the wife’s remarriage.
Held: There is no principle of law that a prospect of remarriage must be taken into account and reflected in the award
Ackner LJ said: ‘The essential issue in this case is simply this: should the judge in the circumstances have made a substantially smaller lump sum award, or a substantially smaller lump sum award, coupled with an order for periodic payments, because of the possibility that Mrs Duxbury might in future marry Mr Black with whom she was now living?’

Ackner LJ
[1992] Fam 62, [1987] 1 FLR 7, [1991] 3 WLR 639
Matrimonial Causes Act 1973 23
England and Wales
Cited by:
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Dixon v Marchant CA 24-Jan-2008
The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in . .

Lists of cited by and citing cases may be incomplete.

Family

Leading Case

Updated: 10 November 2021; Ref: scu.197915

The wife appealed an ancillary relief order for equal division on the basis that the judge had failed to allow for the fact that most of the assets had been brought to the marriage by her.
Held: Her appeal succeeded. All the assets at the start of the marriage were hers, and the parties had depended on them for some time after the marriage. The leading cases ‘do not establish any rule that equal division is the starting point in all cases. On the contrary, the starting point in all cases is the financial position of the parties and section 25 MCA 1973.’ The husband had subsequently developed a business but this still required property belonging to her. A clean break was not possible. An order particular to the situation was made.

Sir Mark Potter, President, Lord Justice Wall and Lord Justice Hughes
[2008] EWCA Civ 284, Times 30-Apr-2008
Bailii
Matrimonial Causes Act 1973 25
England and Wales
Citing:
Cited – Cordle v Cordle CA 15-Nov-2001
The former practice in ancillary relief applications where a circuit judge hearing an appeal from a district judge could admit new evidence and hear the case de novo should not survive the new rules, and should cease. An appeal to the circuit judge . .
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 – Charman v Charman (No 4) CA 24-May-2007
The court considered what property should be considered in an ancillary relief claim on divorce, and said: ‘To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .

Lists of cited by and citing cases may be incomplete.

Family

Leading Case

Updated: 10 November 2021; Ref: scu.266493

The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the Inland Revenue and otherwise in respect of failed business. The husband had prepared a briefing paper on the issues, but had not disclosed it until after the order.
Held: There had not been a mistake of such a nature as to allow an amendment of the order. The case did not fall within any of the established categories allowing the re-opening of a final judgment. The wife’s application had been properly rejected.

Wilson LJ
[2008] EWCA Civ 1458, [2009] 1 FLR 1287
Bailii
Matrimonial Causes Act 1973, Family Proceedings Rules 1991 2.71(4)(a)
England and Wales
Citing:
Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Barder v Caluori HL 2-Jan-1987
In divorce proceedings, the husband had transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20 February 1985 and on 25 March the wife unlawfully . .
Cited – Thompson v Thompson CA 1991
. .
Cited – Shaw v Shaw CA 31-Jul-2002
Thorpe LJ said it was difficult to see how a failure to disclose assets in ancillary relief proceedings could be both substantial and unintentional.
As to Bodey J’s analysis of the power to vary an award of a lump sum in Westbury: ‘I am in . .
Cited – Cornick v Cornick (No 1) FD 1994
. .
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 – Charman v Charman (No 4) CA 24-May-2007
The court considered what property should be considered in an ancillary relief claim on divorce, and said: ‘To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the . .
Cited – Robinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
Cited – Hertfordshire Investments Ltd v Bubb and Another CA 25-Jul-2000
When considering an application for a re-hearing of a County Court action in order to consider and admit new evidence, the county court and High Court practice is now the same and the judge should consider the list of questions in Ladd v Marshall, . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Cinpres Gas Injection Ltd v Melea Ltd CA 24-Jan-2008
A final judgment may be impugned for fraud. . .
Cited – Dixon v Marchant CA 24-Jan-2008
The parties had only recently settled their ancillary relief proceedings by consent when the former wife remarried. The former husband sought the setting aside of the order. The wife had denied the relationship. The judge had found the conditions in . .
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .
Cited – B v B (Ancillary Relief Consent Order: Appeal Out of Time) FD 26-Oct-2007
. .
Cited – The Ampthill Peerage Case HL 1977
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial.
Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: ‘The law knows, . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Tommey v Tommey FD 1983
W asked the court to set aside a consent financial relief order. She was to transfer her half of the home to H, in return for andpound;8,000 paid by H in settlement of her financial provision. She said that in the negotiations leading up to the . .
Cited – Stewart v Engel, BDO Stoy Hayward CA 17-May-2000
A judge may reopen a case even after he has delivered his final judgment. A judge invited counsel to amend his pleading to incorporate an improvement, but in the face of his repeated failure to take up the invitation, entered final judgment against . .

