Blyth v Blyth: HL 1966

The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. So far as the bars to divorce are concerned, like connivance or condonation, the petitioner need only show that on balance of probability he did not connive or condone as the case may be’
Lord Pearson said: ‘The phrase ‘is satisfied’ means, in my view, simply ‘makes up its mind’; the court on the evidence comes to a conclusion which, in conjunction with other conclusions, will lead to the judicial decision.’

Lord Denning
[1966] AC 643
Matrimonial Causes Act 1950 4(2)
England and Wales
Citing:
Cited – Bater v Bater CA 1951
The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to . .
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .

Cited by:
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .

Lists of cited by and citing cases may be incomplete.

Evidence, Family

Leading Case

Updated: 01 November 2021; Ref: scu.237706

Myers v Myers and Orhers: FD 3 Aug 2004

The court ordered, from a very large estate, provision which included housing, but he did so by way not of an outright capital sum but of a life interest in a trust fund together with power of advancement designed to cater for the possibility of care expenses in advanced old age. If housing is provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.

Munvy J
[2005] WTLR 851, [2004] EWHC 1944 (Fam)
Bailii
Inheritance (Provision for Family and Dependants) Act 1975
England and Wales
Cited by:
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .

Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Leading Case

Updated: 01 November 2021; Ref: scu.581090

Barder v Calouri: HL 1987

In divorce proceedings, the husband 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 20th February 1985 and on 25th March an appalling tragedy supervened when the wife unlawfully killed the two children and then committed suicide. The husband said that the subsequent events undermined the basis of the order, and that it should be re-opened.
Held: It should.
Lord Brandon said: ‘There can, in my opinion, be no doubt that the consent order dated 20 February 1985 was agreed between the husband and the wife through their respective solicitors, and approved by the registrar, upon a fundamental, though tacit, assumption. The assumption was that for an indefinite period, to be measured in years rather than months or weeks, the wife and the two children of the family would require a suitable home in which to reside. That assumption was totally invalidated by the deaths of the children and the wife within five weeks of the order being made . . My Lords, the result of the two lines of authority to which I have referred appears to me to be this. A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case. To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases. That fourth condition is that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.’
Lord Brandon also said: ‘A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidates the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order being made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case.’

Lord Brandon of Oakbrook
[1988] AC 20, [1987] 2 WLR 1350, [1988] Fam Law 18, [1987] 2 All ER 440
England and Wales
Cited by:
Cited – Myerson v Myerson (No 2) CA 1-Apr-2009
The couple had compromised a very substantial ancillary relief claim on divorce, but the husband now said that the value of the shareholdings from which payment was to be made had collapsed.
Held: His appeal was dismissed. The principles for . .
Cited – Westbury v Sampson CA 23-Mar-2001
The claimant was advised to accept a consent order that his wife should pay him a capital sum in the divorce, but by instalments. The wife later successfully applied to have the sum reduced. He sought to claim against his former solicitors for not . .
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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Family

Leading Case

Updated: 01 November 2021; Ref: scu.329534

Stodgell v Stodgell FD: FD 18 Jul 2008

The parties were involved in ancillary relief proceedings. At the same time the husband was in prison after having hidden earnings from his business, and was subject to an unsatisfied confiscation order. The guardian had had doubts about the mother’s suitability to have full responsibility for the care of their 11 year old son. The revenue contended that the matter should not be delayed so that the confiscation order could be enforced.
Held: The fraudulent activities of the husband did constitute conduct which it would be inequitable to disregard within the meaning of paragraph (g). He has brought shame upon himself, despair to the wife, and destroyed the economy of this family. However the family needs in this case could not be given priority over the duty to satisfy the confiscation order: the court cannot protect every child from every consequence of their parents’ behaviour.

Holman J
[2008] EWHC 1925 (Fam)
Bailii
Matrimonial Causes Act 1973 25(g)
England and Wales
Citing:
Cited – H M Customs and Excise and Another v MCA and Another; A v A; Re MCA CA 22-Jul-2002
The husband and wife divorced and a property adjustment order applied for. The husband had been convicted and a drugs proceeds order made under the 1994 Act. The order had not been satisfied, and the receiver applied for money from the matrimonial . .
Cited – The Serious Fraud Office v Lexi Holdings Plc CACD 10-Jul-2008
Application was made for the variation of a restraint order made under the 2002 Act to enable payment to be made to a judgment creditor in advance of any confiscation order being made, or indeed before any criminal charges had even been preferred. . .
Cited – In re Peters CA 1988
After the defendant was arrested for drugs offences a restraint order was made to prevent dissipation of his assets. Orders were made to vary the restraint to allow payment of his sons school fees, and in family proceedings for a payment to his . .

Cited by:
See Also – Stodgell v Stodgell Admn Admn 18-Jul-2008
The court heard divorce ancillary relief applications against the background of an impending criminal confiscation order against the husband. . .

Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 01 November 2021; Ref: scu.276702

Dennis v Dennis: CA 17 Mar 1955

The petitioner sought a divorce alleging cruelty. A decree had been granted by the judge and the husband now appealed saying that the acts alleged fell short of cruelty.
Held: ‘The finding that the husband had been guilty of acts of violence towards his wife on four occasions in the year 1952 is ample to warrant the granting of a Decree on the ground of cruelty unless there be something to show that, in all the circumstances, a Decree ought not to have been granted either because the acts were not serious acts, or for some other reason. Acts of violence by a husband towards his wife such as were found in this case must be regarded seriously. There may be some excuse in some cases of tempers up when the man loses control of himself, but it in difficult to see that there can be any excuse for the acts which, on the Commissioner’s finding, were committed by the husband against the wife in this case, and those acts of violence followed a course of conduct which showed an unpleasant steak somewhere if, an I think it was, the evidence of the wife was believed.’

Singleton, Hodson, Moris LJJ
[1955] EWCA Civ 2, [1955] 2 WLR 817, [1955] P 153, [1955] 2 All ER 51
Bailii
England and Wales

Family

Leading Case

Updated: 01 November 2021; Ref: scu.262838

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 an application has been dealt with upon its merits, the court has no future jurisdiction save where there is a continuing order capable of variation or discharge under section 31 of the Act . . There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. But the other – of equal importance – is the principle of ‘the clean-break’. The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down.’

Lord Scarman, Viscount Dilhorne
[1979] AC 593, [1978] FLR Rep 461
Matrimonial Causes Act 1973 25
England and Wales
Cited by:
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 – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – 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 – 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 – Mcfarlane v Mcfarlane FD 18-Jun-2009
. .
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 . .

Lists of cited by and citing cases may be incomplete.

Family

Leading Case

Updated: 01 November 2021; Ref: scu.186014

RS (Immigration/Family Court Liaison: Outcome) India: UTIAC 26 Feb 2013

UTIAC (1) This case provides an example of the importance of co-operation and communication between the two jurisdictions, family and immigration, where two sets of parallel proceedings, closely dependent upon each other are ongoing.
(2) Following the Ruling of the Upper Tribunal in RS (immigration and family court proceedings) India [2012] UKUT 218 (IAC), the appellant’s Article 8 case against deportation fell to be determined in the light of the judgment of the family court regarding the best interests of the appellant’s child, H. The family court held that H’s best interests did not lie with her parents but by being placed in long-term foster care in the United Kingdom. The family court regarded it as acceptable for contact with H’s parents to be face-to-face annually (by H’s visiting them in India, at public expense) and monthly by means of Skype.
(3) Since those arrangements satisfied H’s best interests in the family proceedings, where those interests were the paramount concern, it followed that the Tribunal could be satisfied, when considering H’s best interests as a primary consideration in the deportation proceedings, that the appellant’s deportation did not interfere with H’s best interests.
(4) The arrangements identified by the family court as meeting H’s best interests provided for the likelihood of the appellant’s deportation. The family court took into account [53] of the Tribunal’s Ruling in [2012] UKUT 218.
(5) The appellant’s deportation was, accordingly, not unlawful on human rights grounds.

Blake J P, McFarlane LJ, Martin UTJ
[2013] UKUT 82 (IAC)
Bailii
England and Wales

Immigration, Family, Human Rights

Updated: 01 November 2021; Ref: scu.472146

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 orders, or is there some special magic about orders made in matrimonial proceedings, which means that they are different? W now appealed from rejection f her request that the settlement be re-opened, it having been shown that the order had been obtained despite the deceit of H. He request had been rejected on the bassi that if full disclosure had been made, the order would not have been substantially different.
Held:
Lady Hale said: ‘the majority in the Court of Appeal in this case were correct to say that matrimonial cases were different from ordinary civil cases in that the binding effect of a settlement embodied in a consent order stems from the court’s order and not from the prior agreement of the parties. It does not, however, follow that the parties’ agreement is not a sine qua non of a consent order. Quite the reverse: the court cannot make a consent order without the valid consent of the parties. If there is a reason which vitiates a party’s consent, then there may also be good reason to set aside the consent order. The only question is whether the court has any choice in the matter.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hodge
[2015] UKSC 60, [2015] WLR(D) 408, [2015] 3 FCR 481, [2015] Fam Law 1461, [2016] 1 All ER 671, [2015] 2 FLR 1367, [2015] 3 WLR 1070, UKSC 2014/0074
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video
Matrimonial Causes Act 1973 33A
England and Wales
Citing:
See Also – 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 – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
At FD – 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 . .
Appeal from – 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. . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Hyman v Hyman HL 1929
The husband had left the wife for another woman. The parties had entered into a deed of separation under which the husband had paid two lump sums and agreed to make weekly payments of 20 pounds for the life of the wife. The deed included a covenant . .
Cited – Dietz v Lennig Chemicals Limited HL 1969
Before proceedings, the plaintiff widow accepted the defendants’ offer to settle her and her infant son’s Fatal Accidents Acts claim ‘subject to the approval of the court’. A summons was then issued for the court to approve that settlement. The . .
Cited – Purcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
Cited – Smith v Kay HL 1859
A party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality.
Lord Cranworth rejected what he described as ‘a very desperate argument’ that a representation could . .
Cited – Jonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Cited – Wales v Wadham FD 1977
H and W agreed a consent order following a divorce under which H was to pay W andpound;13,000 from his half-share of the matrimonial home in settlement of W’s claims for financial provision for herself. Both consulted solicitors and the agreement . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
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 – 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 – 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 – 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 – L v L FD 2-May-2006
The husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act. . .
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 by:
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
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 . .

Lists of cited by and citing cases may be incomplete.

Family, Torts – Other

Updated: 01 November 2021; Ref: scu.553310

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 poverty or to return to Nigeria against her wishes.
Held: It was not impossible or improper for two jurisdictions to take part in divorce proceedings, and nor was it necessary to apply strictly the forum non conveniens rules. The order requiring the transfer to the wife of a share in the proceeds of sale in the house in London in exchange for abandoning any interest in the property in Nigeria should stand, and it was not necessary to show any exceptional need, though a mere disparity between the orders which might be made in each jurisdiction would not be enough. The 1984 Act was passed to provide this power.

Lord Phillips, President, Lord Rodger, Lady Hale, Lord Collins, Lord Kerr
[2010] 1 AC 628, [2010] 1 FLR 1813, [2010] UKSC 13, [2010] 2 WLR 709, [2010] 2 All ER 877, [2010] Fam Law 573, [2010] 2 FCR 1, UKSC 2009/0034
Bailii, Times, SC Summary, SC
Matrimonial and Family Proceedings Act 1984
England and Wales
Citing:
See Also – Akinnoye-Agbaje v Akinnoye-Agbaje CA 15-Jun-2007
Renewed application for leave to appeal against order made under 1984 Act. . .
Cited – Indyka v Indyka HL 1969
An English court should recognise a divorce decree granted in a foreign country where there was a real and substantial connection between the petitioner for the divorce and the country exercising the jurisdiction.
Lord Wilberforce said: ‘In my . .
Appeal from – Agbaje v Agbaje CA 20-Jan-2009
The court was asked as to the operation of section 10 of the 1984 Act where the marriage had been dissolved abroad. W had obtained an order under the 1984 Act though the parties had divorced in Nigeria.
Held: Leave was granted and the . .
Cited – Turczak v Turczak 1970
Following a Polish divorce, there was no power to order maintenance under the 1965 Act because the parties were no longer husband and wife. . .
Cited – Torok v Torok 1973
Ormrod J agreed to an application to accelerate the decree absolute of divorce to preserve the court’s jurisdiction to hear a claim for ancillary relief. If a divorce were obtained in Hungary on the basis of the husband’s Hungarian nationality, it . .
Cited – Quazi v Quazi HL 1979
The husband had pronounced a talaq in Pakistan, in accordance with the 1961 Muslim Family Ordinance. The question was whether the English court had jurisdiction on the wife’s petition to dissolve the marriage and make consequential orders relating . .
Cited – A Elaine Jordan v Roy Gregory Jordan Admn 12-Jul-1999
The parties had married and divorced and made a financial settlement in the US, but the husband had returned to live in the UK. The wife now sought in effect to enforce the balance of the US order here. . .
Cited – Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union 1979
(Federal Court of Australia) Deane J interpreted a statute using the word ‘substantial’ saying that it ‘is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision.’ . .
Mentioned – 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 – Barings Bank Plc and Another v Coopers and Lybrand (A Firm) and others CA 18-Jul-2002
Application was made to set aside a leave to appeal in a case where the liquidators of the collapsed bank brought professional negligence claims against its auditors.
Held: The power to set aside leave is only to be exercised where some . .
Cited – Nathan v Smilovitch and Another CA 13-May-2002
Application to set aside leave to appeal.
Held: It is a rare case in which, once permission to appeal has been granted it is appropriate to set it aside. . .
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 – A v S (Financial Relief after Overseas US Divorce) 2003
. .
Cited – The Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
Cited – Holmes v Holmes CA 1989
Purchas LJ said: ‘the phrase ‘substantial ground for the making of an application for such an order’ is clearly central to the issues in this application . . [i]n particular when the court comes to consider such an application, it will have to take . .
Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
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 by:
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Cited – Traversa v Freddi CA 14-Feb-2011
Jurisdiction in Cross border divorce
The parties had divorced in Italy. After the wife sought possession of her house in London where H lived, he appealed against refusal of leave to apply for an order under the 1984 Act, the court having found insufficient substantial grounds for . .
Cited – Mulcaire v News Group Newspapers Ltd ChD 21-Dec-2011
The claimant, a private investigator had contracted with the News of the World owned by the defendant but since closed. He had committed criminal offences in providing information for the paper, had been convicted and had served his sentence. He . .
Cited – H v S FD 18-Nov-2011
The court was asked whether for the purposes of English divorce and connected proceedings a Talaq pronounced by the respondent husband in Saudi Arabia and placed by Deed of Confirmation before the Sharia Court is entitled to be afforded recognition . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 01 November 2021; Ref: scu.402570

White v Withers Llp and Dearle: CA 27 Oct 2009

The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the solicitors for wrongful interference with property by ‘possessing, taking or intercepting the claimant’s correspondence and documents including personal family letters, private and confidential letters concerning business opportunities and documents containing financial information.’ Withers relied on their advice having been given in compliance with Hildebrand.
Held: Leave to appeal was granted, and the claim re-instated. The rule in Hildebrand covered issues as to the use of such material within family proceedings, and not wider issues of property rights: ‘The Matrimonial Causes Act 1973 can be invoked to justify admitting the evidence contained in the documents: but one cannot construe the Act as authorising the commission of the torts of trespass or conversion.’ The defendants had taken into possesion and retained original and private documents which had no relevance in the proceedings. The propriety of the solicitor’s conduct was at issue, and could not be swept under the carpet.
The court examined the history and limits of self-help remedies in matters of tort
Ward LJ explained the rule in Hildebrand: ‘It may be appropriate to summarise the Hildebrand rules as they apply in the Family Division as follows. The family courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents nor I would add, though it is not a feature of this case, the removal of any hard disk recording documents electronically. The evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs.’

