Category: Family

Pugh v Pugh: 1951

The court considered the age requirement for capacity to marry.

Citations:

[1951] P 482

Jurisdiction:

England and Wales

Cited by:

Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 17 November 2022; Ref: scu.244726

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 in this jurisdiction. The parties had married in England.
Held: It was to be recognised: ‘I ask what is the purpose and policy of s46(1) and the International Convention to which it gives effect? The answer it seems to me is that it provides a mechanism to afford recognition to a Sharia divorce which is more than and has developed from mere oral delivery so that there can be no issue that it has been pronounced. It is also required to be effective within its own jurisdiction. If that is right, the Saudi process as now performed using the machinery adopted by the husband has produced a divorce religiously valid as certified by a religious Court and further effecting a full change of civil status in the eye of the state and the society in which it was pronounced via the registration mechanism. I find it difficult to classify that result and the process by which it was achieved it as outside the intention and boundaries of our recognition code.’

Judges:

Horowitz QC J

Citations:

[2011] EWHC B23 (Fam)

Links:

Bailii

Statutes:

Matrimonial and Family Proceedings Act 1984 17, Family Law Act 1986 5491) 46(2), 1970 Hague Convention on the Recognition of Divorces and Legal Separation

Jurisdiction:

England and Wales

Citing:

Cited – Zaal v Zaal FD 1982
The English wife had married a Dubai husband under muslim law. H pronounced talaq in Dubai. W, wanting to divorce him for adultery, said it was ineffective since she had not had notice of it.
Held: The Talaq was effective under Dubai law, and . .
Cited – Chaudhary v Chaudhary 1985
The Pakistani husband pronounced bare Talaq in Sharia form before witnesses in Kashmir, although administered by Pakistan a territory to which the Muslim Family Ordinance 1961 did not apply. Recognition of the Talaq divorce had been refused by Wood . .
Cited – Sulaiman v Juffali FD 9-Nov-2001
A talaq pronounced in England as between parties who were Saudi nationals was not to be recognised in English law as a valid extra judicial overseas divorce, even though it otherwise complied with Sharia law. Section 44(1)(a) provides that no . .
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 – 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 – H v H (The Queen’s Proctor Intervening) (Validity of Japanese Divorce) FD 2006
The court considered the validity of a consensual form of divorce kyogi rikon in Japanese law, the most common form of divorce in Japan. The consent is by written form not judicial act but the signing must be followed by formal registration before a . .
Cited – El Fadl v El Fadl FD 2000
The court was asked as to the recognition of a Sharia compliant divorce between Lebanese Muslims. Under the relevant Lebanese 1962 legislation a Talaq was to be pronounced before 2 witnesses, a requirement of most systems of traditional Islamic . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 14 November 2022; Ref: scu.450357

Sulaiman v Juffali: FD 9 Nov 2001

A talaq pronounced in England as between parties who were Saudi nationals was not to be recognised in English law as a valid extra judicial overseas divorce, even though it otherwise complied with Sharia law. Section 44(1)(a) provides that no divorce obtained in any part of the British Islands is effective in any part of the United Kingdom unless granted by a court of civil jurisdiction. ‘Although historically this country is part of the Christian west, and although it has an established church which is Christian, I sit as a secular judge serving a multi-cultural community of many faiths in which all of us can now take pride, sworn to do justice ‘to all manner of people’. Religion – whatever the particular believer’s faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.’

Judges:

Justice Munby

Citations:

Times 28-Nov-2001, [2002] 1 FLR 479, [2002] Fam Law 97, [2001] EWHC 556 (Fam), [2002] 2 FCR 427

Links:

Bailii

Statutes:

Family Law Act 1986 Part II 44(1)(a) 45(1)

Jurisdiction:

England and Wales

Citing:

Cited – El Fadl v El Fadl FD 2000
The court was asked as to the recognition of a Sharia compliant divorce between Lebanese Muslims. Under the relevant Lebanese 1962 legislation a Talaq was to be pronounced before 2 witnesses, a requirement of most systems of traditional Islamic . .

Cited by:

Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Cited – HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group and Another QBD 17-May-2010
The claimant, a Sikh religious leader complained of defamation in a Sikh journal in England. The defendant said the claim was non-justiciable since it required the court to pronouce on a matter of religious doctrine.
Held: The plea of . .
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

Updated: 14 November 2022; Ref: scu.166877

AC v DC and Others (Financial Remedy: Effect of S37 Avoidance Order) (No 1): FD 19 Jul 2012

The effect of an order under section 37 is to annul or ‘avoid’ the transaction under attack. Moreover, the bad intention to defeat the principal ancillary relief claim is presumed for transactions done within the three year period before the avoidance claim. There is no time limit on attackable transactions. A transaction done 20 years earlier is, at any rate in theory, capable of being annulled.

Judges:

Mostyn J

Citations:

[2012] EWHC 2032 (Fam), [2013] 2 FLR 1483

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973

Cited by:

Cited – Dellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
Lists of cited by and citing cases may be incomplete.

Family, Company

Updated: 14 November 2022; Ref: scu.471767

T v T: FD 29 Nov 2012

Application for Hemain injunction to restrain proceedings in Alabama.

Judges:

Nicholas Francis QC

Citations:

[2012] EWHC 3462 (Fam)

Links:

Bailii

Citing:

Cited – Hemain v Hemain 1988
The court confirmed its the power to grant a temporary injunction restraining the party from pursuing proceedings in a foreign jurisdiction to prevent that party from obtaining unfair advantage. The injunction would typically preserve the status quo . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 14 November 2022; Ref: scu.471770

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 extend. However he did not have such a right in this case. ‘that a director could not be taken to have had possession of company documents even if he had an enforceable right to them’

Judges:

Hughes J

Citations:

[2003] 2 FLR 553

Jurisdiction:

England and Wales

Citing:

Cited – B v B (Matrimonial Proceedings: Discovery) CA 1978
The wife applied for ancillary relief, and sought disclosure from a third party.
Held: Whilst a party must disclose all documents in his possession, custody or power the court has a discretion whether to order inspection. ‘Custody’ in RSC Ord . .

Cited by:

See Also – Mubarak v Mubarik FD 9-May-2006
. .
See Also – Mubarak v Mubarik and others FD 12-Jan-2007
. .
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.

Family

Updated: 14 November 2022; Ref: scu.347192

Rose v Rose: FD 20 Mar 2003

Appeal against ancillary relief order by consent on divorce.