Cited by:
Cited – Baker v Rowe CA 6-Nov-2009
H and W, though very elderly, set out for a divorce. A former son-in-law now appealed against a costs order made against him as an intervener under the 1996 Act. The parties disputed his right to appeal without permission.
Held: Under the . .
Cited – Richardson v Richardson CA 8-Feb-2011
Application was made to vary an ancillary relief order on the basis of a Calouri style change of circumstances. . .
Cited – Gohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
Cited – S v S FD 29-Apr-2013
W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 10 November 2021; Ref: scu.278980

Enforcement or variation of final financial remedies order on divorce

Holman J
[2019] EWHC 2135 (Fam), [2019] WLR(D) 473, [2019] 1 WLR 6517
Bailii, WLRD
England and Wales

Family

Updated: 10 November 2021; Ref: scu.648649

FDR Appointment Must Remain Confidential

XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution appointment at which they were appointed. This was prohibited by the Rules, and there were substantial other difficulties.
Held: The order was refused. It was not open to the court to say that the Rules were wrong, and: ‘It is important to remember that the FDR is entirely a creature of statute, being part of the statutory process for dealing with . . financial remedy proceedings brought under the Matrimonial Causes Act 1973 . . the FDR is compulsory and both parties must personally attend: the parties cannot themselves contract out of it . . The other is the obligation on the parties to hold nothing back at the FDR and, indeed, to put forward their best offers. Moreover, it is fundamental that the FDR is a confidential process, differing from other types of family hearings in two significant respects: first, journalists are not permitted to attend the FDR: FPR 27.11(1)(a); secondly, the judge hearing the FDR must have no further involvement with the case: FPR 9.17(2).’

Sir James Munby
[2020] EWFC 84
Bailii
Family Procedure Rules
England and Wales
Citing:
Cited – Myerson v Myerson CA 11-Dec-2008
In an ancillary relief application, the court having once made its determination by way of a consent order, could itself re-open the case to look as part of the same proceedings at matters which the parties had been subsequently unable to resolve. . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Re D (Minors) (Conciliation: Disclosure of Information) CA 1993
The court considered the privileged status of statements made in proceedings under the Children Act 1989 together with the existence of exceptions to that status.
Held: Sir Thomas Bingham MR described the practice in family concilations: ‘The . .
Cited – Hammerton v Hammerton CA 23-Mar-2007
The husband appealed against his committal for contempt of a court order in family proceedings. The court had heard the wife’s application for his committal at the same time as his application for contact with the children.
Held: The appeal . .
Cited – Ramet, Re Application for The Committal To Prison FD 22-Jan-2014
Whilst the judge was delivering her judgment in a child custody dispute the father physically attacked the mother across the well of the court, and a court clerk who came to assist her. He now faced contempt proceedings after being sentenced to . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – CB v EB FC 16-Nov-2020
Exceptional circumstances to support application to vary financial remedies order made on divorce. . .
Cited – CB v EB FC 16-Nov-2020
Exceptional circumstances to support application to vary financial remedies order made on divorce. . .
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Cited – Revenue and Customs v Charman and Another FD 29-May-2012
The parties had fought and had decided their financial relief following the divorce. The revenue now applied for disclosure of the transcripts so as to settle a tax dispute with the husband.
Held: The application failed: ‘Paraphrasing the law . .
Cited – S v S (Inland Revenue: Tax Evasion) FD 1997
Disclosure of Ancillary Relief Papers to HMRC
Wilson J considered disclosure of materials filed in the course of matrimonial proceedings to the Inland Revenue: ‘Under both r 10.15(6) and r 10.20(3) I have a discretion. In the light of the authorities I propose to exercise it by reference to the . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 November 2021; Ref: scu.656544

H had been paying maintenance to W for many years after the divorce. W now appealed against an order revoking the arrangement without providing a capital sum to replace it. H’s health had declined, and also his earnings.
Held: W’s appeal succeeded. W had taken as part of her settlement a desk which was now very valuable, and its value should be amortised and allowed for. The court had however given undue emphasis to the contribution of H’s second wife in increasing H’s pension and other resources, in effect allowing for a potential claim by her in some other future, and otherwise unanticipated divorce. It had not properly allowed for H’s moral obligations to W. W’s home required significant repairs, but both parties might have to downsize. The court re-instated and capitalised the maintenance due, and made the order accordingly.

Wilson, Hughes, Patten LJJ
[2010] EWCA Civ 349, [2010] 3 WLR 1209, [2010] Fam Law 793, [2010] 2 FLR 242, [2010] 2 FCR 509, [2011] 1 Fam 46
Bailii, Times
Matrimonial Causes Act 1973 31(7B)
England and Wales
Citing:
Applied – Roberts v Roberts PDAD 1970
W appealed against an order of the justices that, out of a net income of andpound;22 per week, H should pay only andpound;2.50 per week for the maintenance of herself and their son. The reasoning of the justices was that H needed to apply the . .
Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – Lauder v Lauder FD 21-Mar-2007
W appealed against the variation of periodical payments order.
Held: The court will not generally expect W to apply inherited capital (as opposed to the income generated therefrom) to the meeting of her maintenance needs. . .

Cited by:
Cited – S v AG (Financial Remedy: Lottery Prize) FD 14-Oct-2011
The court considered how to treat a lottery win of andpound;500,000 in the context of an ancillary relief application on a divorce.
Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 November 2021; Ref: scu.406625

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 said: ‘ordinary contractual principles do not determine the issues in this appeal. This is because of the fundamental distinction that an agreement for the compromise of an ancillary relief application does not give rise to a contract enforceable in law. The parties seeking to uphold a concluded agreement for the compromise of such an application cannot sue for specific performance. The only way of rendering the bargain enforceable, whether to ensure that the applicant obtains the agreed transfers and payments or whether to protect the respondent from future claims, is to convert the concluded agreement into an order of the court.’
Thorpe LJ said that ‘an agreement for the compromise of an ancillary relief application does not give rise to a contract enforceable in law’ and that ‘the payer’s liability cannot be ultimately fixed by compromise as can be done in the settlement of claims in other divisions’.