Ward, Sedley, Wilson LJJ
[2009] EWCA Civ 1122, [2010] Fam Law 26, [2009] 3 FCR 435 [2009] 3 FCR 435
Bailii
Torts (Interference with Goods) Act 1977
England and Wales
Citing:
Cited – Hildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .
Cited – White v Withers Llp and Another QBD 19-Nov-2008
The claimant sought damages. The defendant firm of solicitors had represented the claimant’s wife in matrimonial procedings, and had used in evidence documents which the claimant said had been taken from him and were confidential.
Held: The . .
Cited – Ward v Macauley And Another 25-Nov-1791
A having let his house ready furnished to B. cannot maintain trespass against the sheriff for taking the furniture under an execution against B.; though notice were given that the goods belonged to A. The plaintiff was the landlord of a house, which . .
Cited – T v T (Interception of Documents) FD 5-Aug-1994
W feared that the H would seek to understate the true extent of his resources to the court and so she engaged in a number of activities, including opening and taking letters addressed to him and breaking into his office, with the intention of . .
Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Cited – Fouldes v Willoughby 1841
The ferryman who turned the plaintiff’s horses off the Birkenhead to Liverpool ferry was guilty of conversion if he intended to exercise dominion over them, but not otherwise. Scratching the panel of a horse carriage would be a trespass, but it . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Marfani and Co Ltd v Midland Bank Ltd CA 1968
A rogue opened a new bank account under a false name with the help of an incorrect reference from a valued customer.
Held: When an account is fraudulently opened with the bank in the name of another person by someone pretending to be that . .
Cited – Southwark London Borough Council v Williams CA 1971
No Defence of Homelessness to Squatters
The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity.
Held: The proper use of abandoned council properties is best . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Jones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
Cited – Monsanto Plc v Tilly and Others CA 30-Nov-1999
A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged . .
Cited – Collins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
Cited – Wilson v Pringle CA 26-Mar-1986
Two boys played in a school yard. D said he had pulled a bag from the other’s shoulder as an ordinary act of horseplay. The plaintiff said it was a battery.
Held: The defendant’s appeal against summary judgment was allowed. A claim of trespass . .
Cited – Brandes Goldschmidt and Co Ltd v Western Transport Ltd CA 1981
Brandon LJ said: ‘Damages in tort are awarded by way of monetary compensation for the loss or losses a plaintiff has actually sustained.’ . .
Cited – Dow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
Cited – J v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .

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

Lists of cited by and citing cases may be incomplete.

Legal Professions, Torts – Other, Intellectual Property, Family

Updated: 01 November 2021; Ref: scu.377238

Barlow Clowes International Ltd and Others v Henwood: CA 23 May 2008

The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius and left IOM. The creditor said that new home was only a holiday home, and that therefore the domicile of origin revived. The judge had criticised the debtor’s veracity.
Held: The debtor had not established acquisition of a domicile of choice in Mauritius, and his domicile of origin was revived on leaving IOM. The bankruptcy court therefore had jurisdiction. The acid test on domicile was as to where the debtor’s ‘real residence’ was and ‘The judge wrongly asked himself whether Mr Henwood intended to reside permanently in Mauritius but failed to ask whether Mauritius was Mr Henwood’s chief residence. The judge made no finding as to where Mr Henwood’s chief residence was.’
Any test of chief residence is circular: ‘It cannot simply be a reference to the main home in terms of size or amenities. Nor can it be a reference to the home in which the subject spends the most time. The court has to look at the quality of the residence in order to decide in which country the subject has an intention to reside permanently. Provided that task is carried out, the chief residence in the sense that term is used in this context has in fact been identified.’
The untruths told by the debtor were attempts to direct the court to a finding that his domicile was in Mauritius: ‘The lies were therefore relevant to evaluation of the evidence as to his intention as to permanent or indefinite residence. The lies diminish the likelihood of that intention in reality because if that intention really existed there would be no need to lie in what must have been a premeditated way and on this scale.’
The court considered when it was able to review a finding of fact. In this case the judge had failed properly to reflect the importance of some facts, and the appeal court felt able to examine the facts again.

Waller LJ VP, Arden LJ, Moore-Bick LJ
[2008] EWCA Civ 577, Times 18-Jun-2008, [2008] BPIR 778
Bailii
Insolvency Act 1986 265
England and Wales
Citing:
Cited – Datec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Bell v Kennedy 1868
A domicile of choice in a country is been acquired immediately upon the person’s arrival in that country.
Lord Cairns, having held that it was unnecessary for him to examine the various definitions that have been given of the term ‘domicile’, . .
Cited – Wahl v Wahl 1932
A person’s citizenship does not necessarily determine his domicile. . .
Cited – In the Estate of Fuld, decd (No 3) ChD 1967
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile.
Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the . .
Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
Cited – Buswell v Inland Revenue Commissioners CA 1974
. .
Mentioned – Re Clore (deceased) (No. 2) 1984
. .
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 – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Whicker v Hume HL 1858
Lord Cranworth said: ‘in these days, when the tendency of the educated and leisured classes is to become cosmopolitan – if I may use the word – you must look very narrowly into the nature of the residence suggested as a domicil of choice before you . .
Cited – Winans v Attorney-General HL 1904
A domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice. A domicile of origin is tenacious; the character of . .
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
Cited – Inland Revenue Commissioners v Bullock CA 1976
The court was asked to decide whether the taxpayer’s house was his principal home. Buckley LJ discussed the nature of ‘residence’: ‘A man may have homes in more than one country at one time. In such a case, for the purpose of determining his . .
Cited – Inland Revenue Commissioners v Plummer HL 1-Nov-1979
Although transactions were integrated as part of a preconceived scheme which was commercially marketed and that had no other conceivable purpose than that of saving surtax, the construction of the statute compelled the acceptance of a fiscal result . .
Cited – Plummer v Inland Revenue Commissioners ChD 1987
The taxpayer had a domicile of origin in England but her family had moved to Guernsey. She remained in England principally for the purpose of completing her education. She intended when she had finished her training and had some experience working . .
Cited – Inland Revenue Commissioners v Duchess of Portland 1982
The taxpayer had homes in Quebec and in England. The court was asked to decide which was her principle residence, and in particular whether she had acquired a domicile of choice on an annual visit in 1974.
Held: Residence for the in the law of . .
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 – Urquhart v Butterfield 1887
A court may find a result different from that proposed by either party where there is no admission on the issue. . .
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 . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 01 November 2021; Ref: scu.267998

Nimako-Boateng (Residence Orders – Anton Considered) Ghana: UTIAC 4 Jul 2012

UTIAC A residence order or prohibited steps order made by a judge of the family court under s.8 of the Children Act 1998 do not bind the Secretary of State for the Home Department.
The decisions of family courts in respect of the welfare and best interest of children are important sources of information for judges considering immigration appeals. If an appellant wishes to advance a case that the child’s welfare will be jeopardised by removal because it would break up existing patterns of contact with another parent or relative, one would expect to see clear and reliable evidence submitted to that effect. See RS (immigration and family court proceedings) India [2012] UKUT 00218(IAC).

McFarlane LJ
[2012] UKUT 216 (IAC)
Bailii
England and Wales

Immigration, Family

Updated: 01 November 2021; Ref: scu.461940

CM v STS: SCS 2 Sep 2008

cm_stsSCS2008

The pursuer sought payment of substantial sums, having been disadvantaged by ceasing work to care for the parties’ children. She also asserted that the defender had been advantaged by her taking the care of the children. The parties were not married but had lived together, and a sum could now be claimed on cessation under the 1996 Act. The defender had fallen into arrears with his payments to the Child Support Agency.
Held: The court should exclude consideration of payments which might be recoverable by the Child Support Agency. The 2006 Act contained a danger that courts might make an order without regard to the resources available to a party to meet it.
Whilst each case is to be judged on its own merits, a contribution by one partner or spouse who looks after a house and or children can be balanced by the financial contributions made by the other spouse or partner and vice versa. Lord Matthews said: ‘The fact that the 1985 Act and the 2006 Act approach the problem from different directions does not, I think, affect the matter in principle. Either factors balance out or they do not. The effect of the balancing exercise will of course lead to difference consequences. Under the 1985 Act the principle of equal division may or may not be affected. Under the 2006 Act the payment of a capital sum may or may not be affected.’

Lord Matthews
[2008] ScotCS CSOH – 125, 2008 GWD 31-473, 2008 SLT 871
Bailii
Family Law (Scotland) Act 2006 28(2)(a), Family Law (Scotland) Act 1985
Citing:
Cited – Ali v Andrew SCS 29-Jan-2003
. .
Cited – Welsh v Welsh 1994
. .
Cited – Adams v Adams (No 1) 1997
Lord Gill said: ‘The pursuer next relies on s 9(1)(b) (as read with s 9(2) and s 11(2).
She argues that the defender has enjoyed an economic advantage in that he has been able to further his career whereas she has prejudiced hers by bringing . .
Cited – Loudon v Loudon SCS 1994
Lord Milligan said: ‘I have considered carefully counsel’s submission on the question of the appropriate allocation of the matrimonial property. I am left in no doubt whatsoever that this should be an allocation in which, in the whole circumstances, . .

Cited by:
Cited – Gow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .

Lists of cited by and citing cases may be incomplete.

Scotland, Family, Child Support

Updated: 01 November 2021; Ref: scu.273111

Traversa v Freddi: CA 14 Feb 2011

Jurisdiction in Cross border divorce

The parties had divorced in Italy. After the wife sought possession of her house in London where H lived, he appealed against refusal of leave to apply for an order under the 1984 Act, the court having found insufficient substantial grounds for allowing the application to go ahead.
Held: Leave was granted. The judge had refused leave on the basis of the law as it then applied, but Lord Collins in Agbaje had restated the law and the application must be looked at anew. The gloss added by Mostyn J in CG was unjustified: ‘the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter.’ Sufficiently substantial grounds had been shown here to allow the application to proceed. Furthermore, applying Boogard, Regulation Brussels I cannot be invoked as the basis for the exclusive exercise of jurisdiction in relation to the property consequences of divorce.
Applications for leave should continue to be heard initially ex parte pending the new rules.

Thorpe, Rimer, Munby LJJ
[2011] EWCA Civ 81, [2011] Fam Law 464
Bailii
Matrimonial and Family Proceedings Act 1984 Part III, Regulation Brussels I
England and Wales
Citing:
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 – 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 – Van den Boogaard v Laumen ECJ 27-Feb-1997
ECJ If the reasoning of a decision rendered in divorce proceedings shows that the provision which it awards is designed to enable one spouse to provide for himself or herself, or if the needs and resources of . .
Cited – A Elaine Jordan v Roy Gregory Jordan Admn 12-Jul-1999
The parties had married and divorced and made a financial settlement in the US, but the husband had returned to live in the UK. The wife now sought in effect to enforce the balance of the US order here. . .
Criticised – CG v IF FD 12-May-2010
The husband sought an order under section 13 after the parties had been divorced in Switzerland. . .
Cited – Al-Khatib v Masry FD 2002
The court heard an application for an ancillary relief order in divorce proceedings.
Held: General reputation prevailing in the community, and the mere opinions, inferences or beliefs of witnesses, are inadmissible in proof of material facts. . .
Cited – Moore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 November 2021; Ref: scu.428865

Yorston and Others, Re (Matrimonial Causes Act 1973: Improper Petitions): FC 10 Sep 2021

Petitions with Identical Particulars Dismissed

28 divorce petitions had particulars including the exact same form of words for the allegations. The court could not accept that the behaviour had been identical and concluded that the petitions were improper.
Held: The petitions were dismissed. A reference to the DPP was not necessary,

Moor J
[2021] EWFC 80
Bailii
England and Wales
Citing:
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

Updated: 01 November 2021; Ref: scu.668488

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, restricting his ancillary relief.
Held: H’s appeal failed (Lady Hale dissenting). Separation agreements had come to be accepted since 1957. Post-nuptial agreements had now been accepted, and there remained no reason of principle to maintain the distinction with pre-nuptial or ante-nuptial agreements.
The court approved Macleod in that the old rule that agreements providing for future separation are contrary to public policy is obsolete and should be swept away. This was not however to be restricted to post-nuptial agreements, and ‘the Board in MacLeod was wrong to hold that post-nuptial agreements were contracts but that ante-nuptial agreements were not.’ The court advanced the following proposition, to be applied in the case of both ante- and post-nuptial agreements: ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’
Lady Hale (disssenting) felt that there remained good reason to take different approaches to agreements made before and after a marriage. The court’s duty was to look to the situation which applied at the tme it came to make its order. It would be for parliament to make proper reforms in this area.