Judges:

Mr Justice Bennett

Citations:

[2003] EWHC 505 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Rose v Rose CA 20-Feb-2002
The parties married in 1984, and divorced in 2000. They had two children. The husband had a substantial fortune. In ancillary relief proceedings, at the financial dispute resolution hearing, the judge indicated what order was on his mind, the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 14 November 2022; Ref: scu.235733

Sorrell v Sorrell: FD 29 Jul 2005

The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an unequal division would reflect the husband’s special and exceptional contributions. As to the balance between the cases of Cowan and Lambert: ‘courts would now look at the argument of ‘special’ contribution with great care, if not a sceptical eye. In my judgment Lambert sent a strong message to litigants and their advisers that they could not expect routinely to run a case of ‘special’ contribution successfully. I accept that the Court of Appeal did circumscribe or tighten the criteria to ‘the most exceptional and limited circumstance’ Here, ‘the evidence establishes that the true explanation for this extraordinary success story is that the husband does possess the ‘spark’ or ‘force’ or ‘seed’ of genius, call it what one will. It was by his talents as I have set out above that he generated the fortune for the family. One only has to glance at the schedule to see that the overwhelming preponderance of the fortune is derived from the shares in WPP. His genius was the generator of that fortune. ‘

Judges:

Bennett J

Citations:

[2005] EWHC 1717 (Fam), [2006] 1 FCR 75, [2006] 1 FLR 497, [2006] Fam Law 12

Links:

Bailii

Statutes:

Matrimonial Cause Act 1973

Jurisdiction:

England and Wales

Citing:

Cited – Lambert v Lambert CA 14-Nov-2002
The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
Held: The Act gave . .
Cited – J v J FD 23-Jan-2004
Ancillary relief. . .
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 – 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 – G v G (Financial Provision Equal Division) FD 2-Jul-2002
The family assets were in the region of andpound;8.5M. The wife sought a half share. The husband proposed that she should have 40%. The husband had built the family fortune through exceptional hard work and astute business acumen in the field of . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Cited – Davis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
Cited – Cowan v Cowan CA 14-May-2001
When considering the division of matrimonial assets following a divorce, the court’s duty was, within the context of the rules set down by the Act, to impose a fair settlement according to the circumstances. Courts should be careful not to make . .
Cited – G v G (Financial Provision Equal Division) FD 2-Jul-2002
The family assets were in the region of andpound;8.5M. The wife sought a half share. The husband proposed that she should have 40%. The husband had built the family fortune through exceptional hard work and astute business acumen in the field of . .
Cited – Wells v Wells CA 20-Mar-2002
The court considered an application for ancillary relief. The assets were substantial, but before the judge was to deliver his judgment he accepted evidence from the husand that the sale of his business had fallen through and H’s income . .
Cited – M v M (Financial Relief: Substantial Earning Capacity) FD 29-Mar-2004
The parties had been married for 12 years, there were three children, one with special needs, and assets of over 12 million pounds. The court considered the application for ancillary relief. It was substantially agreed that the wife should receive . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 14 November 2022; Ref: scu.231278

Bodie v Bodie: CA 9 Mar 1998

The wife appealed an interim order made in ancillary proceedings by a district judge. Bitter proceedings still required to be concluded. Unfortunately the only way of achieving swift finality was for the matter to be listed early before a judge in the family division. The parties’ representatives must be careful not to allow costs to spiral.

Judges:

Lord Justice Peter Gibson Lord Justice Thorpe

Citations:

[1998] EWCA Civ 424

Jurisdiction:

England and Wales

Family

Updated: 14 November 2022; Ref: scu.143902

Ryder, Regina (on the Application of) v The Registrar of Births, Marriages and Deaths: Admn 20 Jun 2002

Gilliatt The claimant was born in 1949 with barely formed male genitalia. He was registered at birth as a male child. He lived for some of his life as a male and for some time as a female until he underwent gender reassignment surgery in 1999, since which time the claimed lived life entirely as a female. An application to have the birth certificate amended to reflect the gender change was refused by the Registrar. S 29(1) of the Births and Deaths Registration Act 1953 forbids unauthorised alterations of the register which must include the sex of the child. The court followed previous cases when it was decided that the register is a historical record. It accurately recorded the fact of gender at birth and the current case law did not allow amendment (appeal to the House of Lords pending in the case of Bellinger). Unless the House of Lords decided otherwise or Parliament provided otherwise, the claimant could not succeed in having the birth register amended.

Judges:

Mr Justice Lightman

Citations:

[2002] EWHC 1191 (Admin)

Links:

Bailii

Statutes:

Births and Deaths Registration Act 1953 29(1)

Jurisdiction:

England and Wales

Administrative, Family

Updated: 13 November 2022; Ref: scu.174981

Wicks v Wicks: CA 29 Dec 1997

A court has no power to make an interim order for the purchase of a house for the wife and children pending determination of the overall ancillary application. The result sought by the wife could have been achieved by application under section 17 of the Act of 1882, but ‘The power [under s.17] to order a sale of the former matrimonial home will not include a power to order possession of it. Nor should it do so during the subsistence of the marriage. To make an order, as the judge did here, for the husband to deliver up vacant possession is to make an order restricting or terminating the rights of occupation which are conferred upon the husband by virtue of s.1 of the Matrimonial Homes Act 1983 . . The judge was not asked to consider the [Act of] 1983, but she should have been. The respondent should not have been required to vacate the matrimonial home save and except where the court has taken into account and balanced the factors set out in s.1(3) of the 1983

Judges:

Ward LJ

Citations:

Times 29-Dec-1997, Gazette 04-Feb-1998, [1997] EWCA Civ 3050, [1998] 1 FLR 470, , [1998] Fam Law 311, [1999] Fam 65, [1998] 1 All ER 977, [1998] 3 WLR 277

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 25, Married Women’s Property Act 1882 18

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 November 2022; Ref: scu.90481

Kremen v Agrest: CA 5 Feb 2013

Citations:

[2013] EWCA Civ 41, [2011] 2 FLR 478

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 35

Jurisdiction:

England and Wales

Citing:

See Also – Kremen v Agrest FD 15-Oct-2010
Application as to payment of funds held where the payer was a fugitive from justice, owing sums in maintenance to the claimant. W applied for an order setting aside a charge granted by H over property. In previous hearing the court had found that H . .
See Also – Kremen v Agrest (No 2) FD 3-Dec-2010
An application was made in ancillary relief case to set aside the transfer of a share in a company said to have been backdated to defeat the court’s jurisdiction.
Held: Mostyn J considered an There was a ‘strong practical reason why the cloak . .
See Also – Agrest and Another v Kremen CA 24-Jan-2011
Application for permission to appeal. . .
See Also – Kremen v Agrest CA 13-Apr-2011
. .
See Also – Kremen v Agrest CA 19-Oct-2011
. .
See Also – Kremen v Agrest (No11) FD 19-Jan-2012
Financial Remedy: Non-Disclosure: Post-Nuptial Agreement . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 November 2022; Ref: scu.470736

Hamilton v Hamilton: CA 24 Jan 2013

The parties had obtained an ancillary relief order by consent. That order was later varied at the request of the wife. The husband now appealed against the order saying it was not open to him to vary what had been agreed to.