Thorpe, Mummery and Stuart-Smith LJJ
Times 13-Jan-1999, Gazette 10-Feb-1999, Gazette 27-Jan-1999, [1998] EWCA Civ 1966, [1999] 2 All ER 386, [1999] 1 FLR 683, [1999] 1 FCR 289, [1999] Fam Law 301
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2(3)
England and Wales
Citing:
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Cited – Foley v Classique Coaches Ltd CA 1934
The sellers had sold to the buyers a piece of land to use in the latter’s business as coach proprietors, and also contracted with them to supply all the petrol required for that business ‘at a price to be agreed by the parties in writing and from . .
Cited – 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 . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Harte v Harte 2-Dec-1976
Ordinary contractual considerations apply to the interpretation of a settlement of an ancillary relief application. . .
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
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 – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Arthur J S Hall and Co (A Firm) v Simons etc CA 14-Dec-1998
The court considered the limits on liability for professional negligence for lawyers in conduct associated with litigation, but outside the courtroom.
Held: Though the court must balance the need for protection against negligence by lawyers . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Robinson v Robinson (Practice Note) CA 2-Jan-1982
The husband was a serving soldier who had had various postings abroad. The wife returned home, where she discovered that she was pregnant. He followed her home, but she left him, and applied for maintenance. The justices found that she had deserted . .

Cited by:
Cited – Cox v Cox and Skan Dansk Design Limited ChD 27-Apr-2006
Mrs Cox sought to declarations as to the effect of arrangements made on her divorce in an attempt to avoid contentious proceedings. The couple held equal shares in the family business, but the company registers were missing or had never existed. The . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Cited – 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 – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Cited – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
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 . .
Cited – S v S FD 14-Jan-2014
The court was asked to approve a settlement reached under the IFLA arbitration scheme.
Held: The order was approved, but the court took the opportunity to give guidance. . .
Cited – Bokor-Ingram v Bokor-Ingram CA 4-Mar-2009
W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed. . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Cited – Sharland v Sharland CA 10-Feb-2014
Appeal against the order of Sir Hugh Bennett dismissing the application of the appellant wife to resume the hearing of her claim for financial provision following her divorce from the respondent.
Held: (Briggs LJ dissenting) The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Family

Leading Case

Updated: 02 November 2021; Ref: scu.145445

No abuse of process in service error

The husband claimed that the W was guilty of abuse of process by issuing the divorce petion, but then not serving it for many months in an attempt to gain a tactical jurisdictional advantage under Brussels II.
Held: H’s application was refused. W sent the papers to the Foreign Process Section for service under the EU Service Regulation (No 1393/2007) on 19 January 2016. Unfortunately, she gave the husband’s address as No 214 Kurfurstendamm Berlin. That is his office address. His home address is No 215. Because the wife did not give the name of his business and there are a number of units in No 214, the papers were returned marked ‘address unknown’ . . This minor error, if indeed it was an error, is not one that can be said to demonstrate that the wife had failed to take steps required of her within the terms of Art 16. And in any event she did perfectly serve the husband on 27 February 2016, four months and a day after the issue of the petition.

Mostyn J
[2016] EWHC 2634 (Fam)
Bailii
Brussels II Regulation (No. 1347/2000)
England and Wales
Citing:
Cited – Chai v Peng FD 1-May-2014
The court was severely critical of the practice in divorce proceedings of uissuing a petition for divorce but then not serving it for some time. Holman J referred to a colourful metaphor deployed by leading counsel for the husband: ‘To file [a . .
Cited – R v R (Divorce: Stay Of Proceedings) FD 1994
The wife had filed a petition for divorce on 22 April 1993 but did not reveal and serve it until after the husband had filed a petition in Sweden on 9 June 1993. She now sought an order staying the proceedings in Sweden.
Held: The stay was . .
Cited – Dresser UK v Falcongate Freight Management Ltd; The Duke of Yare CA 1992
In England the court was first seised of a matter at the point when the proceedings were served, not when they were issued. Article 21 was metaphorically described as a ‘tie-break rule’ which operates on the basis of strict chronological . .
Cited – R v R (Divorce: Stay Of Proceedings) FD 1994
The wife had filed a petition for divorce on 22 April 1993 but did not reveal and serve it until after the husband had filed a petition in Sweden on 9 June 1993. She now sought an order staying the proceedings in Sweden.
Held: The stay was . .
Cited – Tavoulareas v Tsavliris CA 5-Feb-2004
The court held that Greek proceedings required service for the purposes of establishing seisin, and therefore priority of jurisdiction. Mance LJ said: ‘Professor Antapassis says that, as a matter of Greek domestic law, the effect of art. 221 is that . .
Cited – UBS Ag, London Branch and Another v Kommunale Wasserwerke Leipzig Gmbh ComC 15-Oct-2010
The defendant asked the court to decline jurisdiction.
Held: Gloster J stated: ‘In the present case the relevant requirement is to be found in CPR 7.5. That provides that a claim form which is to be served within the jurisdiction must be . .
Cited – Weiner v Weiner FD 15-Jul-2010
The parties, both Swedish nationals had been habitually resident in England for fifteen years. They had properties in both countries. They disputed the proper forum to resolve their divorce.
Held: Referring to the Regulation, Holman J said: . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – Benatti v WPP Holdings Italy Srl and others CA 28-Mar-2007
The parties had each begun proceedings in different jurisdictions within the European Union. They disputed which court was first seised.
Held: The issue was decided by looking at when, in each case, the document instituting the proceedings was . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 02 November 2021; Ref: scu.570773