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Collins, Lord Kerr
[2010] UKSC 42, [2010] 2 FLR 1900, [2010] 3 FCR 583, [2010] Fam Law 1263, [2011] 1 All ER 373, [2010] 3 WLR 1367, [2011] 1 AC 534
Bailii, SC, SC Summary, Bailii Summary
Matrimonial Causes Act 1973 23 24 25, Matrimonial and Family Proceedings Act 1984, Family Law Act 1996
England and Wales
Citing:
At First instance – 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.
Appeal from – Radmacher v Granatino CA 2-Jul-2009
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 . .
Approved – 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 – Cocksedge v Cocksedge 25-Jul-1844
A covenant before marriage that, in case of any separation taking place between the husband and wife, the husband shall make a certain provision for his wife, is void. . .
Cited – H v W 4-May-1857
Any agreement made before or after marriage, which contemplates a voluntary separation of husband and wife, is void as contrary to the policy of the law. By an ante-nuptial settlement property of the husband was limited during the joint lives of . .
Cited – Hyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .
Cited – 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 – Bennett v Bennett CA 1952
The wife sued for arrears of maintenance payments payable under a deed in consideration for which the wife covenanted not to proceed with the prayers in the petition for maintenance, to consent to their being dismissed, and not to present any . .
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 – Camm v Camm CA 1982
Ancillary relief was claimed in the face of the terms of a separation agreement.
Held: If asked to look at an ancillary relief settlement agreed between the parties, the court could do so where the original provision was inadequate. Here, the . .
Cited – Smith v McInerney FD 1994
H had entered into a separation agreement with his wife, but now sought a lump sum and property adjustment order when his circumstances changed as a result of being made redundant.
Held: Thorpe J cited Edgar v Edgar and Camm v Camm and said: . .
Cited – N v N (Jurisdiction: Pre-Nuptial Agreement) FD 12-Jul-1999
A pre-nuptial agreement to abide by the decisions of the Beth Din Rabbinical Court could not be enforced so as to prevent a civil divorce proceeding through to its termination, but where the agreement required the husband first to obtain a Get, and . .
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 – 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 . .
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 – 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 – 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 – J v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
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 – 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 – K v K (Ancillary Relief: Prenuptial Agreement) FD 2003
The court set out out a serious of questions to be considered in determining whether or not to uphold the terms of a prenuptial agreement: ‘I distill from the authorities the following questions, which I ask myself in determining the issue whether . .
Cited – X v X (Y and Z intervening) FD 9-Nov-2001
The court considered an agreement under which the quid pro quo for the payment of a sum of money was a husband’s agreement not to defend his wife’s petition for divorce grounded on his behaviour (even though he believed that he had grounds for . .
Cited – C v C (Divorce: Stay of English Proceedings) FD 2001
The existence of a French ante-nuptial agreement was a significant factor in the staying of the English proceedings for divorce. . .
Cited – Van den Boogaard v Laumen ECJ 27-Feb-1997
ECJ If the reasoning of a decision rendered in divorce proceedings shows that the provision which it awards is designed to enable one spouse to provide for himself or herself, or if the needs and resources of . .
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 . .
Cited – Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .

Cited by:
Cited – Traversa v Freddi CA 14-Feb-2011
Jurisdiction in Cross border divorce
The parties had divorced in Italy. After the wife sought possession of her house in London where H lived, he appealed against refusal of leave to apply for an order under the 1984 Act, the court having found insufficient substantial grounds for . .
Cited – Abdul and Others v Director of Public Prosecutions Admn 16-Feb-2011
The defendants appealed against convictions for using threatening, abusive or insulting words or behaviour or disorderly behaviour . . within the hearing or sight of a person likely to be caused harassment, alarm or distress. He had attended a . .
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 . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 November 2021; Ref: scu.425353

N v N (Jurisdiction: Pre-Nuptial Agreement): FD 12 Jul 1999

A pre-nuptial agreement to abide by the decisions of the Beth Din Rabbinical Court could not be enforced so as to prevent a civil divorce proceeding through to its termination, but where the agreement required the husband first to obtain a Get, and a delay would not prejudice the child, there remained a discretion in the court to delay contact proceedings until the Get had been applied for. Although they were unenforceable as such, ante-nuptial agreements might have evidential weight in subsequent proceedings for divorce.

Wall J
Times 12-Jul-1999, Gazette 11-Aug-1999, [1999] EWHC Fam 838, [1999] 2 FLR 745, [1999] Fam Law 691, [1999] 2 FCR 583
Bailii
England and Wales
Cited by:
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .

Lists of cited by and citing cases may be incomplete.

Family, Ecclesiastical

Updated: 01 November 2021; Ref: scu.84148

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 might, when viewed in the context of the other circumstances of the case, prove influential or even crucial. Where other jurisdictions, both in the United States and in the European Community, have been persuaded that there are cases where justice can only be served by confining parties to their rights under prenuptial agreements, we should be cautious about too categorically asserting the contrary. I can find nothing in section 25 to compel a conclusion, so much at odds with personal freedoms to make arrangements for ourselves, that escape from solemn bargains, carefully struck by informed adults, is readily available here.’
Wilson J said: ‘I am aware of a growing belief that, in the despatch of a claim for ancillary relief in this jurisdiction, no significant weight will be afforded to a prenuptial agreement, whatever the circumstances. I would like to sound a cautionary note in that respect. No one could have more profound respect than I for the observations of Thorpe L.J. In F. v. F. (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, 66 he said:
‘In this jurisdiction [prenuptial agreements] must be of very limited significance. The rights and responsibilities of those whose financial affairs are regulated by statute cannot be much influenced by contractual terms which were devised for the control and limitation of standards that are intended to be of universal application throughout our society.’
There is a danger that these wide words might be taken out of context. There is no doubt that, where the English court proceeds to determine an application for ancillary relief, section 25 of the Matrimonial Causes Act 1973 precludes any choice of foreign law, however vividly the circumstances of the case might protest its relevance. So the application is of English law and under section 25(1) regard must be had to all the circumstances of the case. In F. v. F. itself, the result of a strict application of the effect of the prenuptial agreements would have been, as the judge said, ‘ridiculous.’ In those circumstances they inevitably constituted circumstances of negligible significance. But there will come a case-were I to refuse a stay, might this be it?-where the circumstances surrounding the prenuptial agreement and the provision therein contained might, when viewed in the context of the other circumstances of the case, prove influential or even crucial. Where other jurisdictions, both in the United States and in the European Community, have been persuaded that there are cases where justice can only be served by confining parties to their rights under prenuptial agreements, we should be cautious about too categorically asserting the contrary. I can find nothing in section 25 to compel a conclusion, so much at odds with personal freedoms to make arrangements for ourselves, that escape from solemn bargains, carefully struck by informed adults, is readily available here. It all depends. The matter must be left open and on the footing that, were she to be enabled to claim ancillary relief in England, the wife might secure an award of substantial further provision. In what follows my duty is to appraise the relevance of the prenuptial agreement to the determination not of the wife’s potential application for ancillary relief but of the entirely different issue as to forum.’

Wilson J
Times 16-Apr-1997, Times 27-Mar-1997, [1997] 1 WLR 1200
Domicile and Matrimonial Proceedings Act 1973
England and Wales
Cited by:
Cited – Radmacher v Granatino CA 2-Jul-2009
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 . .
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .

Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 November 2021; Ref: scu.88958

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 looks to this husband and this wife, or vice versa, but one also looks at what is reasonable. That is the point referred to by Roskill LJ in his judgment in the same case at p 1125, where he adopted as correct the test which Dunn J had applied in the Livingstone-Stallard case. And again referring to O’Neill: ‘That, in effect, is proposing precisely the same test as referred to by Cairns LJ quoting from Rayden. One considers a right-thinking person looking at the particular husband and wife and asks whether the one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned. That, it will readily be appreciated, is a substantially different test from that applied by the recorder in directing himself in the instant case.’
May LJ said: ‘the gravity or otherwise of the conduct complained of is of itself immaterial. What has to be asked, as will appear from the judgment in O’Neill, is whether the behaviour is such that the petitioner cannot reasonably be expected to live with the respondent.’

May LJ, Ewbank J
[1988] 2 FLR 365, [1987] EWCA Civ 4
Bailii
Matrimonial Causes Act 1973 1(2)(b)
England and Wales
Citing:
Cited – O’Neill v O’Neill CA 1975
The court considered the level of unreasonable behaviour necessary to found a decree of divorce.
Cairns LJ said: ‘The right test is, in my opinion, accurately stated in Rayden on Divorce . . ‘The words ‘reasonably be expected’ prima facie . .
Cited – 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 by:
Cited – Luong v Loung (Phoung) CA 15-Apr-1997
The husband appealed refusal of a decree of divorce. The judge found that the wife’s behaviour was insufficient to found a decree.
Held: The judge had applied the correct test. At issue here was really the wish of the huband to introduce . .
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: . .
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: 01 November 2021; Ref: scu.262648

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 dispute, the AG now asked: ‘(i) Whether there are ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of s. 11 of the 1973 Act; and
(ii) If there are, whether the December 1998 ceremony was such a ceremony, currently described as a non-marriage, or whether, as Williams J decided, it created a void marriage.’
Held: The ceremony had not created a relationship in law which could be declared a nullity. At no time did the parties seek to effect a legal marriage and, at all times, not only the Petitioner but also the Imam and the Respondent were aware that for there to be a legal marriage it was necessary for there to be a civil ceremony. The judge’s view, that Article 8 supports an interpretation and application in favour of a void rather than invalid marriage, depended upon the couple having ‘sought to effect’ or having ‘intended’ to effect a legal marriage. The judge instead, relied upon the continuum argument, namely the parties’ agreement at the date of the Nikah that they would have a civil ceremony at some future date with the intention to effect a legal marriage. The judge’s analysis in this respect would also, again, fall foul of s. 1 of the 1970 Act.
Article 12, like A1P1, is not engaged and even if it were, there would be no breach on the facts of this case.
The decision before the court cannot properly be described as an action concerning children and we cannot see how it can be said that the best interests of a child can turn what was neither a void nor valid marriage, into a void or valid marriage. In our judgment, the action in question relates solely to the status of the adult applicant.
The court rejected the submission that the parties’ intentions can change what would otherwise be a non-qualifying ceremony into one which is within the scope of the 1949 Act. Their intentions provide no legal justification for changing the effect of the only ceremony which in fact took place.

Sir Terence Etherton MR, Lady Justice King and Lord Justice Moylan
[2020] EWCA Civ 122
Bailii, Judic
Matrimonial Causes Act 1973 11, Family Law Act 1986 58(5)(a), Law Reform (Miscellaneous Provisions) Act 1970 1, European Convention on Human Rights 8
England and Wales
Citing:
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 . .
Appeal from – Akhter v Khan FC 31-Jul-2018
The petitioner issued a petition for divorce from the respondent, or alternatively a decree of nullity. The husband argued against both saying that the parties had not entered a marriage valid according to English law. W averred that the presumption . .
Cited – Catterall v Sweetman ConC 8-Jul-1845
. .
Cited – Kelly (orse Hyams) v Kelly 1932
Lord Merrivale P said: ‘In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage law could be played . .
Cited – Regina v Bham CCA 1965
A Mohammedan leader of a Muslim religious sect was charged with and convicted of the offence of solemnising a marriage other than in a licensed building. The service had been a Nichan in a private house, performed in accordance with Islamic law and . .
Cited – Collett v Collett FD 1968
Discussing a proposition that ‘The general tendency of the law as it has been developed has been to preserve marriages where the ceremonial aspects were in order’, Ormrod J held that: ‘The control of the formation of marriage in this country has a . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – 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. . .
Cited – Greaves v Greaves 1872
. .
Cited – Risk (otherwise Yerburgh) v Risk 1951
the court had no jurisdiction to grant a decree because, under English law, the marriage ceremony which had taken place in Egypt was ‘no marriage’. . .
Cited – Gereis v Yagoub 1997
. .
Cited – Al-Saedy v Musawi FD 29-Oct-2010
The wife sought a divorce. The respondent denied that there had been any marriage recognised in law. . .
Cited – Way v Way FD 1951
Hodson, J. said: ‘Questions of consent are to be dealt with by reference to the personal law of the parties rather than by reference to the law of the place where the contract was made. This view is not covered by direct authority, but it is, I . .
Cited – Silver v Silver CA 1955
. .
Cited – Kenward v Kenward CA 1961
. .
Cited – Dukali v Lamrani FD 15-Mar-2012
W sought permission to seek financial relief under section 13. H denied that there had been a marriage. There had been a civil ceremony at the Moroccan consulate, the parties each having dual Moroccan and British citizenship, and: ‘the issue is . .
Cited – Sharbatly v Shagroon CA 21-Nov-2012
. .
Cited – Ram v Ram and others CA 16-Nov-2004
. .
Cited – Work v Gray CA 11-Apr-2017
Husband’s appeal from order for equal division of family assets. . .
Cited – Johnston and Others v Ireland ECHR 18-Dec-1986
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (victim); Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Pecuniary damage – claim rejected; Non-pecuniary damage . .
Cited – 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 – 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: . .
Cited – Serife Yigit v Turkey ECHR 20-Jan-2005
A complaint as to the privileging of civil over religious marriages in Turkey was found admissible.
‘ the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities. There may in addition . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – Hamalainen v Finland ECHR 16-Jul-2014
Grand Chamber . .
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 . .

Lists of cited by and citing cases may be incomplete.

Family, Human Rights

Updated: 01 November 2021; Ref: scu.648155

Erhire v E O-I (by his next friend): CA 24 Mar 2011

The mother appealed against a sentence of eight months imprisonment imposed for contempt of court in having broken an order intended to protect the child against being removed to Nigeria with a view to forcing him into a marriage. On complaint of a breach, she had undertaken to write letters which would secure his return. She did so, but then wrote additionally with the effect of countermanding the letter. She then failed to comply after being given further opportunity to mend the breach.
Held: The appeal failed. The judge had properly considered the points now raised on appeal, and bearing in mind the maximum sentence, this was clearly within the paramaters of a sentence proper for such a breach.

Lloyd, Wilson LJJ
[2011] EWCA Civ 555, [2011] Fam Law 794, [2011] 2 FLR 793
Bailii
Forced Marriage (Civil Protection) Act 2007, Family Law Act 1996 63A
England and Wales
Citing:
Cited – Hale v Tanner CA 22-Aug-2000
When attaching a power of arrest on a non-molestation order the court should consider attaching it only to that element which restricts violence or proximity rather than to any part relating to harassment. When considering sentence for a breach, the . .
Cited – CJ v Flintshire Borough Council CA 15-Apr-2010
The applicant appealed against a refusal to allow his early release from prison having been sentenced to 21 months for contempts of court.
Held: The appeal failed. The court set out eight questions which might be asked before allowing such a . .
Cited – Slade v Slade CA 17-Jul-2009
Contempt sentence to reflect existing punishment
The wife appealed against a sentence of imprisonment imposed for a second contempt of court. She said that the behaviour complained of had already been dealt with in criminal proceedings.
Held: The sentence was reduced. The second court should . .

Lists of cited by and citing cases may be incomplete.