Judges:

Thorpe, Kitchin LJJ, Baron J

Citations:

[2013] EWCA Civ 13

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 23(3)(C)

Jurisdiction:

England and Wales

Family

Updated: 13 November 2022; Ref: scu.470552

Ajoh, Regina (on the Application of) v Secretary of State for the Home Office: Admn 16 May 2006

Citations:

[2006] EWHC 1489 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appel from – AJoh, Regina (on the Application of) v Secretary of State for the Home Department CA 4-Jul-2007
The applicant complained of the delay in the processing of her asylum application.
Held: ‘It was reasonable to expect that both [the applicant] and her husband would be aware of her precarious immigration status’. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family

Updated: 10 November 2022; Ref: scu.242947

Berrehab v The Netherlands: ECHR 21 Jun 1988

Family life arises ipso jure as between father and child where the child was conceived in wedlock. Divorce and separation do not bring family life between the child and the absent parent to an end, even if the divorce leads to a significant period of loss of contact

Citations:

[1988] ECHR 14, 10730/84, [1988] ECHR 14

Links:

Worldlii, Bailii

Jurisdiction:

Human Rights

Cited by:

Cited – Singh v Entry Clearance Officer New Delhi CA 30-Jul-2004
The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family . .
Cited – Makhlouf v Secretary of State for The Home Department SC 16-Nov-2016
(Northern Ireland) The appellant (born in Tunisia) was made subject to a deportation order. He had married a UK citizen and they had a child. After moving to the UK, at various times, the relationship broke down and he was convicted of several . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 10 November 2022; Ref: scu.165013

Piglowska v Piglowski: CA 3 Nov 1997

The husband appealed against an order made on an ancillary relief application saying that the judge had refused to admit further evidence.

Judges:

Simon Brown, Ward LJJ

Citations:

[1997] EWCA Civ 2622

Jurisdiction:

England and Wales

Cited by:

Appeal from – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 10 November 2022; Ref: scu.143021

Brewster, Re Judicial Review: QBNI 9 Nov 2012

The applicant challenged the decision of the respondent Northern Ireland Local Government Officers’ Superannuation Committee (‘NILGOSC’) made on 1 July 2011, by which it declined to pay a survivor’s pension to the applicant following the death of her co-habiting partner. She argued that the absolute requirement of nomination imposed on unmarried partners as a condition of eligibility for a survivor’s pension under the 2009 regulations constitutes unlawful discrimination contrary to article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), when read in conjunction with article 1 of the First Protocol (A1P1) to ECHR.
Held: The court declared that the requirement of nomination of a cohabiting partner in the 2009 scheme was not compatible with article 14 ECHR read together with A1P1, and quashed the decision of NILGOSC by which it had declined to pay the appellant a survivor’s pension.
The nomination requirement was ‘an instrument of disentitlement’ in relation to unmarried partners and that whilst the impugned regulations pursued a legitimate aim, there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

Judges:

Treacy J

Citations:

[2012] NIQB 85

Links:

Bailii

Statutes:

Local Government Pension Scheme (Benefits, Membership
and Contributions) Regulations 2009, European Convention on Human Rights 14

Jurisdiction:

Northern Ireland

Cited by:

Appeal from – Brewster v Northern Ireland Local Government Officers’ Superannuation Committee CANI 1-Oct-2013
Appeal by the Committee and the Department of the Environment for Northern Ireland from a decision allowing the respondent’s application for judicial review of a decision by the Superannuation Committee not to pay a survivor’s pension to the . .
At First Instance – 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 . .
Lists of cited by and citing cases may be incomplete.

Employment, Family, Financial Services, Human Rights

Updated: 09 November 2022; Ref: scu.466481

Re Erskine 1948 Trust: ChD 29 Mar 2012

The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last beneficary’s death, all impediments to inheritance by adopted children had been removed by statute.
Held: The assorted Adoption Acts were limited so as to exclude any effect on the situation. But for the Human Rights issue, the clause would be interpreted on the basis of the law as at the date of the settlement, and: ‘the ECtHR has an emphatic aversion to discrimination against illegitimate and adopted children. But in the context of the present case this aversion is not easy to apply directly. In the first place the Convention became part of English law only in 2000. The question of retrospectivity therefore arises : how does the Convention affect the construction of a definition enacted almost 75 years before the Convention became part of English law? Second, even if the Convention affects the construction of a statute, to what extent does it affect the construction of a private-law disposition which incorporates a statutory definition? ‘ Though the ECHR had recognised such a right as legitimate in individual cases, those case concerned provisions by statute, not those by individuals.
By 1948 the legal framework for adoption had been established by the 1926 Act, and section 5 expressly enacted that adoption had no effect to confer inheritance rights on adopted children unless a contrary intention appears. That was the state of English law when the settlement came to be made in 1948. Seeing that there was no express contrary provision in that settlement, it follows that the use of the defined phrase ‘statutory next of kin’ did not include adopted children.

Judges:

Mr Mark Herbert QC

Citations:

[2012] EWHC 732 (Ch), [2012] 3 All ER 532, [2012] 3 FCR 114, [2012] WTLR 953, [2013] Ch 135, [2012] Fam Law 809, 14 ITELR 890, [2012] WLR(D) 104, [2012] 3 WLR 913, [2012] 2 FLR 725

Links:

Bailii

Statutes:

Adoption of Children Act 1926 5, Adoption Act 1950, Adoption Act 1976, Administration of Estates Act 1925 46(1)(v) 50(1), Interpretation Act 1978 20(2), European Convention on Human Rights, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Cited – In re Hooper’s Settlement, Phillips v Lake CA 1943
A 1912 settlement created a trust ‘for such person or persons as would have become entitled to the settled fund under the statutes for the distribution of the personal estate of intestates at the death of the settlor had he died possessed thereof . .
Cited – In re Gansloser’s Will Trusts CA 1952
A 1929 will created a trust in favour of the testator’s widow’s ‘relatives’.
Held: The term referred to the persons who would have taken under the pre-1926 statutes of distribution. Evershed MR set out the normal principle, that the . .
Cited – Falkiner and Another v The Commissioner of Stamp Duties PC 7-Nov-1972
New South Wales – The settlor had made a settlement on 4 October 1961 and died 11 days later. The ultimate trust was in favour of ‘the next of kin of the settlor as determined by the provisions now in force of the Wills, Probate and Administration . .
Cited – In re Bourke’s Will Trusts ChD 1980
The 1938 will of a testator was at issue. He died in 1943. The trusts included a life interest for the testator’s widow and, on her death without issue (which happened in 1971), residue was given to the testator’s three half-siblings ‘or their heirs . .
Cited – Pla and Puncernau v Andorra ECHR 13-Jul-2004
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .
Cited – Upton v United Kingdom ECHR 11-Apr-2006
Admissibility – the claimant said that he had been disinherited from his grandfather’s will, being illegitimate. The will made in 1930 was in favour of the testator’s children and grandchildren. The applicant’s father was the testator’s eldest son, . .
Cited – Brauer v Germany ECHR 28-Jan-2010
Just satisfaction – friendly settlement . .
Cited – Secretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Brauer v Germany ECHR 28-May-2009
The applicant was born outside marriage in 1948 in East Germany and claimed a share of the estate of her father, who had lived in West Germany dying in 1998. A West German statute of 1969 put illegitimate children on a equality with children of a . .
Cited – Tailby v Official Receiver HL 1888
A creditor can create, for good consideration an equitable charge over book debts which will attach to them as soon as they come into existence.
Lord Macnaghten said: ‘It was admitted by the learned counsel for the respondent, that a trader . .
Cited – In re Ellenborough, Towry Law v Burne ChD 1903
The court declined to give effect to a voluntary disposition of a mere expectancy. Buckley J said: ‘It cannot be and is not disputed that if the deed had been for value the trustees could have enforced it. If value be given, it is immaterial what is . .
Cited – Upton v United Kingdom ECHR 11-Apr-2006
Admissibility – the claimant said that he had been disinherited from his grandfather’s will, being illegitimate. The will made in 1930 was in favour of the testator’s children and grandchildren. The applicant’s father was the testator’s eldest son, . .