The parties disputed the duty of the wife to continue cohabitation with her husband after a finding that he was guilty of cruelty toward her. The House was also asked as to the nature of ‘unreasonable behaviour’.
Lord Reid said: ‘A judge does and must try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman’ and ‘No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so.
Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weakness of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health’.
Lord Pearce said: ‘It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would considered that the conduct complained of is such that this spouse should not be called on to endure it’.

Reid, Evershed, Morris of Birth-y-Gest, Hidson, Pearce LL
[1963] UKHL 5, [1964] AC 644, [1963] 3 WLR 176, [1963] 2 All ER 966
Bailii
England and Wales
Cited by:
Cited – Birch v Birch CA 22-Oct-1991
W appealed against dismissal of her petition for divorce to the effect that her husband had behaved in such a way that she could not reasonably have been expected to live with him. The judge had found H difficult but that his behaviour was not to . .
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .

Lists of cited by and citing cases may be incomplete.

Family

Leading Case

Updated: 02 November 2021; Ref: scu.248552

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 gives only limited guidance on how courts should exercise their discretion; giving priority first to any children, and then to a clean break. The three elements of needs, compensation and sharing are to be separately considered and the order of their determination will vary from case to case. The rationale underlying the sharing principle is as much applicable to ‘business and investment’ assets as to ‘family’ assets, but that does not exclude allowance for the fact that assets may have been acquired after the separation. In MacFarlane, the wife had given up her career, and it was appropriate to restore the periodical payments order of andpound;250,000 a year until further order. It would be wrong to place a time limit on the order requiring her to apply again on the term expiring.
Lord Nicholls of Birkenhead said: ‘In the search for a fair outcome it is pertinent to have in mind that fairness generates obligations as well as rights. The financial provision made on divorce by one party for the other, still typically the wife, is not in the nature of largesse. It is not a case of ‘taking away’ from one party and ‘giving’ to the other property which ‘belongs’ to the former. The claimant is not a supplicant. Each party to a marriage is entitled to a fair share of the available property. The search is always for what are the requirements of fairness in the particular case. ‘ To the extent that the Court of Appeal had taken note of behaviour which was not gross and obvious it had erred: ‘Parliament has drawn the line. It is not for the courts to re-draw the line elsewhere under the guise of having regard to all the circumstances of the case. It is not as though the statutory boundary line gives rise to injustice. In most cases fairness does not require consideration of the parties’ conduct. This is because in most cases misconduct is not relevant to the bases on which financial ancillary relief is ordered today. Where, exceptionally, the position is otherwise, so that it would be inequitable to disregard one party’s conduct, the statute permits that conduct to be taken into account.’ and ‘Parties should not seek to promote a case of ‘special contribution’ unless the contribution is so marked that to disregard it would be inequitable. A good reason for departing from equality is not to be found in the minutiae of married life. ‘
Baroness Hale of Richmond said: ‘English law starts from the principle of separate property during marriage. Each spouse is legally in control of his or her own property while the marriage lasts. But in real life most couples’ finances become ever-more inter-linked and inter-dependent.’ and ‘the checklist in section 25(2) is not simply concerned with totting up the present assets and dividing them in whatever way seems fair at that time. Despite the repeal of the statutory objective, the court is still concerned with the foreseeable (and on occasions more distant) future as well as with the past and the present. The court has to consider, not only the parties’ present resources, but also those that they will have in the foreseeable future.’ and
‘There is obviously a relationship between capital sharing and future income provision. If capital has been equally shared and is enough to provide for need and compensate for disadvantage, then there should be no continuing financial provision. In McFarlane, there has been an equal division of property, but this largely consisted of homes which can be characterised as family assets. This was not enough to provide for needs or compensate for disadvantage. The main family asset is the husband’s very substantial earning power, generated over a lengthy marriage in which the couple deliberately chose that the wife should devote herself to home and family and the husband to work and career. The wife is undoubtedly entitled to generous income provision for herself and for the sake of their children, including sums which will enable her to provide for her own old age and insure the husband’s life. She is also entitled to a share in the very large surplus, on the principles both of sharing the fruits of the matrimonial partnership and of compensation for the comparable position which she might have been in had she not compromised her own career for the sake of them all. The fact that she might have wanted to do this is neither here nor there. Most breadwinners want to go on breadwinning. The fact that they enjoy their work does not disentitle them to a proper share in the fruits of their labours.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Mance
[2006] UKHL 24, Times 25-May-2006, [2006] 2 AC 618, [2006] 1 FLR 1186, Gazette 08-Jun-2006, [2006] 3 All ER 1, [2006] 2 FCR 213, [2006] 2 WLR 1283
Bailii
Matrimonial Causes Act 1973 25 25A
England and Wales
Citing:
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 – SRJ v DWJ (Financial Provision) CA 20-Oct-1999
There is no presumption in favour of a clean break provision in an ancillary relief claim. A nominal award of maintenance was appropriate where the wife’s long dependency and continued responsibility for children made future earning capacity . .
Mentioned – Regina v R HL 23-Oct-1991
H has no right to sexual intercourse with W – rape
The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left . .
Not followed – 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 . .
Not followed – 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 – Foster v Foster CA 16-Apr-2003
The marriage had been short, there were no children, both parties were working, and each could support themselves providing themselves with accomodation. The wife had successfully appealed a finding of the district judge for an equal distribution. . .
Cited – Leslie v Leslie 1911
The courts power to order periodic payments to a wife derives from the fact that the husband typically owns the entirety of the family property. . .
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. . .
Appeal from – 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 . .
Appeal from – Cornick v Cornick (No 3) FD 2001
The court considered its powers when being asked to vary a lump sum provision at the same time as a variation of maintenance.
Held: ‘section 31(7B) clearly introduces a wide discretionary power to be exercised by applying the words of the . .
Mentioned – S v S 1976
Ancillary relief in marriage of short duration. . .
Cited – Minton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Appeal from – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
mentioned – Robertson v Robertson FD 1982
The parties had married in 1973, separated in 1976, and divorce proceedings begun in 1977. W suffered bad health and did not work. H had a position as a senior editor of a newspaper.
Held: The periodical payments order should provide support . .
Mentioned – Hedges v Hedges CA 1991
The parties were middle aged, without children and the marriage was of short duration. W had worked throughout. H lived in tied accomodation, but had purchased a property as an investment and safeguard if he should lose the tied accomodation. W . .
Mentioned – Attar v Attar (No 2) 1985
. .
Cited – Wachtel v Wachtel CA 8-Feb-1973
The court described the 1969 and 1970 Acts as ‘a reforming statute designed to facilitate the granting of ancillary relief in cases where marriages have been dissolved . . We regard the provisions of sections 2,3, 4 and 5 of the Act of 1970 as . .
Cited – G v G (Financial Provision: Separation Agreement) CA 28-Jun-2000
The parties had been married before and had signed a prenuptial agreement.
Held: Thorpe LJ set out the duties of a judge in ancillary relief applications: ‘A judge has to do fairness between the parties, having regard to all the circumstances. . .
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 . .
Cited – Latter v Latter SCS 1990
The court considered an application for financial provision on a divorce. Much of the family wealth was created within a farming company, but the shares in that company were either inherited by the husband or acquired before the marriage.
Cited – Fleming v Fleming CA 17-Nov-2003
An application for extension of a periodical payments order made for a finite period the applicant must surmount a high threshold. . .
Cited – G v G (Financial Provision Equal Division) FD 2-Jul-2002
The family assets were in the region of andpound;8.5M. The wife sought a half share. The husband proposed that she should have 40%. The husband had built the family fortune through exceptional hard work and astute business acumen in the field of . .
Cited – Little v Little IHCS 1990
The court considered the risk in divorce ancillary relief proceedings that treating each step in the process as raising an issue of law and not of discretion would open up decisions by the court of first instance for reconsideration on appeal. The . .
Cited – Lightbody (Or Jacques) v Jacques HL 28-Nov-1996
On an applicatin for ancillary relief on divorce, the sherriff thought that the spouses could share equally in the increase in the value of the matrimonial property after the date when they separated. That could not be done under the rules laid down . .
Cited – Wallis v Wallis HL 5-Aug-1993
(Scotland) The valuation of the matrimonial home was to be taken as at the date of the couple’s separation. The House affirmed the decision of the Court of Session. . .
Mentioned – Preston v Preston CA 1982
The court set out a series of principles applicable in ancillary relief cases where the resources exceeded the strict needs of the parties, including that the court should not make allowance for a spouse’s desire to be able to leave a sum to her . .
Cited – Wallis v Wallis SCS 1992
The effect of section 10(3)(b) of the 1985 Act was that the whole of the wife’s share of the increase in its value after the date of separation which passed to the husband as a result of the sheriff’s order had to be left out of account in the . .
Mentioned – O’D v O’D CA 1976
When considering an application for ancillary relief by a wife, the court should consider the wife’s position, ‘not from the narrow point of ‘need’, but to ascertain her reasonable requirements.’ . .
Mentioned – Dipper v Dipper CA 1980
The court has no power to dismiss an applicant’s claim for periodical payments against her will. . .
Cited – Page v Page CA 1981
In an ancillary relief application, there was enough capital to provide adequately for both husband and wife.
Held: When considering the needs and obligations of the parties a broad view could be taken: (Ormrod LJ) ‘In a case such as this . .
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 – 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. . .
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 – Barwell v Anne Brooks 4-Feb-1784
This was an action for victuals, drink, and other necessaries furnished to the defendant. The declaration also contained a count for goods sold and delivered, and the other common counts. The defendants pleaded her coverture in law. Replication that . .