Family, Contempt of Court

Updated: 31 October 2021; Ref: scu.439814

Ansari v Ansari and others: CA 19 Dec 2008

The wife had registered her right of occupation under the 1996 Act, but the husband sold the house subject to the registered right, and the purchaser had charged the property. She now sought an order restricting the use of the proceeds of sale, and challenged the new mortgage.
Held: The wife’s appeal failed. The subsection should not be used to set aside a subsequent disposition where the party was not party to any conspiracy or had notice of any intention to defeat the wife’s rights: ‘The discretion conferred by sub-section (3), even if it can be used to set aside dispositions subsequent to the first disposition in a case where the parties acted in bad faith, should certainly not be used to set aside a subsequent disposition for valuable consideration to a person who acted in relation to it in good faith and without such notice.’

Longmore LJ, Wilson LJ, Lawrence Collins LJ
[2008] EWCA Civ 1456
Bailii, Times
Family Law Act 1996 30
England and Wales
Citing:
Not applied – Green v Green 1981
Section section 37(3) of the 1983 Act was not wide enough in its terms to enable a judge to set aside a disposition granted by someone other than the husband or wife. That was because sub-section 3 only enabled a judge to give directions . .

Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 31 October 2021; Ref: scu.278972

Yemshaw v London Borough of Hounslow: SC 26 Jan 2011

The appellant sought housing after leaving her home to escape domestic violence. The violence was short of physical violence, and the authority had denied a duty to rehouse her. She said that the term ‘domestic violence’ in the Act was not intended to apply only to physical violence.
Held: Her appeal succeeded. The term ‘domestic violence’ had come to acquire a meaning beyond physical violence only. The term was not a term of art, but may have several meanings, and these included definitions given in the court’s own practice directions: ”Domestic violence’ includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.’

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown
[2011] UKSC 3, UKSC 2010/0060, [2011] 1 WLR 433, [2011] PTSR 462, [2011] Fam Law 349, [2011] HLR 16, [2011] 1 All ER 912, [2011] NPC 9
Bailii, Bailii Summary, SC, SC Summ
Housing Act 1996 177(1)
England and Wales
Citing:
Overruled – Royal Borough of Kensington and Chelsea v Danesh CA 5-Oct-2006
The tenant family appealed against a decision that the authority had no duty to rehouse them after they suffered violence. They had been living for a year in Swansea and on being granted indefinite leave to remain they were now eligible under Part . .
Appeal from – Yemshaw v London Borough of Hounslow CA 15-Dec-2009
‘The sole but important issue on this appeal is the meaning of ‘violence’ in section 177(1) of the Housing Act 1996 (‘the Act’). The question is whether, for the purposes of that provision, ‘violence’ requires some sort of physical contact or . .
Cited – Regina v Hillingdon London Borough Council Ex parte Puhlhofer HL 2-Jan-1986
Not Homeless Even if Accomodation Inadequate
The applicants, a married couple, lived with a young child and later also a baby in one room of a guest house. They were given breakfast but had no cooking or washing facilities. They succeeded on a judicial review of the housing authority’s . .
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 – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Bond v Leicester City Council CA 23-Oct-2001
The applicant had been the victim of domestic violence. She applied to be rehoused, but the authority considered her to be intentionally homeless, since she could have applied to court for an injunction excluding the violent partner.
Held: . .
Cited – AN (Pakistan) v Secretary of State for The Home Department CA 6-Jul-2010
The claimant appealed against refusal of indefinite leave to remain. She said that she feared if she returned to Pakistan she would be subject to domestic violence. Though her husband had received prison sentences of three years for offences of . .

Cited by:
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Cited – English Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .

Lists of cited by and citing cases may be incomplete.

Housing, Family

Leading Case

Updated: 31 October 2021; Ref: scu.428280

Gow v Grant: SC 24 May 2012

The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did not seek to replicate the regime on the divorce of a married couple, and it was wrong to try to do so. The legislative background suggested the objective of fairness, allowing the court to correct any imbalances arising out of a non-commercial relationship where the parties were quite likely to have made contributions or sacrifices without at the time counting the cost or bargaining for a return. Section 9 allowed fair compensation, but the calculations are not precise, and it would be wrong to approach section 28 on the basis that it was intended simply to enable the court to correct any clear and quantifiable economic imbalance that may have resulted from the cohabitation.
The phrase ‘in the interests of the defender’ had been interpreted too narrowly in the Court of Session, and: ‘where the guiding principle is one of fairness, its more natural meaning is directed to the effect of the transaction rather than the intention with which it was entered into. The reference to the defender at the end of the phrase does, of course, require that the disadvantage which the applicant suffered was in his interests. But it does not say that this must have been his interests only, or that the fact that it was in the applicant’s interests also means that it must be left out of account. Still less does it say that ‘interests’ have to be equated with economic advantage or benefit. ‘

Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 29, UKSC 2011/0184
Bailii, Bailii Summary, SC, SC Summary
Family Law (Scotland) Act 2006 9 28
England and Wales
Citing:
Cited – Longworth v Yelverton HL 1867
A declarator of marriage, even after the death of the other party, is a judgment in rem, and it is conclusive proof that a marriage had been constituted, and is binding on all persons whomsoever. . .
Cited – Gow v Grant SCS 22-Mar-2011
The parties had lived together, but remained unmaried. The relationship broke down and Ms Gow claimed under the 2006 Act. Mr Grant now appealed.
Held: The appeal succeeded. Mrs Gow’s application for an award of a capital sum was refused. There . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Appeal from – Gow v Grant SCS 22-Mar-2011
The parties had lived together, but remained unmaried. The relationship broke down and Ms Gow claimed under the 2006 Act. Mr Grant now appealed.
Held: The appeal succeeded. Mrs Gow’s application for an award of a capital sum was refused. There . .
Cited – CM v STS SCS 2-Sep-2008
cm_stsSCS2008
The pursuer sought payment of substantial sums, having been disadvantaged by ceasing work to care for the parties’ children. She also asserted that the defender had been advantaged by her taking the care of the children. The parties were not married . .
Cited – Lindsay v Murphy 2010
The statutory purpose set out in the Act does no more than reflect the reality that cohabitation is a less formal, less structured and more flexible form of relationship than either marriage or civil partnership. . .
Cited – Burns v Burns CA 1984
Long Relationship Not Enough for Interest in Home
The parties lived together for 17 years but were not married. The woman took the man’s name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Cited – 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 – Mitchell v Gibson ScSf 2011
Sheriff Principal R A Dunlop QC considered the need to show ‘disadvantage’ under the Act and concluded that, provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum . .

Lists of cited by and citing cases may be incomplete.

Scotland, Family

Leading Case

Updated: 31 October 2021; Ref: scu.462499

Slade v Slade: CA 17 Jul 2009

Contempt sentence to reflect existing punishment

The wife appealed against a sentence of imprisonment imposed for a second contempt of court. She said that the behaviour complained of had already been dealt with in criminal proceedings.
Held: The sentence was reduced. The second court should be fully informed of the factors and circumstances reflected in the first sentence. It is the conduct which is not twice punishable: ‘even if a civil judge were to regard the punishment given by the criminal court for certain conduct as too lenient, it would be improper for him to use his power of committal in respect of that self-same conduct in order to top up the punishment to what he regards as a proper level. What he must do is to sentence only for such conduct as was not the subject of the criminal proceedings.’
It would be good practice for the court which imposes a sentence of imprisonment for contempt always expressly to ask itself in judgment whether the sentence might properly be suspended.
Wall LJ discussed the court’s role on an appeal against sentence for contempt of court: ‘The result, I think, is that this court is unlikely to interfere unless it is of the view that the sentence passed is manifestly disproportionate or excessive. The judge is local, on the ground, and has the ‘feel’ of the case. Any tinkering by this court is to be avoided.’

Lord Justice Ward, Lord Justice Wall and Lord Justice Wilson
[2009] EWCA Civ 748, Times 20-Aug-2009, [2010] 1 FCR 227, [2009] Fam Law 925, [2010] 1 WLR 1262, [2010] CP Rep 3, [2010] 1 FLR 160
Bailii
Contempt of Court Act 1981 14, Protection from Harassment Act 1997 3
England and Wales
Citing:
Cited – Smith v Smith CA 1991
A husband committed two breaches of a non-molestation order; breaking the terms of a suspended sentence of committal. The breaches were extremely serious: the first was setting fire to his wife’s house and the second was assaulting her so severely . .
Cited – Hale v Tanner CA 22-Aug-2000
When attaching a power of arrest on a non-molestation order the court should consider attaching it only to that element which restricts violence or proximity rather than to any part relating to harassment. When considering sentence for a breach, the . .
Applied with comments – Lomas v Parle CA 18-Dec-2003
The respondent had been sentenced to two months imprisonment for breaches of orders under the Act. The wife appealed, seeking to increase the sentence. The maximum sentence was two years.
Held: The court had to consider such cases in the light . .
Cited – Director of Public Prosections v Tweddell QBD 2001
In the county court the husband had been committed to prison for three months for assaulting his wife in breach of an injunction. He was than charged in the magistrates’ court in respect of the same assault.
Held: The Court allowed the . .
Cited – Brewer v Brewer CA 1989
Purchas LJ considered an appeal against sentence in contempt of court, where the behaviour would in any event be criminal and said that: ‘in most cases where there is not a previous record of criminal violence, the court would normally find it . .
Cited – Head v Orrow CA 16-Dec-2004
A court asked to sentence for contempt of court is not sentencing for the criminal equivalent of what the contemnor has done, and ‘Great care must be taken, if there are concurrent criminal or civil proceedings, to ensure that sentences in two or . .
Cited – Hammerton v Hammerton CA 12-Apr-2007
Appeal against sentence of two months imprisonment for contempt of court. The court emphasised the need to ensure a fair process in such cases. The court was critical of the judge who sentenced a contemnor without hearing mitigation and without . .

Cited by:
Cited – Erhire v E O-I (by his next friend) CA 24-Mar-2011
The mother appealed against a sentence of eight months imprisonment imposed for contempt of court in having broken an order intended to protect the child against being removed to Nigeria with a view to forcing him into a marriage. On complaint of a . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Family

Updated: 31 October 2021; Ref: scu.349051

Fowler v Barron: CA 23 Apr 2008

The parties had lived together for many years but without marrying. The house had been put in joint names, but without specific advice on the issue or any express declaration of trust. In practice Mr Barron made the direct payments for the house and Mrs Fowler paid for household items. Mrs Fowler appealed a finding that there had been no intention to create equal interests, and that she had no interest in the capital.
Held: The judge had erred in concenrating so much on the respective financial contributions, and the respondent had not fully discharged the onus of negativing the intent that the parties should share the property equally. The appeal was allowed, and Mrs Fowler awarded a one half share in the house.

Waller LJ, Arden LJ, Toulson LJ
[2008] EWCA Civ 377
Bailii
England and Wales
Citing:
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Malayan Credit Ltd v Jack Chia-MPH Ltd PC 1986
The Board considered whether there were only three situations in which joint owners of property could be found to be tenants in common, and whether there were other circumstances which could lead to a contrary conclusion.
Held: It was . .
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Carlton v Goodman CA 29-Apr-2002
The defendant claimed an interest in a house. The deceased had been a sitting tenant, and wanted to purchase his house. He could not obtain finance alone, and she joined with him, becoming liable under the mortgage. She did not live in the house . .

Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 31 October 2021; Ref: scu.267044

Balfour v Balfour: CA 1919

Mr Balfour had set out in an apparently formal legal way, an agreement to give his wife pounds 30 a month by way of maintenance while he was away in Ceylon. Mrs Balfour sought to enforce the agreement.
Held: Within a family there is a rebuttable presumption against an intention to form legal relations. No sufficient evidence had been shown by Mrs Balfour to counter that presumption. Lord Atkin described, as a presumption of fact that family arrangements do not give rise normally to binding contracts: ‘To my mind those agreements, or many of them, do not result in contracts at all, and they do not result in contracts even though there may be what as between other parties would constitute consideration for the agreement. The consideration, as we know, may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. That is a wall-known definition, and it constantly happens. I think, that such arrangements made between husband and wife are arrangements in which there are mutual promises, or in which there is consideration in the form within the definition that I have mentioned. Nevertheless, they are not contracts, and they are not contracts because the parties did not intend that they should be attended by legal consequences’.

Lord Atkin
[1919] 2 KB 571, [1918-19] All ER Rep 860, (1919) 88 LJKB 1054, (1919) 121 LT 346, (1919) 35 TLR 609
England and Wales
Cited by:
Cited – Esso Petroleum Limited v Commissioners of Customs and Excise HL 10-Dec-1975
The company set up a scheme to promote their petrol sales. They distributed coins showing the heads of members of the English football team for the 1970 World Cup. One coin was given with each for gallons of petrol. The Commissioners said that the . .
Distinguished – Merritt v Merritt CA 1970
H and W owned their house jointly. When H left for another woman, he signed an agreement to pay Mrs Merritt a monthly sum, and eventually to transfer the house to her if Mrs M kept up the monthly mortgage payments. When the mortgage was paid off Mr . .
Cited – Jones v Padavatton CA 29-Nov-1968
A mother had persuaded her daughter to come to England to study for the Bar, promising to allow her to stay in her house Several years later, the daughter had still not passed any Bar examinations. They fell out, and the mother sought possession of . .

Lists of cited by and citing cases may be incomplete.

Contract, Family

Leading Case

Updated: 31 October 2021; Ref: scu.242895

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 parties had previously compromised a claim for ancillary relief in the divorce on these terms. The trustee said that under Xydhias, the compromise was not an enforceable contract. The wife argued that Xydhias was obiter and contrary to Smallman.
Held: Whilst the court might have preferred the analysis of Ward LJ in Soulsbury the issue did not exactly arise. A precondition of there being a binding agreement was that the compromise deal must in any event satisfy the ordinary principles of contract. In this case, at the appropriate time, a vital element of the agreement, relating to pension sharing, was not yet concluded. There could be no agreement to enforce, and the appeal failed.