Cited by:

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.

Wills and Probate, Family, Human Rights

Updated: 09 November 2022; Ref: scu.466372

Barnett v Hassett: 1981

H had left the matrimonial home, and W contracted for its sale, the husband registered a Class F land charge, apparently to secure payment of what he said was due to him.
Held: The registration was set aside. This had been a short marriage, and H had no intention of returning to what had been W’s house. Class F charges are to be used only to protect rights of occupancy, and not to secure financial advantage. The registration was an improper use of the procedure.

Judges:

Wood J

Citations:

[1982] 1 All ER 80, [1981] 1 WLR 1385

Statutes:

Matrimonial Homes Act 1967

Jurisdiction:

England and Wales

Family, Land

Updated: 09 November 2022; Ref: scu.383836

Neuman v Neuman: 1926

The court considered the validity of a marriage created by a ceremony according to the Jewish faith.

Citations:

Times 15-Oct-1926

Jurisdiction:

England and Wales

Cited by:

Cited – Hudson v Leigh FD 5-Jun-2009
The claimant sought a decree of divorce. The ceremony had been a religious one in Cape Town. They had intended it to be followed by a ceremony in a register office in England, but this did not happen. The pastor in south Africa said that he had . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 November 2022; Ref: scu.376131

Thyssen-Bornemisza v Thyssen-Bornemisza (No 2): 1985

Judges:

Sir John Arnold P

Citations:

[1985] FLR 1069

Jurisdiction:

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 . .
Followed – Dart v Dart CA 2-Jul-1996
A strictly mathematical approach to calculating ancillary relief can be inappropriate in large sum cases. The statutory jurisdiction has to provide for all applications for ancillary financial relief, from the poverty stricken to the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 November 2022; Ref: scu.375973

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 by a Spanish court.
Held: The court could not understand why very substantial sums had already been spent on legal fees. The husband’s lawers had been unable to identify any substantial advantage which might arise from the claim being dealt with in Spain.

Judges:

Thorpe LJ, Lawrence Collins LJ, Munby J

Citations:

Times 25-Apr-2007, [2007] EWCA Civ 361, [2007] 2 FLR 339, [2007] 2 FCR 353, [2007] Fam Law 698, [2007] ILPr 36

Links:

Bailii

Statutes:

Matrimonial and Family Proceedings Act 1984

Jurisdiction:

England and Wales

Citing:

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 – Bentinck v Bentinck CA 6-Mar-2007
The court intervened to attempt to avoid further expenditure of huge sums in legal fees in resolving a sterile jurisdictional dispute for ancillary relief proceedings. Over pounds 330,000 had already been spent. . .
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 – Overseas Union Insurance Ltd and others v New Hampshire Insurance Company ECJ 27-Jun-1991
ECJ Article 21 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted as meaning that the rules applicable to lis alibi pendens . .
Cited – Krenge v Krenge 1999
The power in an English court to stay family proceedings here in favour of a foreign jurisdiction exists independently of any statute. . .
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 – D v P (Forum Conveniens) FD 7-Oct-1998
Where parties had divorced here, but had previously entered into a separation agreement abroad, it was proper to stay the ancillary relief proceedings here, and prefer the jurisdiction where the agreement had been made. . .

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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 November 2022; Ref: scu.251412

T Messer and Another v Messer: CA 21 Dec 2004

Order for possession

Judges:

Lord Justice Waller

Citations:

[2004] EWCA Civ 913

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Messer v Messer CA 19-Jan-2005
Possession of house after breakdown of relationship . .

Cited by:

See Also – Messer v Messer CA 19-Jan-2005
Possession of house after breakdown of relationship . .
Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 09 November 2022; Ref: scu.222650

McRoberts v McRoberts: ChD 1 Nov 2012

The parties had agreed to an ancillary relief order on their divorce. The husband was made bankrupt without having paid the lump sum agreed. The former wife and now claimant had received no dividend. Debts which were not provable in the bankruptcy are not released: they are untouched by the process. The former husband now sought an order discharging the debt on his own discharge.
Held: The order was refused, and the obligation remained in place.
Hildyard J said of the discretion given to the court: ‘the purpose of the discretion is to enable the Court, in order better to achieve the objectives of discharging a bankrupt, to release an obligation if persuaded that the likelihood of its being satisfied is not such that its continuance is likely to have be of any benefit to the obligee, and that, conversely, its release is necessary in order to assist the obligor in building a viable financial future. ‘ The attempt to recharacterise the payment of a lumps sum by instalments as maintenance failed because: ‘(a) I am not persuaded that the relevant obligation should be re-characterised as in substance an order for maintenance payments (b) I am not persuaded it would be open to review in matrimonial proceedings and (c) in any event, I do not consider that the discretion conferred by section 381(5) of the IA was intended to extend to such a review.’
Evidence did not support the feeling that the claimant had ‘ done everything he can to discharge his obligations to his ex-wife; they do encourage a sense that the Applicant’s finances may not be entirely transparent. By contrast, they do encourage a feeling, since these fairly substantial sums were being provided to him whilst the obligation to pay subsisted, that if (as he maintains he will) he demonstrates the allegations against him to be false he may well be able to generate funds or means of support in the future which may be enough both for his and his family needs and also to begin to enable him to reduce the lump sum outstanding. ‘

Judges:

Hildyard J

Citations:

[2012] EWHC 2966 (Ch), [2012] WLR (D) 305

Links:

Bailii, WLRD

Statutes:

Insolvency Act 1986 281(5), Matrimonial Causes Act 1973 23(3)(c)

Jurisdiction:

England and Wales

Citing:

Cited – Smith (a bankrupt) v Braintree District Council HL 1989
The House considered the effects of bankruptcy on the imposition of a committal to imprisonment in default of paying rates.
The purpose of section 285 is to preserve the estate of the bankrupt for the benefit of his unsecured creditors.
Cited – Woodley v Woodley (2) CA 12-Apr-1993
A stay of execution of an order against matrimonial assets was not defeated by bankruptcy. As to the interplay of the Insolvency Rules and matrimonial proceedings.
Balcombe LJ said: ‘I cannot leave this case without saying something about the . .
Cited – In re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 06 November 2022; Ref: scu.465631