Cited by:
Cited – Moore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Cited – S v S FD 19-Mar-2008
The husband appealed against an ancillary relief order, and particularly as to an order that he should continue to pay maintenance for the joint lives of the parties rater than for five years. He was earning a substantial income but anticipated that . .
Cited – B v B (Ancillary relief: Distribution of assets) CA 19-Mar-2008
The wife appealed an ancillary relief order for equal division on the basis that the judge had failed to allow for the fact that most of the assets had been brought to the marriage by her.
Held: Her appeal succeeded. All the assets at the . .
Cited – 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 . .
See Also – Mcfarlane v Mcfarlane FD 18-Jun-2009
. .
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 – S v S FD 22-Sep-2006
The court heard an application for ancillary relief. The judgment had been delayed pending the decision in McFarlane. . .
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 – 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 . .
Cited – S v AG (Financial Remedy: Lottery Prize) FD 14-Oct-2011
The court considered how to treat a lottery win of andpound;500,000 in the context of an ancillary relief application on a divorce.
Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Cited – Owens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .

Lists of cited by and citing cases may be incomplete.

Family

Leading Case

Updated: 02 November 2021; Ref: scu.242158

The parties had assets worth about andpound;350,000, most of which consisted of business assets which provided the family income and could not be sold. They ran up costs of andpound;60,000 in contesting the application for ancillary relief. The court issued general guidelines to be followed by practitioners in the preparation of such cases which were designed to reduce costs, including ‘Solicitors and counsel should keep their clients informed of the costs at all stages of the proceedings and, where appropriate, should ensure that they understand the implications of the legal aid charge: the court will require an estimate of the approximate amount of the costs on each side before it can make a lump sum award.’

Booth J
[1990] 1 WLR 575
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 . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 02 November 2021; Ref: scu.197921

An appellate judge in ancillary proceedings who has seen the witnesses, is entitled to give weight to his advantages in having seen the witnesses and his experience in dealing with such issues.

[1966] P 52
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 . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 02 November 2021; Ref: scu.197922

H’s renewed application for permission to appeal in ancillary relief proceedings. He alleged that W was cohabiting and that the judge had failed to take account of that.
Held: H’s request was refused, largeky because he had failed to put adeuate material before the court to allow them to make assessments contrary to that of W. This refusal should not leave H unable to resist W’s appeal.

Sir James Munby P FD
[2016] EWCA Civ 497, B6/2015/2308
Bailii, Judiciary
England and Wales

Family

Updated: 01 November 2021; Ref: scu.565354

H appealed an ancillary relief order giving certain extra rights in the family property on its sale.
Held: ‘the case demonstrates that, in an ancillary relief appeal, even the most conscientious appellate judge can fall into error if, having perceived error and/or received fresh evidence, he purports to make the requisite adjustments without having first stood back and, in the light of all the circumstances including the adjustments, surveyed the effect of the order under appeal. It is sometimes easy to think that an appeal is from a judgment. But it is not; it is from an order. A judgment may have contained an error; and a change of circumstances may have invalidated some of its important assumptions. But it does not follow that the order should be set aside upon appellate review. ‘ The court stressed the need when giving judgment on an appeal against an ancillary relief order, to proffer a balance sheet of the parties’ visible net assets and of the effect of the orders which it proposes to make.

Ward LJ, Mummery LJ, Wilson LJ
[2007] EWCA Civ 1085, [2008] 1 FLR 1108
Bailii
England and Wales
Citing:
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Charman v Charman (No 4) CA 24-May-2007
The court considered what property should be considered in an ancillary relief claim on divorce, and said: ‘To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the . .

Cited by:
Cited – Behzadi v Behzadi CA 8-Oct-2008
W appealed against orders in ancillary relief proceedings saying that the award made to her husband was excessive. . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 November 2021; Ref: scu.260198

Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the husband. The husband had not had independent legal advice before signing the agreement.
Held: Judges were given a wide discretion in ancillary relief proceedings as to the best way of achieving a fair result. ‘Section 25 allows the judges to factor into the discretionary balance considerations that would have been unthinkable in January 1971, the commencement date of this statutory power in its original form. We can take advantage of the flexibility that Section 25 provides to alleviate injustice that would otherwise result from the jurisdictional rules introduced by Brussels II and the widely divergent legal and social traditions of the civil and common law states of Europe.’
Here, the court could do that by allowing for the prenuptial agreement. Though the husband had not received independent legal advice, he acted in a jurisdiction where such agreements are commonplace, had substantial business expertise, and had had full opportunity to take advice. The balance between the needs to provide for the children and the need to allow for the agreement lay in putting the house to be purchased in trust to revert to the wife on the youngest child attaining 22.
Wilson LJ reminded the court that section 25 required the court to have regard to all the circumstances of the case, and then provided a list of matters to which it had to have particular regard. That list was therefore not exclusive.