Cooke J
[2010] EWHC 2272 (Ch), [2010] NPC 93, [2010] 3 FCR 311, [2010] BPIR 1443
Bailii
Insolvency Act 1986 284
England and Wales
Citing:
Cited – Smallman v Smallman CA 1972
An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the . .
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 – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 31 October 2021; Ref: scu.423813

Dyson Holdings Ltd v Fox: CA 17 Oct 1975

The defendant had lived with the tenant for 21 years until his death. They were unmarried and had no children. Reversing the County Court judge, the Court of Appeal ruled that she was a member of his family. It was absurd to distinguish between two couples on the basis that one had children and the other did not. (Lord Denning) and ‘The popular meaning given to the word ‘family’ is not fixed once and for all time. I have no doubt that with the passage of years it has changed. The cases reveal that it is not restricted to blood relationships and those created by the marriage ceremony. It can include de facto as well as de jure relationships. The popular meaning of ‘family’ in 1975 would, according to the answer of the ordinary man, include the defendant as a member of Mr. Wright’s family. This is not to say that every mistress should be so regarded. Relationships of a casual or intermittent character and those bearing indications of impermanence would not come within the popular concept of a family unit.’ per James LJ, and ‘Now, it is, I think, not putting it too high to say that between 1950 and 1975 there has been a complete revolution in society’s attitude to unmarried partnerships of the kind under consideration. Such unions are far commoner than they used to be. The social stigma that once attached to them has almost, if not entirely, disappeared. The inaccurate but expressive phrases ‘common law wife’ and ‘common law husband’ have come into general use to describe them. The ordinary man in 1975 would, in my opinion, certainly say that the parties to such a union, provided it had the appropriate degree of apparent permanence and stability, were members of a single family whether they had children or not.’ (Bridge LJ)

Lord Denning MR, James LJ, Bridge LJ
[1976] QB 503, [1975] EWCA Civ 8
Bailii
England and Wales
Citing:
Disapproved – Gammans v Ekins CA 1950
The plaintiff had lived with a woman tenant for over 20 years and they had been regarded in the neighbourhood as man and wife.
Held: He could not thereby be deemed a member of her family for the Act of 1920. If their relationship was sexual . .

Cited by:
Confined to its facts – Helby v Rafferty CA 1979
The court declined to hold that a man who had lived with a woman tenant for five years before her death were part of the same family because they had deliberately opted to retain their formal independence and they had not been recognised as being . .
Confined to its facts – Watson v Lucas CA 1980
A woman who had lived with a man, although he remained married to his wife, was a member of his family for the purpose of Schedule 1 to the Act of 1977 because of the lasting relationship between them. . .
Cited – Carega Properties SA (formerly Joram Developments Ltd) v Sharratt HL 1979
A widow aged 75 had developed a platonic relationship with a young man aged 24. He lived in her flat for nearly 20 years until she died. They treated themselves as aunt and nephew. The trial judge held that through their relationship this elderly . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .

Lists of cited by and citing cases may be incomplete.

Family, Housing

Leading Case

Updated: 31 October 2021; Ref: scu.215911

Liaw v Lee (Recognition of Divorce): FD 3 Jun 2015

The applicant sought that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam in favour of the respondent husband be refused recognition in England and Wales.
Held: The application was granted: ‘the husband and his solicitor engaged in sharp practice in obtaining the divorce in Malaysia. A petition was filed which was knowingly false. The case that the wife had effectively disappeared and that there was no alternative means of effecting service on her was again knowingly false. The reasons for expediting Decree Absolute were spurious and again represent a deliberate misleading of the Malaysian Court: the true reason was to prevent the wife from applying in the waiting period to set aside the decree nisi.’
The Court examined the underused Council Regulation finding that it was given a discretion. There were balancing interests: ‘Militating against refusal is the fact that it is undesirable to have two different decrees absolute in different places in relation to the same marriage. A decree absolute is a matter of status and it is undesirable that the parties should have inconsistent decisions as to when their marriage was finally ended.’ and ‘ to decline to refuse recognition in this case would be grossly unjust and would in effect reward dishonesty and sharp practice. It would send out a signal that conduct such as I have described is tolerable.’
The wife was entitled to her decree Nisi, and the court and judge in Malaysia should notified of the decision.

Mostyn J
[2015] EWHC 1462 (Fam)
Bailii
Family Law Act 1986 51(3)(a), Council Regulation (EC) No 2201/2003 22(b)
England and Wales
Citing:
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – Duhur-Johnson v Duhur-Johnson FD 3-May-2005
The husband sought to stay divorce proceedings commenced here by his wife, saying that they had already been divorced in Nigeria. The wife said the Nigerian proceedings should not be recognised in English law.
Held: The cases established: 1) . .
Cited – Ivleva v Yates FD 4-Mar-2014
By an application Mrs Ivleva (formerly Yates) sought (i) recognition in this jurisdiction of a divorce granted in Ukraine in respect of her marriage to Mr Yates and (ii) the dismissal of divorce proceedings brought in this jurisdiction by Mr Yates. . .
Cited – Olafisoye v Olafisoye FD 28-Jul-2010
The court was asked to consider the recognition here of a foreign divorce.
Held: Holman J said: ‘I observe and stress at the outset the following matters. First, in this case, and probably in all such cases, the issue is very fact specific and . .
Cited – Golubovich v Golubovich CA 30-Mar-2011
The court considered an application under 51(3)(c) of the 1986 Act to refuse to recognise a foreign decree of divorce.
Held: The appeal was allowed against the non-recognition of a Russian divorce that followed proceedings between Russian . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 31 October 2021; Ref: scu.547552

Pentland-Clark v Wilson and Others: SCS 4 Jun 2013

Reclaiming motion at the instance of the pursuer and reclaimer in an action of count reckoning, payment and reduction which she raised in the Court of Session.

Lord Mackay of Drumadoon, Lady Dorrian, Lord Wheatley
[2013] ScotCS CSIH – 48
Bailii

Scotland, Family, Wills and Probate

Updated: 31 October 2021; Ref: scu.510221

Bandak v Howell: CA 11 Apr 2013

Appeal after intervention by creditor in ancillary relief application leading to order for sale of matrimonial home.
Thorpe, Jackson TomlinsonLJJ
[2013] EWCA Civ 531
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.509979

Mohan v Mohan: CA 22 May 2013

Appeal from order dismissing the wife’s endeavour to rely on documents and statements made by the husband during the course of complex proceedings to enforce a financial remedy order in the wife’s favour.
Thorpe, Raffrty, Kitchin LJJ
[2013] EWCA Civ 586
Bailii
England and Wales
Citing:
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.510011

Fabris v France [GC]: ECHR 7 Feb 2013

ECHR (Grand Chamber) Article 14
Discrimination
Difference in treatment of legitimate and illegitimate children for succession purposes: violation
Facts – The applicant was born in 1943 of a liaison between his father and a married woman who was already the mother of two children born of her marriage. In 1970 Mr and Mrs M. (the applicant’s mother and her husband) divided their property inter vivos (donation-partage) between their two legitimate children, whilst keeping a life interest in the property until their death. Mr M. died in 1981 and Mrs M. in 1994. In 1983 the tribunal de grande instance declared the applicant to be Mrs M.’s ‘illegitimate’ child. In 1998 the applicant brought proceedings against the two legitimate children in the tribunal de grande instance, seeking an abatement of the inter vivos division so that he could claim his share in his mother’s estate. At that time the Law of 3 January 1972 provided that children born of adultery could claim a share in their father or mother’s estate equal to half the share of a legitimate child. After the Court had found against France in 2000 in the case of Mazurek v. France, France enacted the Law of 3 December 2001 amending its legislation and granting children born of adultery identical inheritance rights to those of legitimate children. In a judgment of September 2004, the tribunal de grande instance declared the action brought by the applicant admissible and upheld his claim on the merits. Following an appeal by the legitimate children, the court of appeal set aside the lower court’s judgment. The applicant unsuccessfully appealed on points of law.
In a judgment of 21 July 2011, a Chamber of the Court held, by five votes to two, that there had been no violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 on the ground that the domestic courts, in applying the transitional provisions of the 1972 and 2001 Laws, had struck a proper balance between the long-established rights of Mr and Mrs M.’s legitimate children and the pecuniary interests of the applicant.
Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1
(a) Applicability of Article 14 – It was purely on account of his status as a child ‘born of adultery’ that the applicant had been refused the right to request an abatement of the inter vivos division signed by his mother. But for that discriminatory ground, he would have had a right, enforceable under domestic law, in respect of the asset in question. Whilst inter vivos gifts had the immediate effect of transferring ownership, they did not become a division for inheritance purposes until the death of the donor (in 1994 in the present case). By that date the applicant’s filiation had been established. It followed that the applicant’s pecuniary interests fell within the scope of Article 1 of Protocol No. 1 and the right to peaceful enjoyment of possessions safeguarded by that provision. This was sufficient to render Article 14 of the Convention applicable.
(b) Merits – The applicant was deprived of a reserved portion and definitively placed in a different situation from that of the legitimate children regarding inheritance of their mother’s estate. That difference in treatment derived from the 2001 Law, which restricted application of the new inheritance rights of children ‘born of adultery’ to successions opened prior to 4 December 2001 that had not given rise to division before that date. In interpreting the transitional provision concerned, the Court of Cassation had considered that division for inheritance purposes had taken place in 1994, at the time of the applicant’s mother’s death, in line with long-standing case-law authority to the effect that in respect of inter vivos divisions the death of the donor triggered both the opening of the succession and the division. A legitimate child who had been omitted from the inter vivos division or not yet conceived when the deed was signed would not have been precluded from obtaining his or her reserved portion or share of the estate. It was therefore not disputed that the only reason for the difference in treatment suffered by the applicant was the fact that he had been born outside marriage.
The French State had amended the rules of inheritance law following the Mazurek judgment by repealing all the discriminatory provisions relating to children ‘born of adultery’. However, according to the Government, it was not possible to undermine rights acquired by third parties – in the instant case by the other heirs – and that justified restricting the retroactive effect of the 2001 Law to those successions that were already open on the date of its publication and had not given rise to division by that date. The transitional provisions had accordingly been enacted in order to safeguard peaceful family relations by securing the rights acquired by beneficiaries where the estate had already been divided.
Subject to the statutory right to bring an action for abatement, the applicant’s half-brother and half-sister had obtained property rights on the basis of the inter vivos division of 1970 by virtue of which their mother’s estate had passed to them on her death in 1994. On that basis the present case was distinguishable from that of Mazurek, in which the estate had not yet passed to the beneficiaries. However, ‘protecting the ‘legitimate expectation’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and children born within marriage’. In that connection the applicant’s half-brother and half-sister knew – or should have known – that their rights were liable to be challenged. At the time of their mother’s death in 1994 there had been a statutory five-year time-period for bringing an action for abatement of an inter vivos division. Their half-brother had had until 1999 to claim his share in the estate and such an action was capable of calling into question not the division as such, but the extent of the rights of each of the descendants. Moreover, the action for abatement that the applicant did finally bring in 1998 was pending before the national courts at the time of delivery of the judgment in Mazurek, which declared that inequality of inheritance rights on grounds of birth was incompatible with the Convention, and at the time of publication of the 2001 Law, which executed that judgment by incorporating the principles established therein into French law. Lastly, the applicant was not a descendant whose existence was unknown to them, as he had been recognised as their mother’s ‘illegitimate’ son in a judgment delivered in 1983. That was sufficient to arouse justified doubts as to whether the estate had actually passed. On that point, in the particular circumstances of the present case, in which European case-law and the national legislative reforms showed a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage, the action brought by the applicant before the domestic courts in 1998 and dismissed in 2007 was a weighty factor when examining the proportionality of the difference in treatment. The fact that that action was still pending in 2001 could not but relativise the expectation of Mrs M.’s other heirs that they would succeed in establishing undisputed rights to her estate. Consequently, the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister was not sufficiently weighty to override the claim by the applicant to a share in his mother’s estate. Moreover, it appeared that, even in the eyes of the national authorities, the expectations of heirs who were the beneficiaries of an inter vivos division were not to be protected in all circumstances. Indeed, if the same action for an abatement of the inter vivos division had been brought at the same time by another legitimate child, born at a later date or wilfully excluded from the division, it would not have been declared inadmissible.
Accordingly, there had been no reasonable relationship of proportionality between the means employed and the legitimate aim pursued. There had therefore been no objective and reasonable justification for the difference in treatment regarding the applicant.
That conclusion did not call into question the right of States to enact transitional provisions where they adopted a legislative reform with a view to complying with their obligations under Article 46 ss 1 of the Convention. However, whilst the essentially declaratory nature of the Court’s judgments left it up to the State to choose the means by which to erase the consequences of the violation, it should at the same time be pointed out that the adoption of general measures required the State concerned to prevent, with diligence, further violations similar to those found in the Court’s judgments. That imposed an obligation on the domestic courts to ensure, in conformity with their constitutional order and having regard to the principle of legal certainty, the full effect of the Convention standards, as interpreted by the Court. That had not been done in the present case, however.
Conclusion: violation (unanimously).
Article 41: reserved.
(See Mazurek v. France, no. 34406/97, 1 February 2000, Information note no. 15)
16574/08 – Legal Summary, [2013] ECHR 427
Bailii
European Convention on Human Rights 14
Human Rights
Cited by:
Legal Summary – Fabris v France ECHR 28-Jun-2013
ECJ (Grand Chamber) States Parties are obliged to abide by the standards set in the Court’s case-law, even when they have not been involved in the particular disputes in respect of which the case-law was . .
Cited – Hand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509228

Vince v Wyatt: CA 8 May 2013

The parties had divorced some twenty years previously, but apparently without ancillary relief orders, the parties at the time being relatively poor. H was now wealthy and W applied for lump sum provision. H replied that there was no no evidence either way to say whether ancillary relief claims had been dealt with.
Held: H’s appeal succeedd, and the claim was dismissed. ‘Rule 4.4 was intended to ensure that the power to strike out in financial remedy proceedings mirrored the court’s power to strike out in civil proceedings. As in civil proceedings the rule is complementary to the court’s inherent powers of case management.
I conclude that the judge fell into error in his construction of the Rule and approached his essential task too narrowly, partly as a consequence of the way in which the husband’s application was presented. It was not apt simply to ask was the delay inordinate and, if yes was prejudice to the husband greater than the prejudice to the wife. He had to have regard to all relevant considerations within the history and exercise his case management powers not just to protect against the greater prejudice but also to husband the resources of the court.’
Thorpe, Jackson, Tomlinson LJJ
[2013] EWCA Civ 495, [2013] 3 FCR 1, [2013] WLR(D) 166, [2014] 1 FLR 246, [2013] Fam Law 1126, [2013] 1 WLR 3525
Bailii, WLRD
Family Procedure Rules 2010 4.4
England and Wales
Citing:
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 – A v A (Maintenance Pending Suit: Payment of Legal Fees) FD 2001
The court made an order to provide that the monies paid by way of maintenance pending suit in respect of any matter can be brought into account by the judge making the order in the ancillary relief proceedings. . .