Petrodel Resources Ltd and Others v Prest and Others: CA 26 Oct 2012

The parties had disputed ancillary relief on their divorce. The three companies, each in the substantial ownership of the husband, challenged the orders made against them saying there was no jurisdiction to order their property to be conveyed to the wife in satisfaction of the husband’s judgment debt. The order had been made following the standard practice in the Family Division to treat the assets of companies substantially owned by one party to the marriage as available for distribution under section 24 of the Matrimonial Causes Act, provided that the remaining assets of the company are sufficient to satisfy its creditors.
Held: The appeals succeeded (Thorpe LJ dissenting). The practice developed by the Family Division was beyond the jurisdiction of the court unless (i) the corporate personality of the company was being abused for a purpose which was in some relevant respect improper, or (ii) on the particular facts of the case it could be shown that an asset legally owned by the company was held in trust for the husband. The judge having rejected both possibilities on the facts, he ought not therefore to have made the order.
The order had been made without jurisdiction because its effect was to equate control of a company with the beneficial ownership of its assets. Rimer LJ said that: ‘The flaw in the ‘power equals property’ approach is that it ignores the fundamental principle that the only entity with the power to deal with assets held by it is the company. Those who control its affairs – even if the control is in a single individual – act merely as the company’s agents. Their agency will include the authority to procure an exercise by the company of its dispositive powers in respect of its property, but those powers are still exclusively the company’s own: they are not the agents’ powers. When and if the agents act as such, and procure a corporate disposition, the property which immediately before the disposition belonged to the company will become the property of the disponee. Until then, it remains the property of the company and belongs beneficially to no-one else. The judge’s point that the agent is automatically the owner of all the company’s assets by the mere fact of his authority to procure the company to dispose of them to himself is astonishing and does not begin to pass muster. And why should it? The proposition was simply the fruit of a judicial attempt to shoehorn into section 24(1)(a) assets which manifestly do not fit there. The judge’s finding that the husband’s mastery of the companies meant that they and their assets were his, and that they were the equivalent of mere nominees or agents for him (see, for example, his paragraph 225), could have been lifted directly from the argument of counsel for the respondents that was rejected in Salomon (see [1897] AC 22, at 28, 29).
That is probably all that needs to be said about the judge’s ‘power equals property’ theory. I shall, however, add a little more. A further reason why the theory does not work is that the judge overlooked that even the one-man in such a company does not have unlimited power to procure the company to deal as he would wish with the company’s assets. He may in practice be able to do so, by procuring the payment of its money and the execution of corporate dispositions right, left and centre, all perhaps for nothing in return. But he will not be able to do so lawfully. Even he will be constrained by the capital maintenance provisions which limit such wholesale disposals. He cannot, for example, lawfully procure the making of distributions by the company save out of its distributable profits and, if he does, the distribution will be unlawful and void. I discussed such problems in Inn Spirit Ltd v. Burns and Another [2002] 2 BCLC 780, which concerned a one-man corporate group, in which the one-man purported to pay himself a dividend. The one-man is not in a position lawfully to distribute to himself the entirety of his company’s assets at any time. To revert to the judge’s paragraph 225, there is a ‘legal impediment’ to wholesale transfers by a company in favour of its one-man controller. Only when the one-man lawfully procures the exercise of the corporate power of disposition in his own favour is it possible to identify which property has ceased to belong to the company and has become his.’

Judges:

Thorpe, Rimer, Patten LJJ

Citations:

[2012] EWCA Civ 1395, [2013] 2 FLR 576, [2013] 2 WLR 557, [2013] 1 All ER 795, [2012] 3 FCR 588, [2013] 2 Costs LO 249, [2012] WLR(D) 296, [2013] Fam Law 150

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24

Jurisdiction:

England and Wales

Citing:

Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .

Cited by:

Appeal from – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Family, Company

Updated: 06 November 2022; Ref: scu.465369

In Re H (A Minor) (Chambers Proceedings: Mckenzie Friend): CA 6 May 1997

A father sought ex parte, permission to appeal against orders in the county court. The first had refused to allow him to have a McKenzie friend in an application for contact to his daughter. The Recorder had taken the view that because the proceedings were in chambers it was inappropriate to have anyone other than the parties and the lawyers present.
Held: Leave was given. It was proper for the court to allow a McKenzie friend for a litigant in person to help in chambers as in open court.
Ward LJ said: ‘The father seeks leave to appeal against that part of the recorder’s order which excluded his McKenzie Friend. I would easily come to the conclusion, not only that that was arguable, but that it was probably plainly wrong. The recorder ought not to have taken the view that a McKenzie friend should be removed, even if the matter proceeds in chambers as a matter affecting a child. Provided the McKenzie friend does not more than a McKenzie friend is entitled to do, that is to sit and advise and quietly to offer help, I for my part can see no objection to that whatever. I note with approval that when the matter next came to the court before his Honour Judge Paul Clarke the judge correctly and promptly , without question, permitted the presence of the friend who was then there to assist the father.’

Judges:

Ward LJ, Millett LJ

Citations:

Times 06-May-1997, [1997] EWCA Civ 1436, [1997] 2 FLR 423

Jurisdiction:

England and Wales

Cited by:

Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Cited – Re M (Contact: Family Assistance: McKenzie Friend) CA 1999
A father appealed a refual of consent for him to be allowed assistance from a McKenzie Friend.
Held: He should have been allowed assistance on the contact and other applications. It was ‘a matter of regret’ that the father had been denied the . .
Cited – Regina v Bow County Court, Ex Parte Pelling CA 17-Dec-1999
Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, . .
Not binding – Regina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 05 November 2022; Ref: scu.81919

Evans v Evans: CA 8 Aug 2012

W had petitioned for divorce. Eventually H applied for the decree nisi during protracted ancillary relief proceedings. W no applied to have the decree set aside on the basis that new evidence, had it then been available would have caused the judge to decline to make the order.
Held: It could not be safely said that the judge would have made the same order if the facts had been known.

Judges:

Thorpe, Laws LJJ, Sir Stephen Sedley

Citations:

[2012] EWCA Civ 1293

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 05 November 2022; Ref: scu.465106

Musa and Others v Holliday and Others: CA 15 Oct 2012

Judges:

Sir Nicholas Wall P FD, Lloyd, Sullivan JJ

Citations:

[2012] EWCA Civ 1268

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

See Also – Holliday and Another v Musa and Others CA 30-Mar-2010
The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 05 November 2022; Ref: scu.464848

Abdin (Domicile – Actually Polygamous Marriages) Bangladesh: UTIAC 10 Sep 2012

UTIAC Whilst the Private International Law (Miscellaneous Provisions) Act 1995 amended section 11(d) of the Matrimonial Causes Act 1973 so that a potentially polygamous marriage would not be void if either party was at the time of the marriage domiciled in England and Wales, it did not alter the position regarding actually polygamous marriages. Under section 11(d) of the 1973 Act a polygamous marriage entered into outside England and Wales shall still be void if either party at the time of the marriage was domiciled in England and Wales.