Lord Justice Thorpe, Lord Justice Rix and Lord Justice Wilson
[2009] EWCA Civ 649, Times 13-Jul-2009, [2009] 2 FCR 645, [2009] 2 FLR 1181, [2009] Fam Law 789
Bailii
Matrimonial Causes Act 1973 25
England and Wales
Citing:
Application for leave – Radmacher v Granatino CA 3-Oct-2008
The parties, both foreign nationals, had signed a prenuptial contract in Germany before their marriage in England. It had provided that on a divorce neither could claim against the other. The wife had very substantial assets, the husband had few. . .
Cited – de Dampierre v de Dampierre HL 1988
The existence and state of foreign proceedings are relevant to the exercise of the court’s discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition . .
Cited – F v F (Ancillary Relief: Substantial Assets) FD 1995
The wife of a rich man wanted pounds 2.5M to purchase a home for herself and the children pending the determination of her claims for ancillary relief. There was no fund to draw on but the husband had ample means. She sought lump sum provision in . .
Not Followed – Macleod v Macleod PC 17-Dec-2008
(Isle of Man) The parties had signed a post-nuptial agreement.
Held: It was not open to the courts to find that such agreements might be enforced. They had been unenforceable under common law, and if the law was to be changed it must be by . .
Cited – Crossley v Crossley CA 19-Dec-2007
The parties had entered into a pre-nuptial agreement. On the ancillary relief proceedings on divorce, the husband sought to have the agreement taken into account by the court. It decided that the wife should give reasons why she considered that the . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – NA v MA FD 24-Nov-2006
The very wealthy H found that W had committed adultery with one of his friends. H pressured W to sign an agreement providing that she would receive a specified lump sum and annual payments if their marriage ended in divorce. W signed it because H . .
Cited – Pounds v Pounds CA 24-Feb-1994
Consent orders giving effect to financial settlements are to be drafted and dated with care. The one in this case mistakenly pre-dated the decree nisi. It was amended under the slip rule. . .
Cited – S v S (Matrimonial Proceedings: Appropriate Forum) (Divorce: Staying Proceedings) FD 27-Mar-1997
Fairness is the test for choice of forum for staying divorce proceedings. As to prenuptial agreements, Wilson J suggested that there might come a case: ‘where the circumstances surrounding the prenuptial agreement and the provision therein contained . .
Cited – Otobo v Otobo; O v O (Appeal against Stay: Divorce Petition) CA 2-Jul-2002
The husband, a wealthy Nigerian had supported further traditional families outside the UK. The wife appealed a stay on her divorce petition. The husband argued that her habitual residence did not support jurisdiction. Agreed expert evidence . .
Cited – Morgan v Hill CA 28-Nov-2006
The father appealed an award of periodical payments to a former partner. She had a child by an earlier relationship. The father was immensely rich and during the relationship made financial provision for the child by the earlier relationship also. . .
Cited – P (Child), Re (Child: Financial Provision) CA 24-Jun-2003
The father was a very wealthy Iranian, and the mother also had capital. She sought an assessment under the 1991 Act of the amount he should be asked to pay. The assessment came to andpound;152 per week, but he was paying andpound;1,200 a month . .
Cited – C v C (Ancillary Relief: Nuptial Settlement) FD 2-Apr-2004
Application for ancillary relief to vary post-nuptial settlement. . .
Cited – Thyssen-Bornemisza v Thyssen-Bornemisza (No 2) 1985
. .
Cited – Dart v Dart CA 2-Jul-1996
A strictly mathematical approach to calculating ancillary relief can be inappropriate in large sum cases. The statutory jurisdiction has to provide for all applications for ancillary financial relief, from the poverty stricken to the . .
Appeal from – NG v KR (Pre-nuptial contract) FD 28-Jul-2008
The parties were foreign nationals, but married and lived in England after the wedding. They had signed a pre-nuptial agreement which would be valid in either country of origin, but the husband now sought ancillary relief putting the aside.
Cited by:
Appeal from – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 November 2021; Ref: scu.347310

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 relief application on a divorce, the court should include consideration of why any departure from an equal division should take place. This not to make such a consideration the starting point. If each party to the marriage had contributed in their different ways, it mattered not in whose name assets were held. The House did not advocate a presumption of equality of division but brought equality into consideration as a criterion by which to measure the fairness of the award. The court therefore reserved the possibility of varying an award away from equal division if fairness itself required a departure from the principle of equality. A desire to have assets which might be left to the children was a consideration, even if it was a lesser one. Applying Piglowska, there was no sufficient reason to depart from the Court of Appeal’s judgment.
Lord Nicholls of Birkenhead: ‘equality should be departed from, only if, and to the extent that, there is good reason for doing so. . . . The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination’

Lord Nicholls of Birkenhead Lord Hoffmann Lord Cooke of Thorndon Lord Hope of Craighead Lord Hutton
Times 31-Oct-2000, Gazette 09-Nov-2000, [2000] 3 WLR 1571, [2000] UKHL 54, [2001] 1 All ER 1, (2000) 2 FLR 981, [2001] 1 AC 596, [2000] 3 FCR 555, [2001] Fam Law 12
House of Lords, Bailii
Matrimonial Causes Act 1973 25
England and Wales
Citing:
Applied – Piglowska v Piglowski HL 24-Jun-1999
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 . .
Criticised – Page v Page CA 1981
In an ancillary relief application, there was enough capital to provide adequately for both husband and wife.
Held: When considering the needs and obligations of the parties a broad view could be taken: (Ormrod LJ) ‘In a case such as this . .
Cited – Dart v Dart CA 2-Jul-1996
A strictly mathematical approach to calculating ancillary relief can be inappropriate in large sum cases. The statutory jurisdiction has to provide for all applications for ancillary financial relief, from the poverty stricken to the . .
Cited – Duxbury v Duxbury CA 1987
Mr and Mrs Duxbury had been married for 22 years. When, at the end of their marriage, their financial affairs came before the court under the provisions of sections 23 and 24 of the 1973 Act, each wanted a clean break. By the standards of the day, . .
Cited – O’D v O’D CA 1976
When considering an application for ancillary relief by a wife, the court should consider the wife’s position, ‘not from the narrow point of ‘need’, but to ascertain her reasonable requirements.’ . .
Cited – Porter v Porter CA 1969
In ancillary relief applications, the discretionary powers enable the court to take into account ‘the human outlook of the period in which they make their decisions’. In the exercise of these discretions ‘the law is a living thing moving with the . .
Cited – Conran v Conran FD 14-Jul-1997
In deciding financial settlement, the court can consider contribution made by the Wife through her own special skills to the husband’s business. One could not sensibly fit an allowance for contribution into an analysis of a wife’s needs. That would . .
Cited – Preston v Preston CA 1982
The court set out a series of principles applicable in ancillary relief cases where the resources exceeded the strict needs of the parties, including that the court should not make allowance for a spouse’s desire to be able to leave a sum to her . .
Cited – Haldane v Haldane PC 1977
(New Zealand) The court considered how under the New Zealand legislation for ancillary rlief, the court was to deal with property inherited by one party to the marriage: ‘Initially a gift or bequest to one spouse only is likely to fall outside the . .