Cited by:
Appeal from – Wyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.503467

Thomas Moulden Sherwood v Robert Ray: PC 28 Dec 1837

Whether marriages within degrees of affinity were automatically anulled on later prohibition.
[1837] EngR 1169, (1837) 1 Moo PC 353, (1837) 12 ER 848
Commonlii
Commonwealth

Updated: 27 October 2021; Ref: scu.314286

The Gurdians Of East Retfort Union v The Guardians Of The Strand Union: 8 Nov 1862

[1862] EngR 1004, (1862) 3 B and S 122, (1862) 122 ER 47
Commonlii
England and Wales

Updated: 27 October 2021; Ref: scu.287170

Hall v Hall: CA 1984

After divorce proceedings had commenced, the wife visited the husband, then living with someone else, and stabbed him. She now appealed an order for maintenance reduced because of her conduct.
Held: The conduct was clearly gross and obvious, and was separate from the general conduct within the marriage. The appeal failed.
[1984] FLR 631
Matrimonial Causes Act 1973 25
England and Wales
Cited by:
Cited – Kyte v Kyte CA 22-Jul-1987
The parties disputed an ancillary relief claim on their divorce. The husband had been suicidally depressed. The wife had committed adultery over a long time and also assisted her husband’s failed suicide. The husband now sought to rely upon her . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.235271

Hall v Hall: CA 14 Jul 1999

[1999] EWCA Civ 1829
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.146744

Kliers v Kliers: FD 7 Apr 2020

Husband’s claim for a financial remedy, heard together with a wife’s claim for an order for sale of the former family home to conclude TOLATA proceedings brought by her in the Chancery Division of the High Court.
[2020] EWHC 1026 (Fam)
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.655231

G v T: FD 2 Apr 2020

Final hearing of an application for financial remedies, following divorce proceedings.
[2020] EWHC 1613 (Fam)
Bailii
England and Wales

Updated: 26 October 2021; Ref: scu.655229

A and B (Parental Alienation No.2): FD 24 Feb 2021

The Hon Mr Justice Keehan
[2021] EWHC 2601 (Fam)
Bailii
England and Wales
Cited by:
See Also – A and B (Parental Alienation No 3) FD 5-May-2021
. .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.668300

Surrey County Council v Al -Hilli and Others,: FD 6 Dec 2012

[2012] EWHC 4394 (Fam)
Bailii
England and Wales

Updated: 22 October 2021; Ref: scu.561559

X v Y: FD 22 Apr 2020

Application brought by the applicant Mr X against the respondent Miss Y to rectify, as he sees it, a decree of divorce granted in relation to his marriage to Miss Y as long ago as 1997 by the Principal Registry of the Family Division.
McFarlane Sir Andrew
[2020] EWHC 1116 (Fam)
Bailii
England and Wales

Updated: 22 October 2021; Ref: scu.655233

Case XCI 11 H 6, 32 7 Co 1, Calvin’s Case 11 E 3 Fitz Br 473 24 E 3, 65 Roigne: 1220

Katherine Queen of England, after the death of K. H, 5 married Owen Tudor knight, descended from the royal stem of the pririces of Wales, by whom she had two sons and a claughter ; during their marriage she sued without her husband by the name of Queen of Eriglarid (She was the daughter of (Charles, King of France.)
Resolved by all the judges, that though a Queen marries a private man, she remains Queen, and a person exempt to sue, or be sued as a feme sole ; and that she is a person capable to purchuse land without her husband, with a power to dispose of it.
A private statute was made the 6 H. 6 that it shoukl not be lawful for a Queen Dowager to marry any persori without the King’s licence.
[1220] EngR 82, (1220-1623) Jenk 69, (1220) 145 ER 70 (A)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.460994

Westergaard v Westergaard: 1914

The parties were a divorced couple. A decree of the Danish court had given the husband power over his son. At the relevant time the son was living in Scotland with his father.
Held: It was simply not open to a Scottish court to help the wife by pronouncing a decree giving her access to her son in Scotland. The Court of Session cannot interfere with judgments of competent foreign courts. It would be contrary to all doctrines and considerations of comity to pronounce a decree with no other purpose than to undermine the judgments of competent courts, which are the product of a fair hearing.
Lord Justice Clerk Macdonald said: ‘The position of the matter is either that the judgment in Denmark is not final, in which case the Danish tribunal would be the proper place in which to apply for an order altering it, or that the judgment is final, in which case no foreign court can have any right to interfere.’
Lord Justice Clerk Macdonald
1914 SC 977
Scotland
Cited by:
Cited – Clarke v Fennoscandia Ltd and others (Scotland) HL 12-Dec-2007
After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.263793

Maclennan v Maclennan: SCS 10 Jan 1958

[1958] ScotCS CSOH – 5, 1958 SLT 12, 1958 SC 105
Bailii
Scotland
Citing:
Cited – Baxter v Baxter PC 1947
The House considered whether a wife who insisted that her husband always used a condom was thereby guilty of a wilful refusal to consummate the marriage within the meaning of section 7(1)(a).
Held: She was not, for a marriage may be . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.279450

London Borough of Ealing v KS and others: FD 3 Apr 2008

The local authority sought a declaration as to the capacity of a young woman to make decisions as to where she should live and whether she should have sexual relations.
[2008] EWHC 636 (Fam)
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.266402

Behzadi v Behzadi: CA 6 Mar 2008

W’s renewed application for permission to appeal against orders for ancillary relief made in favour of her husband
[2008] EWCA Civ 399
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.278238

Potter v Potter: FD 1982

The court considered the admissibility of without prejudice correspondence on costs decisions.
[1982] 3 All ER 321
England and Wales
Citing:
Applied – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .

Cited by:
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.254329

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 of circumstances of each case. The court required a full discretion, and that should be retained. When looking at Calderbank offers, the court could make fuller use of the provisions of the 1999 Rules, GW -v- RW needs rethinking, and the rules should be amended.
Dame Butler Sloss, Thorpe and Mantell LJJ
[2003] EWCA Civ 1084, Times 26-Aug-2003
Bailii
Family Proceedings (Amendment No 2) Rules 1999 (1999 No 3491) 2.69B, Civil Procedure Rules 44.3
England and Wales
Citing:
Doubted – 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 – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Singer (formerly Sharegin) v Sharegin 1984
In family proceedings, the starting point for the award of costs is that they prima facie follow the event but that presumption may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court. . .

Cited by:
Cited – Vaughan v Vaughan CA 2-Nov-2007
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.184906

McDonnell v McDonnell: CA 1977

In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the fact that the appellant husband’s solicitors took advantage of a recent decision of this court in Calderbank v. Calderbank. On December 16, 1975, shortly after serving the notice of appeal, they wrote a letter to the wife’s solicitors offering to withdraw the appeal altogether if the wife would agree to a modification of Mrs. Justice Lane’s order in respect of the house. In accordance with the procedure suggested in Calderbank, they headed the letter ‘Without Prejudice’ but reserved the right to bring it to the attention of the court after judgment on the question of costs.’
and ‘Clearly this is a very important consideration in exercising the court’s discretion with regard to costs.It would be wrong, in my judgment, to equate an offer of compromise in proceedings such as these [ancillary proceedings following a divorce] precisely to a payment into court. I see no advantage in the court surrendering its discretion in these matters as it has to all intents and purposes done where a payment into court has been made. A Calderbank offer should influence but not govern the exercise of the discretion. The question to my mind is whether, on the basis of the facts known to the wife and her advisers and without the advantage of hindsight, she ought reasonably to have accepted the proposals in the letter of December 16, bearing always in mind the difficulty of making accurate forecasts in cases such as this. On the other hand, parties who are exposed to the full impact of costs need some protection against those who can continue to litigate with impunity under a civil aid certificate.’
Ormrod LJ
[1977] 1 WLR 34
England and Wales
Citing:
Approved – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .

Cited by:
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
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 – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.186057

Paulin v Paulin: CA 26 Jun 2008

The husband applied for permission to appeal against an order for ancillary relief made in favour of his wife.
Wilson LJ
[2008] EWCA Civ 900
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.276655

Santos v Santos: CA 16 Feb 1972

The court considered whether one party who lived in Spain and the other who lived mainly, but not exclusively, in England, were, despite several periods of close cohabitation, living apart.
Held: Mere physical separation without more did not constitute living apart. This ‘something more’ they recognised as the consortium vitae (in contrast to divortium a mensa et thoro) which comprised different elements, the presence or absence of which would go to show more or less conclusively whether the matrimonial relationship does or does not exist .
The court discussed the meaning of the phrase ‘living together’ when used in the Act: ‘. . use is again made of words with a well settled matrimonial meaning — ‘living together’, a phrase which is simply the antithesis of living apart, and ‘household’, a word which essentially refers to people held together by a particular kind of tie, even if temporarily separated . .’ and ‘. . ‘living apart’ . . is a state of affairs to establish which it is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife were physically separated. For the purpose of that vast generality, it is sufficient to say that the relevant state of affairs does not exist while both parties recognise the marriage as subsisting. That involves considering attitudes of mind; and naturally the difficulty of judicially determining that attitude in a particular case may on occasions be great.’
Petitioning wife’s appeal against the dismissal of her undefended petition for dissolution of marriage, brought under section 1 and section 2 (1) (d) of the 1969 Act, alleging irretrievable breakdown of the marriage as shown by the fact that the parties had lived apart for a continuous period of two years immediately preceding the presentation of the petition and the husband consented to the grant of a decree. The judge had not allowed the petition on the basis that the parties had lived under the same roof.
Davies, Sachs, Ormrod LJJ
[1972] Fam 247, [1972] EWCA Civ 9, [1972] 2 All ER 246, [1972] 2 All ER 246, [1972] 2 WLR 889
Bailii
Divorce Reform Act 1969 1 2(1)(d)
England and Wales
Cited by:
Cited – Gully v Dix; In re Dix deceased CA 21-Jan-2004
The claimant sought provision from the estate under the Act. She had cohabited with the deceased for many years, but had moved out several months before the death because of her concern for his drunkenness which lead to threats of self harm.
Cited – Witkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
Cited – Dooris v Dooris CANI 18-Jan-2002
Appeal against dismissal of undefended divorce petition, based upon two years’ separation and consent. The parties still occupied the same property, but said that they lived separate lives.
Held: The parties to a marriage shall be treated as . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.196716

Bravery v Bravery: 1954

A young husband with the consent of his wife, underwent a sterilisation operation, not so as to avoid the risk of transmitting a hereditary disease, or something similar, but to enable him to ‘have the pleasure of sexual intercourse without shouldering the responsibilities attaching to it’.
Held: Denning (dissenting): Such an operation was plainly ‘injurious to the public interest’.
Lord Denning
[1954] 3 All ER 59
Cited by:
Cited – Regina v Dica CACD 5-May-2004
Reckless HIV transmission – Grievous Bodily Harm
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.196592

Walker v Galbraith: SCS 21 Dec 1895

A subject was assigned to two spouses ‘in conjunct fee and to the survivor of them in fee, and at the death of the survivor to the heirs of the spouses equally between them.’
They subsequently executed a mutual general disposition by which they disponed to and in favour of the survivor in liferent for his or her liferent use only, and at the death of the survivor to two sons of the wife by a previous marriage, equally between them, their whole estate, heritable and moveable.
The subject acquired by them under the assignation was the only property belonging to the spouses at the time when they executed this disposition.
Held (1) that the assignation conferred upon the husband and wife a joint fee with the benefit of survivorship; (2) that the general mutual disposition evacuated the destination of the subject to their heirs contained in the assignation.
Lord Moncreiff, Ordinary
[1895] SLR 33 – 246
Bailii
Scotland

Updated: 15 October 2021; Ref: scu.612977

Staden v Jones: CA 13 Jun 2008

Whether the appellant, S, has any right to enforce an arrangement, arrived at solely between her parents following their divorce, that her late father, J, would ensure that her mother’s half-interest in the former matrimonial home, which was to be transferred to J, would be S’s in due course.
Lady Justice Arden
[2008] EWCA Civ 936, [2008] 2 FLR 1931, [2008] Fam Law 1000
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.278244

Elliott v Elliott (Leave): CA 20 Dec 2000

Application for leave to enter fresh evidence on appeal against ancillary relief order.
[2000] EWCA Civ 407 – 2
Bailii
England and Wales
Cited by:
See Also – Elliott v Elliott CA 20-Dec-2000
Ancillary relief . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.276316

El Farargy v El Farargy and others: CA 29 Jul 2008

Appeal against ancillary relief order – bitter dispute – parties spending very substantial sums – disproportionate.
[2008] EWCA Civ 884
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.272236

Elliott v Elliott: CA 20 Dec 2000

Ancillary relief
[2000] EWCA Civ 407, [2001] 1 FCR 477
Bailii
England and Wales
Citing:
See Also – Elliott v Elliott (Leave) CA 20-Dec-2000
Application for leave to enter fresh evidence on appeal against ancillary relief order. . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.221695

Mubarak v Mubarik and others: FD 12 Jan 2007

Holman J
[2007] EWHC 220 (Fam)
Bailii
England and Wales
Citing:
See Also – Mubarak v Mubarak FD 30-Nov-2000
In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful . .
See Also – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
See Also – Mubarak v Mubarik 2003
The court was asked as to whether the expression ‘in the possession of’ in RSC Ord.48 extended to documents not physically held by the judgment debtor but to sight of which he has a clear and enforceable right.
Held: The expression did so . .
See Also – Mubarak v Mubarik FD 9-May-2006
. .