Judges:

Storey UTJ

Citations:

[2012] UKUT 309 (IAC)

Links:

Bailii

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995, Matrimonial Causes Act 1973 11(d)

Jurisdiction:

England and Wales

Immigration, Family

Updated: 05 November 2022; Ref: scu.464258

Crossley v Crossley: CA 21 Dec 2005

The claimant appealed an order that a house was to be held in equal shares with her son. The house was registered in their joint names, but the transfer contained no declaration of the interests. The house had been originally bought by the mother and father and the son whose name was put on the house and mortgage ‘to give him some interest.’ The father had since died.
Held: The judge had been correct to reject a presumption of a resulting trust, given express findings as to the parties intentions. Whilst her judgment was subject to criticism, she had been entitled to reach the conclusion she had done: ‘the legal estate had been transferred to the defendant as well as Mr Alan Crossley and the appellant. They were joint tenants of that legal estate, and in the absence of evidence to the contrary the equitable interests would follow the legal interests. . . the transferees undertook joint and several liability under the mortgage. That too suggests a beneficial joint tenancy of the property on which the mortgage had been secured. Third, . . . Mr Alan Crossley told the defendant after the visit to the solicitors to complete the purchase that the property would be his one day, again suggests that Mr Alan Crossley was of the view that the defendant would take the property one day and would do so by survivorship. The defendant had siblings and Mr Alan Crossley died intestate, so that the likelihood is that as a result of the transfer into joint names it was expected that the defendant alone would own the property eventually by surviving his parents. Fourth, the appellant herself was of the view that the defendant would recover his contributions to the purchase and would do so on her death. Again, this is consistent with the surviving joint tenant taking on the death of the survivor of the joint tenants. ‘

Judges:

May LJ, Sir Peter Gibson

Citations:

[2005] EWCA Civ 1581

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996

Jurisdiction:

England and Wales

Citing:

Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Cowcher v Cowcher 1972
Where property is to be transferred into the names of two or more people, solicitors should take the instructions of transferees as to the beneficial interests in the transferred property. . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Lavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
Cited – Kyriakides v Pippas 2004
When considering the trusts on which land is held, and where there is no declaration of trust, the court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the purchaser’s real intention: ‘I . .
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 05 November 2022; Ref: scu.236610

Araghchinchi v Araghchinchi: CA 26 Feb 1997

Ward LJ referred to: ‘a category of cases which makes its way regularly through the divorce courts, where the court grapples with the dishonest and devious husband determined to conceal his assets and determined to frustrate both the court and the applicant seeking ancillary relief.’

Judges:

Ward LJ

Citations:

[1997] EWCA Civ 1091, [1997] 2 FLR 142

Jurisdiction:

England and Wales

Cited by:

Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 05 November 2022; Ref: scu.141487

Harris v Manahan: CA 1997

Application to vary ancillary relief order made by consent. Promptitude is required. Ward LJ considered substantial restraint on a judge hearing appeals against his own decisions.

Judges:

Ward LJ

Citations:

[1997] 1 FLR 205, [1996] 4 All ER 454

Jurisdiction:

England and Wales

Cited by:

Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 04 November 2022; Ref: scu.235252

Guidance (McKenzie Friends): 2005

Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] 1 FLR 724, Milne v Kennedy and Others [1999] TLR 106, Paragon Finance PLC v Noueiri (Practice Note) [2001] 1 WLR 2357). The litigant must apply at the outset of a hearing if he wishes the MF to be granted a right of audience or the right to conduct the litigation (Clarkson v Gilbert [2000] 2 FLR 839).’

Judges:

Sir Mark Potter P

Citations:

[2005] 35 Fam Law 405

Jurisdiction:

England and Wales

Citing:

Cited – D v S (Rights of Audience); In re and Application by Dr Pelling CA 18-Dec-1996
The court said that the representation of a litigant in person by a charging non-professional must be only exceptional. . .
Cited – Mensah v Islington Council and Another CA 1-Dec-2000
Permission was sought for a McKenzie friend to address the court. Peter Gibson LJ said: ‘In accordance with the overriding objective of the CPR and to avoid the waste of today’s hearing, attended as this court had earlier directed, by counsel for . .
Cited – Noueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .

Cited by:

Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Cited – In Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .
Cited – In re D (A Child) CA 15-Mar-2005
Application to allow representation by a solicitor who was presently struck off the roll denied. . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 04 November 2022; Ref: scu.227941

Newlon Housing Trust v Alsulaimen: CA 16 Jan 1997

The tenant had been joint tenant with his wife of a house. On the breakdown of the marriage, she left and gave notice to quit to the council. The council sought and obtained an order for possession, against which the husband now sought leave to appeal against a refusal of an adjournment so that he could pursue an application for a transfer of the tenancy into his name under the 1973 Act.
Held: The judge had made too much of the husband’s delay, and failure to make the proposed application: ‘ the summons had only been served on the husband on 9th April, it was the first hearing and the plaintiff’s position in regard to rent was assured. As to the second, the mere fact that a section 37 application had not been issued was of minimal significance. The husband had already been granted legal aid for that application. The correct way of dealing with the point would have been to make it a condition of the adjournment that the application should be issued within a short period.’
‘The notice to quit was a disposition. Section 37(6) provides that, with the exception of any provision contained in a will or codicil, that expression ‘includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise’. Since the notice to quit operated to assign to the plaintiff the interest not only of the wife but also of the husband under the tenancy, it was clearly an assurance of property within that provision. Its effect was no different from that of a surrender of the tenancy by both husband and wife.’

Judges:

Nourse LJ, Cazalet J

Citations:

Times 24-Jan-1997, [1997] EWCA Civ 793

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 37, Matrimonial Homes Act 1983 1 2

Jurisdiction:

England and Wales

Citing:

Cited – Kemmis v Kemmis (Welland and Others Intervening) CA 1988
H had mortgaged the matrimonial home to release funds to support his lifestyle. The bank knew about the family circumstances and the mortgage was set aside at first instance. W applied to have the charge set aside.
Held: The application . .

Cited by:

Appeal from – Newlon Housing Trust v Alsulaimen and Another HL 29-Jul-1998
A tenancy which had been terminated by a notice given by one of the joint tenants had expired. It did not come to an end by any deed, and so was not capable of being set aside by a family court in the course of divorce proceedings. The possession . .
Cited – London Borough of Harrow v Johnstone HL 13-Mar-1997
A possession action was lawful against a remaining joint tenant after a notice to terminate the tenancy had been given by the other tenant. An order against interference with possession of property did not extend to matters of the duration of the . .
Lists of cited by and citing cases may be incomplete.

Housing, Family

Updated: 04 November 2022; Ref: scu.141189

Pelling v Pelling: CA 15 Jan 1997

The appellant wished to appeal orders for costs made against him in family proceedings. The respondent had filed her bill of costs out of time, with no explanation of the delay. He contended that there was no foundation for the court to exercise its discretion to allow the bill. In the second case he said the judge had been wrong to say that no extension of time was required.
Held: What he described was desirable good practice, but did not prevent a taxation of the costs.