Cited by:
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Cited – Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec) ChD 26-Jan-2001
The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable . .
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 – Moorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
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 . .
Cited – Sorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
Cited – G v G and Another FdNI 25-Oct-2003
There had been a long but argumentative marriage, and the parties disputed distribution of the assets on an ancillary relief application.
Held: The husband could not claim to discount shareholdings as a minority shareholding where he also . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – Wall v Wall CA 27-Nov-2002
The wife sought permision to appeal against an ancillary relief order, relying on Lambert v Lambert, and saying that she had not received a fair hearing.
Held: Permission could only be granted if the court thought there was a real chance of . .
Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – Fielden, Graham (Executors of Cunliffe deceased) v Cunliffe CA 6-Dec-2005
The will was executed anticipating the marriage to the respondent, leaving assets on discretionary trusts for the responent and various family members and others. She had come to work for the deceased as his housekeeper, but later they came to . .
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 – 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 – S v S (Divorce: Distribution of assets) FD 10-Nov-2006
The reference in White v White to the need for a judge in ancillary relief applications always to refer back to the yardstick of equal distribution of all the assets did not mean that the judge had to include in such calculations non-matrimonial . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Cited – B v B (Ancillary relief: Distribution of assets) CA 19-Mar-2008
The wife appealed an ancillary relief order for equal division on the basis that the judge had failed to allow for the fact that most of the assets had been brought to the marriage by her.
Held: Her appeal succeeded. All the assets at the . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Mentioned – 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 . .
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 – 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 . .
Cited – S v AG (Financial Remedy: Lottery Prize) FD 14-Oct-2011
The court considered how to treat a lottery win of andpound;500,000 in the context of an ancillary relief application on a divorce.
Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .
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

Leading Case

Updated: 01 November 2021; Ref: scu.159088

The claimant sought a decree of divorce. The ceremony had been a religious one in Cape Town. They had intended it to be followed by a ceremony in a register office in England, but this did not happen. The pastor in south Africa said that he had warned them that in the absence of them signing the register there, no wedding would have taken place. It was not signed.
Held: The parties were not married despite the words of the service, and proclamation of the marriage at the end. Neither partner nor clergyman thought a wedding was taking place. The ceremony had failed to satisfy the local law requirements.
‘it is not . . either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event having marital characteristics should be held not to be a marriage. Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance.’

Bodey J
[2009] 2 FLR 1129, [2009] EWHC 1306 (Fam), Times 17-Jul-2009, [2009] Fam Law 810, [2009] 3 FCR 401
Bailii
Matrimonial Causes Act 1973, Family Law Act 1986 58(5)(a)
England and Wales
Citing:
Cited – Neuman v Neuman 1926
The court considered the validity of a marriage created by a ceremony according to the Jewish faith. . .
Cited – Burns v Burns 2008
. .
Cited – Gandhi v Patel and others ChD 31-Jul-2001
. .
Cited – A-M v A-M (divorce: jurisdiction: validity of marriage) FD 2001
The parties had undergone a wedding ceremony under Islamic law, but not one which would constitute a marriage under UK law. H had been actively seeking to regularise the position as a matter of English law and had been advised that the parties . .
Cited – Kassim v Kassim 1962
In the case of a marriage void for bigamy the court had no jurisdiction to withold a decree of nullity. . .
Cited – Corbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .

Cited by:
Cited – Galloway v Goldstein FD 16-Jan-2012
The claimant sought a declaration of marital status. They had undergone marriage ceremonies first in Connecticut and then in the UK. In the second ceremony they had declared that they had not previously been married. The US marriage had been . .
Cited – MA v JA (Attorney General intervening) FD 27-Jul-2012
The parties had gone through a marriage ceremony, but not having given the required notice to the registrar, no marriage certificate had been issued. They now sought a declaration that the marriage was valid.
Held: The declaration was granted. . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 November 2021; Ref: scu.347354

Appeal from ancillary relief order.

Waite, Morritt LJJ
[1996] EWCA Civ 1304, (1997) 1 FLR 89, (1996) 2 FLR 34
Bailii
England and Wales

Family

Leading Case

Updated: 01 November 2021; Ref: scu.245747