Cited by:
See Also – Mubarak v Mubarak and others CA 17-Jul-2007
Application for leave to appeal against ancillary relief order – protracted proceedings. . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.250614

Charman v Charman (No 2): FD 27 Jul 2006

Ancillary relief claim – very substantial assets. The court provided for a possible substantial debt by a reverse contingent lump sum.
Coleridge J
[2006] EWHC 1879 (Fam)
Bailii
England and Wales
Citing:
See Also – 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 by:
Appeal from – Charman v Charman CA 11-Dec-2006
Ancillary relief – substantial assets – application by the respondent wife in relation to an appeal by the appellant husband from a judgment and order in ancillary relief proceedings. The judge ordered the husband to pay pounds 40 million to the . .
Appeal from – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.244129

Head v Orrow: CA 16 Dec 2004

A court asked to sentence for contempt of court is not sentencing for the criminal equivalent of what the contemnor has done, and ‘Great care must be taken, if there are concurrent criminal or civil proceedings, to ensure that sentences in two or more courts do not punish twice for the same thing.’
May LJ drew attention to the increased powers of punishment contained in the 1997 Act. The 1996 Act limits the maximum penalty to two years’ imprisonment under the Contempt of Court Act 1981, whereas under the Protection from Harassment Act 1997 there are different circumstances where a maximum punishment of five years’ imprisonment is available to the court. The jurisdiction of the court under the 1997 Act is both by way of ordinary criminal proceedings and by way of civil proceedings. In general the view may be taken that if a case warrants a sentence near the top of the range the appropriate course is probably to bring proceedings under the 1997 Act so that the greater powers of punishment are available to the court.
Mr Justice Wall The Hon. Mr Justice Dyson The Right Honourable Lord Justice May
[2004] EWCA Civ 1691, [2005] 2 FLR 329
Bailii
Family Law Act 1996 42, Protection from Harassment Act 1997
England and Wales
Cited by:
Cited – Slade v Slade CA 17-Jul-2009
Contempt sentence to reflect existing punishment
The wife appealed against a sentence of imprisonment imposed for a second contempt of court. She said that the behaviour complained of had already been dealt with in criminal proceedings.
Held: The sentence was reduced. The second court should . .
Cited – Murray v Robinson CA 12-Jul-2005
M appealed from findings that he had been in contempt of court for three breaches of non-molestation injunctions.
Held: In this area, as in other areas, imprisonment needs to be reserved for those cases where imprisonment is necessary. It must . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.220715

Lomas v Parle: CA 18 Dec 2003

The respondent had been sentenced to two months imprisonment for breaches of orders under the Act. The wife appealed, seeking to increase the sentence. The maximum sentence was two years.
Held: The court had to consider such cases in the light of any parallel criminal or civil proceedings under the 1997 Act. ‘This was a case with an appalling history of intimidation and abuse. At every turn the husband had flouted the orders of the court and seized any leniency as little more than an opportunity to resume his campaign against the wife. The two breaches in respect of which he was sentenced were both individually extremely sinister in their presentation and implication. We are of the opinion that a sentence of less than ten months’ imprisonment would have been unduly lenient. We only fixed a lesser sentence to reflect the element of double jeopardy. Accordingly the sentence which we passed on 30 October was a sentence of eight months’ imprisonment concurrent on each of the admitted breaches.’ and ‘the first court to sentence must not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence.’
and: ‘so far as possible sentences passed under section 42 should not be manifestly discrepant with sentences for harassment charged under the 1997 Act.’
The President Of The Family Division Lord Justice Thorpe and Lord Justice Mance
[2003] EWCA Civ 1804, Times 13-Jan-2004, [2004] 1 All ER 1173, [2004] 1 FLR 812, [2004] 1 WLR 1642
Bailii
Family Law Act 1996 42, Contempt of Court Act 1981 14, Protection from Harrassment Act 1997
England and Wales
Citing:
Cited – Linnett v Coles QBD 1986
The defendant had repeatedly failed to obey orders for the production of documents made in the course of civil litigation proceedings. He was ordered to be committed to prison ‘until further order’ He appealed.
Held: With regard to section 14, . .
Cited – Wilson v Webster CA 26-Feb-1998
There is no reason in law to disallow someone applying for a contemnor to be committed, from appealing against the sentence imposed, but it would rare to allow interference. Brown P: ‘It is believed that it may be that criminal proceedings will . .
Cited – Neil v Ryan CA 23-Jul-1998
The court considered the power to increase a sentence of committal for contempt of court: ‘Before considering any increase in sentence or changing the impact of any sentence adversely to the defendant we have to remind ourselves that this is a power . .
Cited – Hale v Tanner CA 22-Aug-2000
When attaching a power of arrest on a non-molestation order the court should consider attaching it only to that element which restricts violence or proximity rather than to any part relating to harassment. When considering sentence for a breach, the . .
Cited – Regina v Liddle and Hayes CACD 24-May-1999
When sentencing for harassment, the court must look to previous failures to obey court orders, the defendant’s mental health, and his readiness to undergo treatment, as well as the seriousness of the conduct constituting the harassment. ‘For a . .

Cited by:
Cited – Council for the Regulation of Healthcare Professionals v General Medical Council and Dr Solanke Admn 30-Apr-2004
The council appealed against what it said was a lenient sentence imposed on a doctor for malpractice.
Held: It was relevant to take account of the way criminal courts dealt with appeals against lenient sentences. The test in relation to an . .
Cited – Dr Giuseppe Ruscill, Council for the Regulation of Health Care Professionals v The General Medical Council and Another, The Council for the Regulation of Health Care Profesionals, The Nursing and Midwifery Council, Truscott CA 20-Oct-2004
The Council sought to refer to the High Court decisions to acquit the doctors of professional misconduct. The doctors argued that the power only existed for lenient sentences.
Held: The power to refer for undue leniency included the situation . .
Applied with comments – Slade v Slade CA 17-Jul-2009
Contempt sentence to reflect existing punishment
The wife appealed against a sentence of imprisonment imposed for a second contempt of court. She said that the behaviour complained of had already been dealt with in criminal proceedings.
Held: The sentence was reduced. The second court should . .
Cited – Murray v Robinson CA 12-Jul-2005
M appealed from findings that he had been in contempt of court for three breaches of non-molestation injunctions.
Held: In this area, as in other areas, imprisonment needs to be reserved for those cases where imprisonment is necessary. It must . .
Cited – Regina v Liddle and Hayes CACD 24-May-1999
When sentencing for harassment, the court must look to previous failures to obey court orders, the defendant’s mental health, and his readiness to undergo treatment, as well as the seriousness of the conduct constituting the harassment. ‘For a . .
Cited – Murray v Robinson CA 12-Jul-2005
M appealed from findings that he had been in contempt of court for three breaches of non-molestation injunctions.
Held: In this area, as in other areas, imprisonment needs to be reserved for those cases where imprisonment is necessary. It must . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.189053

O’Neill v O’Neill: CA 1975

The court considered the level of unreasonable behaviour necessary to found a decree of divorce.
Cairns LJ said: ‘The right test is, in my opinion, accurately stated in Rayden on Divorce . . ‘The words ‘reasonably be expected’ prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable.”
Roskill LJ, Cairns LJ
[1975] 3 All ER 289
Matrimionial Causes Act 1973 1(2)(b)
England and Wales
Citing:
Adopted – 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 – 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 by:
Cited – Luong v Loung (Phoung) CA 15-Apr-1997
The husband appealed refusal of a decree of divorce. The judge found that the wife’s behaviour was insufficient to found a decree.
Held: The judge had applied the correct test. At issue here was really the wish of the huband to introduce . .
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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.231159

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 interpreted by reference not to his behaviour, but rather to the effect upon her.
Held: The appeal was dismissed. The point upon which the appeal had been permitted was novel, and now withdrawn by the petitioner.
Lord Wilson said: ”Unreasonable behaviour’ has always been the family lawyer’s shorthand description for the content of the subsection. But it is wrong. The subsection requires not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable. ‘
Section 1 of the 1973 Act does not require the behaviour under the subsection to have caused the breakdown of the marriage.
Lady Hale, President, Lord Mance, Lord Wilson, Lord Hodge, Lady Black
[2018] UKSC 41, [2018] 3 WLR 634, [2018] 4 All ER 721, [2018] 2 FCR 796, [2018] WLR(D) 485, [2018] 2 FLR 1067, [2018] AC 899, UKSC 2017/0077, SC 2018 May 17 pm Video
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 May 17 am Video
Matrimonial Causes Act 1973 1(2)(b)
England and Wales
Citing:
At CA – 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: . .
Cited – Pheasant v Pheasant FD 1972
H petitioned for divorce pursuant to section 2(1)(b) of the Divorce Reform Act 1969, which came into force on 1 January 1971. The husband’s case was that the wife had been unable to give him the demonstrative affection which he needed.
Held: . .
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 – Thurlow v Thurlow FD 1976
A husband’s petition under the subsection was based on the wife’s failure to contribute to the running of the home and on her increasingly erratic behaviour, both of which were the result of a severe neurological condition. Rees J noted that, before . .
Cited – 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 – 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.
Unsustainable – 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 – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was 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 . .
Unsustainable – Priday v Priday FD 1970
Cumming-Bruce J dismissed a husband’s petition for divorce on the ground of the wife’s cruelty under section 1(1)(a)(iii) of the Matrimonial Causes Act 1965. But, in recounting the history of the marriage, the judge also commented at p 557 on the . .
Cited – Miller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
Cited – Jamieson v Jamieson HL 1952
The house discussed the test for relevancy of a pursuer’s averments.
Held: A case should only be dismissed on grounds of relevancy and specification if it would necessarily fail at proof.
The House reversed the decision of the Court of . .
Cited – Miller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
Cited – Katz v Katz 1972
Misuse of the phrase ‘unreasonable behaviour’ . .
Cited – Bannister v Bannister CA 1980
The Court allowed a wife’s appeal against the dismissal of her petition for divorce, Ormrod LJ observed: ‘The learned judge, I am afraid, fell into the linguistic trap which is waiting for all of us when we speak of ‘unreasonable behaviour’ in . .
Cited – Ukegheson v Haringey London Borough Council EAT 21-May-2015
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
RACE DISCRIMINATION
VICTIMISATION DISCRIMINATION
HARASSMENT
UNFAIR DISMISSAL – Constructive dismissal
The Claimant resigned. In a . .

Cited by:
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 . .
Cited – Yorston and Others, Re (Matrimonial Causes Act 1973: Improper Petitions) FC 10-Sep-2021
Petitions with Identical Particulars Dismissed
28 divorce petitions had particulars including the exact same form of words for the allegations. The court could not accept that the behaviour had been identical and concluded that the petitions were improper.
Held: The petitions were . .

Lists of cited by and citing cases may be incomplete.
Updated: 13 October 2021; Ref: scu.620138

Local Authority X v MM and Another (No. 2): FD 16 Nov 2007

Munby J
[2007] EWHC 2689 (Fam)
Bailii
England and Wales
Citing:
See Also – Local Authority X v MM and Another; re MM (An Adult) FD 21-Aug-2007
The test for capacity to consent to sexual relations must be the same in its essentials as the test in the criminal law; more importantly ‘a woman either has capacity, for example, to consent to ‘normal’ penetrative vaginal intercourse, or she does . .

Lists of cited by and citing cases may be incomplete.
Updated: 13 October 2021; Ref: scu.263395

EP or G v GG: SCS 18 Mar 2016

[2016] ScotCS CSOH – 32, 2016 GWD 10-197, 2016 Fam LR 30
Bailii
Scotland

Updated: 12 October 2021; Ref: scu.562573

Davison v Davison and Others: CA 11 Jun 2015

The parties disputed interpretation of an order made in financial remedy proceedings.
Patten, Briggs, King LJJ
[2015] EWCA Civ 587
Bailii
England and Wales

Updated: 12 October 2021; Ref: scu.548095

S v S: FD 22 May 2007

H appealed against an ancillary relief order.
Baron J
[2007] EWHC 1975 (Fam)
Bailii
Matrimonial Causes Act 1973 24(1)(c)
England and Wales

Updated: 10 October 2021; Ref: scu.258829

Ms A (Validity of Marriage): FDNI 18 Mar 2021

Whether the petitioner is entitled to a declaration that the form of marriage which she entered into at a hospital, with Mr M, on 26 May 2012 is one which is sufficient to be recognised in law and is a valid marriage.
[2021] NIFam 8
Bailii
Northern Ireland

Updated: 10 October 2021; Ref: scu.667767

Cole v Willard: 24 Jun 1858

The testator, on his marriage, covenanted that his representatives should, within three months after his decease, pay 2000 pounds to trustees, to be held for his wife for life.
By his will, after collecting all his debts to be paid, he gave his widow an annuity of 300 pounds a year, payable quarterly, and other benefits. Held, that the provision for the wife, under the settlement, was not satisfied by the provision made for her by the will.
[1858] EngR 881, (1858) 25 Beav 568, (1858) 53 ER 754
Commonlii
England and Wales

Updated: 08 October 2021; Ref: scu.289352

Webber v Webber: FD 16 Nov 2006

[2006] EWHC 2893 (Fam), [2007] Fam Law 209, [2007] 1 WLR 1052, [2007] 2 FLR 116
Bailii
England and Wales

Updated: 08 October 2021; Ref: scu.246080

Stelfox v Stelfox: FDNI 21 Jul 2021

[2021] NIFam 26
Bailii
Northern Ireland

Updated: 08 October 2021; Ref: scu.667780

P v P (Divorce: Jurisdiction): FD 16 Aug 2021

The Honourable Mr Justice Cobb
[2021] EWHC 2306 (Fam)
Bailii
England and Wales

Updated: 07 October 2021; Ref: scu.667757

Fordyce Or Burton Or Clark v Clark: ScSf 16 Mar 2007

Sheriff Principal Sir Stephen S.T. Young
[2007] ScotSC 12
Bailii
Scotland

Updated: 01 October 2021; Ref: scu.253081

Milton v Milton: CA 17 Jul 2008

The husband sought leave to appeal against the terms of an ancillary relief order.
Thorpe LJ
[2008] EWCA Civ 926, [2009] 1 FLR 661, [2009] 3 FCR 61
Bailii
England and Wales

Updated: 30 September 2021; Ref: scu.276658

McCartney v McCartney: FD 17 Mar 2008

Bennett J
[2008] EWHC 401 (Fam), [2008] 1 FLR 1508
Bailii
Matrimonial Causes Act 1973
England and Wales

Updated: 30 September 2021; Ref: scu.266244

H v H: FD 4 Apr 2007

Ancillary relief application.
Charles J
[2007] EWHC 459 (Fam), [2007] 2 FLR 548, [2007] Fam Law 578, [2008] 2 FCR 714
Bailii
Matrimonial Causes Act 1973
England and Wales

Updated: 30 September 2021; Ref: scu.251183

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 should be awarded the same proportion of the assets as a party who has made the domestic contributions for more than 20 years.
Mostyn QC J said: ‘[Foley] . . is now nearly 22 years old. The case of White v White has emphasised that the law in this area is not moribund but must move to reflect changing social values. I cannot imagine anyone nowadays seriously stigmatising pre-marital cohabitation as ‘living in sin’ or lacking the quality of emotional commitment assumed in marriage. Thus, in my judgment, where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently. On the other hand, if it is found that the pre-marital cohabitation was on the basis of a trial period to see if there was any basis for later marriage then I would be of the view that it would not be right to include it as part of the ‘duration of the marriage’. This was the finding made in the recent case of F v F (unreported) 14 January 2003 by Hartmann J in the High Court of Hong Kong, which decision contains some valuable insights on this and other aspects of the law of ancillary relief. There is no basis for such a finding in this case, and I therefore include the 18 months of pre-marital cohabitation here as part of the ‘duration of the marriage’
and ‘I do not shrink from saying that this is a difficult issue. The logic deployed by Mr. Pointer has obvious force. But on the other hand it seems to me that to adopt it requires me to put a blue pencil straight through the statutory criterion of the duration of the marriage. The failure of the judge in L v L (Financial Provision: Contributions) [2002] 1 FLR 642 (Lambert) to give sufficient weight to this factor was specifically criticised by the Court of Appeal. It seems to me that the assumption of equal value of contribution is very obvious where the marriage is over 20 years. For shorter periods the assumption seems to me to be more problematic. I am not attracted to a formulaic solution, as suggested by John Eekelaar, but I do in essence accept his proposition that the entitlement to an equal division must reflect not only the parties’ respective contributions but also an accrual over time’.
Mostyn QC J
[2003] EWHC 611 (Fam), [2003] Fam Law 386, [2003] 2 FLR 108, [2003] 2 FCR 289
Bailii
Family Proceedings (Amendment No 2) Rules 1999 (1999 No 3491) 2.69B, Matrimonial Causes Act 1973 23
England and Wales
Cited by:
Doubted – 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 . .
Preferred – 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 – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Rossi v Rossi FD 26-Jun-2006
W sought to challenge transactions entered into by H anticipating ancillary relief proceedings on their divorce. Nicholas Mostyn QC J said: ‘While of course no rigid rule can be expressed for the infinite variety of facts that arise in ancillary . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 September 2021; Ref: scu.247605

B v B (Ancillary Relief Consent Order: Appeal Out of Time): FD 26 Oct 2007

Sir Marl Potter P
[2007] EWHC 2472 (Fam), [2008] 1 FLR 1279, [2008] 1 FLR 1279, [2008] Fam Law 111
Bailii
England and Wales
Cited by:
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 September 2021; Ref: scu.262187

Desporte v Bull: QBD 25 Aug 2021

Mr Justice Julian Knowles
[2021] EWHC 2370 (QB)
Bailii
England and Wales

Updated: 30 September 2021; Ref: scu.667790

Ahmed and Others v Khan: CA 23 Mar 2010

In ancillary relief proceedings, the wife sought to assert that the husband’s family held properties in trust for him, and that they should be considered to be family assets.
Wall LJ
[2010] EWCA Civ 290
Bailii
England and Wales

Updated: 29 September 2021; Ref: scu.403469

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.
Lord Justice Wilson
[2008] EWCA Civ 1070, [2008] 3 FCR 705, [2008] Fam Law 1178, [2009] 2 FLR 649
Bailii
Matrimonial Causes Act 1973 25
England and Wales
Citing:
Cited – Vaughan v Vaughan CA 2-Nov-2007
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.276771

Harrison and Others, Regina (on The Application of) v Secretary of State for Justice: Admn 31 Jul 2020

The Claimant humanists complained that the legal recognition of different forms of religious wedding ceremony under English law does not similarly extend to weddings carried out in accordance with their humanist beliefs; they contend that this gives rise to an unjustified discrimination in the exercise of their rights under the European Convention on Human Rights and thus breaches the Human Rights Act 1998 (‘the HRA’).
Eady DBE J
[2020] EWHC 2096 (Admin)
Bailii
European Convention on Human Rights
England and Wales

Updated: 29 September 2021; Ref: scu.652943

Crellin v Latta: SCS 16 Nov 1892

One of the parties to an antenuptial contract of marriage conveyed to trustees certain funds to which ‘she will succeed in and through the settlements of her father, particularly a sum of pounds 4000, or such other sum as she may be entitled to’ under the said settlement. She never expressly discharged her claim to legitim, and the claim was not satisfied, as neither she nor her representatives ever received any payment or took any benefit under her father’s settlement. Nothing had happened to prejudice the rights of other beneficiaries, and the fund out of which legitim was payable was still extant.
In an action by her trustee and executor under a will executed subsequent to her settlement- held that the provisions of the antenuptial contract did not amount to election to take her conventional provisions, and that the pursuer as her representative was entitled to the share of legitim which vested in her on her surviving her father, with interest to date.
Lord Wellwood, Ordinary
[1892] SLR 30 – 72
Bailii
Scotland

Updated: 27 September 2021; Ref: scu.613581

Chorley v Chorley: CA 12 Jan 2005

The husband claimed that he had begun court proceedings elsewhere in France and before the wife issued her petition here. She contended that she should be allowed to proceed since the husband’s proceedings had not reached a stage at which the court was seised of the matter within the regulation.
Held: When the court need to ask whether the proceedings amounted to the issue of divorce proceedings within the regulations, the proper court to decide the nature of the proceedings was the court at issue, which could then apply the regulations and accept or decline jurisdiction.
Thorpe, Tuckey, Dyson LJJ
Times 18-Jan-2005, [2005] EWCA Civ 68, [2005] 2 FLR 38, [2005] 1 WLR 1469
Bailii
Council Regulation (EC) No 1347/2000 on jurisdiction and enforcement in matrimonial matters and parental responsibility
England and Wales

Updated: 25 September 2021; Ref: scu.222859

Botwe v Brifa: FD 16 Aug 2021

Whether married – married in Accra Ghana in tribal custom marriage.
The Honourable Mr Justice Cobb
[2021] EWHC 2307 (Fam)
Bailii
Family Law Act 1986 51 55
England and Wales

Updated: 21 September 2021; Ref: scu.667752

KMM v NAM (Jurisidiction): FD 13 Aug 2021

The Hon Sir Jonathan Cohen
[2021] EWHC 2300 (Fam)
Bailii
England and Wales

Updated: 20 September 2021; Ref: scu.667756

BSA v NVT: FD 23 Apr 2021

Application made in the course of two, consolidated appeals brought by BSA. The applicant is the Respondent to the appeals, NVT. She applies for an order that the appeals be dismissed unless the father pays outstanding costs orders and other amounts previously ordered by the court. The order she seeks is known as a Hadkinson order.
Mr Justice Poole
[2021] EWHC 2202 (Fam)
Bailii
England and Wales

Updated: 18 September 2021; Ref: scu.667748

Seales v Seales: FDNI 9 Jul 2021

[2021] NIFam 32
Bailii
Northern Ireland

Updated: 13 September 2021; Ref: scu.667779

Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary): SC 27 Jun 2018

The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The appeal failed. Section 3(1) was a potential violation of the claimants’ Article 8 and 14 Rights. A clear obligation existed
‘. . the approach of the ECtHR to the question of what margin of appreciation member states should be accorded is not mirrored by the exercise which a national court is required to carry out in deciding whether an interference with a Convention right is justified . . a national court must confront the interference with a Convention right and decide whether the justification claimed for it has been made out. It cannot avoid that obligation by reference to a margin of appreciation to be allowed the government or Parliament, (at least not in the sense that the expression has been used by ECtHR)’
Lady Hale, President

Lord Kerr

Lord Wilson

Lord Reed

Lady Black
[2018] UKSC 32, 45 BHRC 169, [2018] 4 All ER 1, [2020] AC 1, [2018] 2 FCR 691, [2018] 3 WLR 415, [2018] WLR(D) 403, [2018] 2 FLR 906, UKSC 2017/0060
Bailii, SC Summary, WLRD, SC, SC Summary, SC Video Summary, SC 2018 May 15 am Video, SC2018 May 15 pm Video
Civil Partnership Act 2004, Marriage (Same Sex Couples) Act 2013, European Convention on Human Rights 8
England and Wales
Citing:
At Admn – Steinfeld and Another v The Secretary of State for Education Admn 29-Jan-2016
The claimant heterosexual couple wanted to enter into a civil partnership rather than to marry.
Held: The request for judicial review failed. On the authorities, the bar did not fall within the scope or ambit of Article 8. The appellants could . .
At CA – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Salgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – Salgueiro da Silva Mouta v Portugal ECHR 1-Dec-1998
A homosexual claimed that an award of custody of his daughter to her mother was an unjustified interference with his right to respect for family life, and also with his right to respect for his private life since he was required in respect of his . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Schalk and Kopf v Austria ECHR 24-Jun-2010
The applicants alleged discrimination in that as a same sex couple they were not allowed to marry.
Held: There was no violation.
The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex . .
Cited – Vallianatos And Others v Greece ECHR 7-Nov-2013
Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life . .
Cited – Karner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – EB v France ECHR 22-Jan-2008
The claimant, a homosexual woman, complained that her homosexuality had meant her disqualification from adopting a child.
Held: There is no right to foster, but the provision was an unlawful discrimination. The denial of adoption to a woman in . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .

Cited by:
Cited – Elan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.618853

Swift v Secretary of State for Justice: CA 18 Mar 2013

The claimant appealed against refusal of a declaration that the 1976 Act infringed her human rights. She had been cohabiting for six months, when her partner was killed in an accident at work for which a third party was liable. Because she had not been cohabiting for two years, her claim for loss of dependency was rejected.
Held: The cut off period was supported by an argument that it avoided disputes, but itdid not. The burden of proof was the same. However a wide margin of appreciation was due to Parliament in making such judgements, and: ‘was entitled to decide that there had to be some way of proving the requisite degree of permanence and constancy in the relationship beyond the mere fact of living together as husband and wife. It was entitled to take the view that there cannot be a presumption in the case of short-term cohabitants, unlike that of married couples (section 1(3)(a)) or parents and their children (section 1(3)(e)) that the relationship is or is likely to be one of permanence and constancy. ‘ The rule was a proportionate means of pursuing a legitimate aim.
Lord Dyson said: ‘the question is not whether the existing law is unfair and could be made fairer. Nor is it whether the existing law is the fairest means of pursuing the legitimate aim referred to at para 23 above. Rather, the question is whether the existing law pursues that aim in a proportionate manner. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more.’
Lord Dyson MR, Lewison, Treacy LJJ
[2013] EWCA Civ 193, [2013] HRLR 21, [2013] PIQR P14, [2013] 2 FCR 1, [2013] 3 WLR 1151, [2013] WLR(D) 118, [2014] 1 QB 373
Bailii, WLRD
Fatal Accidents Act 1976 1(3)(b), European Convention on Human Rights 8
England and Wales
Cited by:
Cited – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .
Cited – Brewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.471876

Bathurst v Murray: 23 Dec 1802

[1802] EngR 429, (1801, 1802) 8 Ves Jun 74, (1802) 32 ER 279
Commonlii
England and Wales

Updated: 03 September 2021; Ref: scu.345246

Olk v Olk: CA 2 Jul 2001

[2001] EWCA Civ 1075
Bailii
England and Wales

Updated: 03 September 2021; Ref: scu.201274

Clibbery v Allan and Another: FD 2 Jul 2001

There is nothing inherently different in Family Division proceedings to justify an implied ban on all disclosures of matters proceeding in chambers. Here no children or other sensitive matters were involved. The simple filing of an affidavit containing material in the Family division could not thereby create any confidentiality in that material. The instant material was not covered by any other undertaking implied in the court process, and the restriction on publication was discharged.
Times 02-Jul-2001, Gazette 05-Jul-2001, [2001] 2 FLR 819
England and Wales
Cited by:
Appeal from – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – P v BW (Children Cases: Hearings in Public) FD 2003
The applicant sought a joint residence order, and for a declaration that the rules preventing such hearings being in public breached the requirement for a public hearing.
Held: Both FPR 1991 rule 4.16(7) and section 97 are compatible with the . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.79220

MS v FS: FC 21 Feb 2020

[2020] EWFC B9
Bailii
England and Wales
Cited by:
See Also – MS v FS (No2: Costs and Ancillary Issues) FC 21-Feb-2020
. .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.649480

MS v FS (No2: Costs and Ancillary Issues): FC 21 Feb 2020

[2020] EWFC B8
Bailii
England and Wales
Citing:
See Also – MS v FS FC 21-Feb-2020
. .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.649479

Melvin v Christie: SCS 14 Jun 2016

[2016] ScotCS CSIH – 43, 2016 Fam LR 116, 2016 GWD 20-356
Bailii
Scotland

Updated: 30 August 2021; Ref: scu.565869

Barder v Barder; Barder v Caluori: HL 1988

Later Event no ground to appeal from consent order

The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the wife committed suicide. The husband applied for leave to appeal.
Held: The House described the conditions for appealing an order made by consent. A consent order in an ancillary relief case could be set aside on the ground that there had been a supervening event which had led to such a change of circumstances as to undermine or invalidate the basis of the consent order: ‘new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed . . the new events should have occurred within a relatively short time of the order having been made . . the application for leave to appeal out of time should be made reasonably promptly and third parties should not be adversely affected.’ Lord Brandon reviewed the case law and said: ‘I would state the conclusions to which I think that these authorities lead in this way. First, there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it. The passage in the judgment of Shearman J. in Maconochie v. Maconochie [1916] P. 326, 328, in which he stated that such a general rule existed, cannot be supported. Secondly, it is unhelpful, in cases of the kind under discussion, to refer to abatement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. Thirdly, the answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the Act of 1934.’
Lord Brandon
[1988] AC 20, [1987] 2 All ER 440, [1987] 2 WLR 1350, [1988] Fam Law 18
England and Wales
Citing:
Cited – Dipple v Dipple 1942
The court considered the abatement of an application for financial relief in divorce proceedings on the death of one party.
Held: The wife’s claim to secured provision was not a cause of action within the terms of section 1(1). The wife only . .
Cited – Mosey v Mosey and Barker 1956
An order had been made against the husband, upon the dissolution of a marriage, securing an annual sum for the maintenance of the wife and their child that was to be agreed upon or referred to the district registrar. The order envisaged contuation . .
Cited – Sugden v Sugden CA 1957
The husband died after having had made against him an order to pay maintenance to the two children of the marriage.
Held: The order could not be enforced against his personal representatives after his death. The court explained why a claim . .
Cited – D’Este v D’Este; D(J) v D(S) FD 1973
The husband had obtained a decree absolute of divorce against his wife. The matrimonial home had been conveyed to them jointly. He remarried and applied to the court for variation of the post-nuptial settlement. He died before the application was . .

Cited by:
Approved – 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 – Ram, Regina (on the Application Of) v Parole Board Admn 12-Jan-2004
The claimant had won an action for damages against the respondent. He was however released on licence, and subsequently became unlawfully at large. The question was whether the damages continued to be payable to him. The defendant insisted that the . .
Cited – McGladdery v McGladdery CA 21-Jul-1999
A husband having been ordered to transfer his shares in a private company to his wife, found that she had breached the undertaking she had given as part of the order, and had used her majority shareholding to dispose of company assets out of the . .
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 – 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 – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
Cited – Heyer v Newby CA 19-Oct-2005
The parties had settled their ancillary relief case by consent, but shortly afterwards, shares in the husband’s company were sold creating a very substantial windfall in his favour. The former wife sought to vary the order. The husband appealed an . .
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 – Walkden v Walkden CA 25-Jun-2009
W sought to plead as a Barder event the fact that certain shares had subsequently been sold by H at a substantially higher value than had been anticipated on the making of the financial relief order on the parties’ divorce. Alternatively, she . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.180693