Judges:

Lord Justice Mummery

Citations:

[1997] EWCA Civ 776

Jurisdiction:

England and Wales

Citing:

Cited – Chapman v Chapman ChD 1985
The plaintiff had been awarded her costs in a probate action, but had then failed to commence proceedings for taxation in time. When her solicitors did proceed, they gave no notice. She appealed an award of nominal costs only.
Held: Order 3 . .
Lists of cited by and citing cases may be incomplete.

Costs, Family

Updated: 04 November 2022; Ref: scu.141172

Davies v Welch: Admn 4 Nov 2010

The applicant sought the committal of the respondent for contempt. The defendant, a solicitor had acted for the claimant’s wife in ancillary relief proceedings. He complained that documents sent to her under implied undertakings of confidentiality within those proceedings had been sent to the Child Support Agency. The defendant admitted the act, saying that it was unwitting and had apologised.
Held: The information could have been (but was not) lawfully demanded by the Agency, and subsequent changes in legislation would mean that the defendant’s behaviour would not now be a contempt. Had she applied for leave, the court’s almost inevitable decision would have been for disclosure, and ‘this is plainly not a case calling for the committal order sought by Mr Davies. Indeed, in my judgment, it calls for no order at all, subject to consideration of the issue of costs. Mrs Welch acted in contempt of court through an oversight; it was an oversight which should not have occurred, given her professional knowledge and responsibilities, but the breach was not a serious one. This was a committed family solicitor who acted in good faith and for purposes which she considered to be entirely proper.’

Judges:

Richards LJ, Cranston J

Citations:

[2010] EWHC 3034 (Admin), [2011] Fam Law 136, [2011] 1 FLR 1241

Links:

Bailii

Statutes:

Child Support Act 1991 49B, Family Proceedings Rules 10.21A

Jurisdiction:

England and Wales

Citing:

Cited – Gelber v Griffin FD 22-Nov-2006
Complaint was made that a party had disclosed confidential material received through disclosure to a third party.
Held: There was an implied duty of confidence arising in the disclosure process. . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Family, Child Support

Updated: 03 November 2022; Ref: scu.427010

P v P (Financial Provision: Non-disclosure): 1994

The applicant wife had been shown to have been guilty of considerable misconduct of the financial case. It was submitted that, as a result of that misconduct, the court should reduce the wife’s award on the application of the Section 25(2)(g) criterion.
Held: The appropriate penalty was in costs, not in a reduction in the assets awarded. Thorpe J said: ‘There was no principle that serious non-disclosure would always be penalised in costs.’
The wife was shown under cross examination to have made a serious under-disclosure in her ancillary relief application. H argued that this should be reflected in the award to be made to her.
Held: Thogh not invariably so, the consequences should be in an appropriate order for costs: ‘It seems to me that in that case such price as is to be paid by the dishonest litigant is a price in costs, not in reduction of the appropriate share of the available assets. The suggestion contained in the last sentence of Lincoln J’s judgment that maxims of equity should be applied to deny or reduce relief I cannot follow. It seems to me that the court has a duty to discharge a statutory function on the application of statutory criteria, and maxims of equity have nothing to do with it.’

Judges:

Thorpe J

Citations:

[1994] 1 FCR 293

Statutes:

Matrimonial Cause Act 1973 25(2)(g)

Jurisdiction:

England and Wales

Citing:

Cited – B v B 1988
When the husband’s sole asset is a business which cannot be sold for the ancillary relief proceedings, it would be pointless to order its valuation. . .

Cited by:

Cited – Tavoulareas v Tavoulareas (2) CA 19-Nov-1996
Both husband and wife had independent means, and neither worked. The wife had spent pounds 100,000k on Children Act proceedings, and sought ancillary relief. The judge had made an order on capital to reflect the fact that if those costs had not been . .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 03 November 2022; Ref: scu.235326

J v S T (Formerly J): CA 21 Nov 1996

The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in court, but the plaintiff said that his wife had known the true position. He now appealed an order refusing him ancillary relief. The marriage was annulled.
Held: The majority of the court refused to dismiss the applicant’s ancillary relief claim on the public policy ground. ‘Although the power given to the Court under Section 25 of the Matrimonial Causes Act l973 gives the court the broadest discretion ‘in deciding whether to exercise its powers… and, if so, in what manner’, we must, if we are strictly to answer the question posed in the preliminary issue, decide whether or not this claim is debarred on grounds that it is contrary to public policy.
It seems to me that the answer to the question whether the claim is tainted with turpitude depends not on whether the person against whom the claim is made will suffer disadvantage; but rather on whether there is a discernible public interest which will be damaged by the court’s sanctioning the prosecution of the claim. ‘ The court considered the nature of marriage and whether the claimants actions had done so much to undermine it as to disallow an action.

Citations:

[1996] EWCA Civ 1016, [1998] Fam 103, [1998] 1 All ER 431

Links:

Bailii

Statutes:

Perjury Act 1911 3, Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Citing:

Distinguished – Whiston v Whiston CA 8-May-1995
A bigamist is unable to claim ancillary relief in the second marriage; would be against public policy. Since bigamy was a serious crime which undermined fundamental notions of monogamous marriage, the Court would not as a matter of public policy . .
Cited – Regina v Tan CA 1983
Tan and others were accused of keeping a disorderly house having advertised: ‘Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble . .
Cited – Corbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .
Cited – Rees v The United Kingdom ECHR 17-Oct-1986
The applicant had been born and registered as a female, but later came to receive treatment and to live as a male. He complained that the respondent had failed to amend his birth certificate.
Held: The court accepted that, by failing to confer . .
Cited – Cossey v The United Kingdom ECHR 27-Sep-1990
A male to female transsexual who had undergone full gender reassignment surgery wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary . .
Cited – Bateman v Bateman 1898
An Ecclesiastical Court has power to order payment of alimony pending suit. . .
Cited – Dunbar (otherwise White) v Dunbar 1909
In a case alleging non-consummation of a marriage, the court discussed the purpose of the 1907 Act: ‘The object of that Act, so far as nullity suits are concerned, was to remedy a defect that previously existed. In some cases of nullity, for . .
Cited – Ramsey v Ramsey (otherwise Beer) 1913
The parties had contracted a bigamous mariage, though each in fact believed it not to be so. As to the court’s powers to order maintenance under the 1907 Act: ‘It is quite clear that the Matrimonial Causes Act 1907 gives me power to grant . .
Cited – Gardiner (otherwise Phillips) v Gardiner 1920
A petition for nullity of a marriage was based upon an allegation of incapacity: ‘Every case of this kind must be decided on its own facts, and an appeal for permanent maintenance after a decree of nullity is not an appeal to a set of fixed . .
Cited – Talbot v Talbot 1967
A marriage had been celebrated, but in fact both parties were women.
Held: The marriage was annulled: ‘there was plainly no marriage and pronounced a decree nisi (of nullity) saying that the decree could be made absolute forthwith.’ . .
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 – P v S and Cornwall County Council ECJ 30-Apr-1996
An employee at an educational establishment told management that he intended to undergo gender reassignment. He was given notice of dismissal.
Held: The scope of the Directive was not confined to discrimination based on the fact that a person . .
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 – Gray v Barr CA 1971
A husband had accidentally shot and killed his wife’s lover after threatening him with a shotgun.
Held: The court confirmed the decision at first instance. He was not liable to be indemnified by his insurers for the losses claimed against him . .
Cited – Re Hall 1914
Hamilton LJ said: ‘The (suggested) distinction (between murder and manslaughter) seems to me to encourage what, I am sure, would be very noxious – a sentimental speculation as to the motives and degree of moral guilt of a person who has been . .
Cited – Hardy v Motor Insurers’ Bureau CA 1964
The court was asked whether insurance pursuant to the Road Traffic Act 1960 would provide valid cover for the benefit of a third party injured by deliberately criminal conduct on the part of the driver.
Held: Diplock LJ said: ‘The rule of law . .
Cited – Cleaver v Mutual Reserve Fund Life Association CA 1892
The deceased’s executors objected to his widow maintaining action on a trust created by an insurance policy in her favour under the Act. She had been convicted of his murder. The executors’ case was that ‘it is against public policy to allow a . .
Cited – Re H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Puttick CA 1981
The applicant, then Astrid Proll, fled bail in Germany when awaiting trial on terrorist charges, entered England and under a false name, and married Mr Puttick. She resisted extradition saying that under the 1948 Act she was now a British National. . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Regina v Registrar General, ex parte Smith CA 1991
The applicant was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive . .
Cited – Euro-Diam Ltd v Bathurst CA 1990
The illegality defence was invoked in response to a claim on a property insurance.
Held: The court noted the extension of the concept of ex turpi causa non oritur actio: ‘It applies if in all the circumstances it would be an affront to the . .
Cited – In re Royce (Deceased) 1985
The court considerd an application under the 1975 Act where the claimant had been convicted of the manslaughter of her husband with a finding of diminished responsibility, and was the sole beneficiary under his will. The Forfeiture Act 1982 was not . .
Cited – Pearce v Brooks 1866
The contract was for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract as . .
Cited – Beresford v Royal Insurance Co Ltd CA 1937
Major Beresford had shot himself. The court considered the applicability of the forfeiture rule in a case involving a suicide: ‘suicide when sane is by English law a felony. This has been so from very early times. The law is thus succinctly stated . .
Cited – Lindo, By Her Guardian v Belisario 5-Jun-1795
(Consistory Court of London) Sir William Scott considered the notion of marriage: ‘The opinions which have divided the world, or writers at least, on this subject, are, generally, two. It is held by some persons that marriage is a contract merely . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Vervaeke v Smith CA 1981
The issue was whether a Belgian decree pronouncing void a marriage celebrated in England should be recognised here. The parties had entered into the marriage with no intention of ever living together. Relying on its notion of public policy, the . .
Cited – Egerton v Earl of Brownlow HL 1853
The House considered a challenge to the terms of a trust on the basis that it offended public policy. The House therefore considered the nature and importance of public policy.
Held: Public policy ‘has been confounded with what may be called . .
Cited – Spiers v Hunt 1908
The marriage tie and the married state was held to be so fundamental that it was morally wrong and against public policy to become engaged whilst still married. . .
Cited – The Ampthill Peerage Case HL 1977
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial.
Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: ‘The law knows, . .
Cited – Blunt v Blunt 1943
Viscount Simon considered the variety of options available to a court faced with an allegation of adultery: ‘I would add a fifth (consideration) of a more general character, which must, indeed, be regarded as of primary importance, namely, the . .
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 – 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 – In re Giles Deceased 1972
A woman had killed her husband, but been convicted of manslaughter rather than murder on grounds of diminished responsibility. A hospital order was made under the Mental Health Act 1959. It was argued that in these circumstances the forfeiture rule . .
Cited – Kassim v Kassim 1962
In the case of a marriage void for bigamy the court had no jurisdiction to withold a decree of nullity. . .
Cited – Fender v St. John-Mildmay 1937
The general rule against becoming engaged whilst still married does not apply when a decree nisi has been pronounced. However, Lord Atkin said: ‘There is real substance in the objection that such a promise tends to produce conduct which violates the . .

Cited by:

Cited – Sudershan Kumar Rampal v Surendra Rampal CA 19-Jul-2001
The parties were divorced, but when the husband applied for ancillary relief, the wife petitioned for nullity on the basis that the marriage was bigamous. The husband countered that she had known that his first marriage had only ended after this . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 November 2022; Ref: scu.140883

Tavoulareas v Tavoulareas (2): CA 19 Nov 1996

Both husband and wife had independent means, and neither worked. The wife had spent pounds 100,000k on Children Act proceedings, and sought ancillary relief. The judge had made an order on capital to reflect the fact that if those costs had not been spent W would have had the money available as capital.
Held: Whilst the judge may have wrongly included the costs sum, he had at the same time undervalued W’s income from investments. It was also said that the provision of a house under a trust was incompatible with the need for a clean break, as to which ‘I see no error of principle in selecting a settlement order for the provision of accommodation in a clean break case. Such a choice may be unusual and may need to be justified by exceptional features, but it is plainly within the ambit of judicial choice. ‘ As to the misconduct of the proceedings alleged by H: ‘The criterion of conduct under Section 25 (2) (g) of the Act is clearly stated to be relevant if the court concludes that it would be inequitable to disregard it. But it does seem to me that a clear distinction must be drawn in all these cases between what might loosely be described as marital conduct and what might conveniently be described as litigation conduct. It seems to me as a matter of construction that Section 25 (2) (g) is plainly aimed at marital misconduct. If the applicant’s misconduct is limited to misconduct within the ancillary relief case long after the separation of the parties, it is, in my judgment, questionable whether that factor should go to diminish the quantum of the financial award. ‘ The judge should however have created a trust reverting to the child rather than a charge.

Citations:

[1996] EWCA Civ 994, [1998] 2 FLR 418, [1999] 1 FCR 133, [1998] Fam Law 521

Statutes:

Matrimonial Causes Act 1973 25(2)(g)

Jurisdiction:

England and Wales

Citing:

Cited – P v P (Financial Provision: Non-disclosure) 1994
The applicant wife had been shown to have been guilty of considerable misconduct of the financial case. It was submitted that, as a result of that misconduct, the court should reduce the wife’s award on the application of the Section 25(2)(g) . .
Cited – M v M 1995
The court considered the consequences of mis-disclosure in ancillary relief proceedings. Thorpe J said: ‘Conduct is only relevant in so far as the wife relies upon the manner in which the husband has conducted these proceedings. Ordinarily speaking, . .
Cited – Lord Lilford v Glyn CA 1979
The judge had ordered the father to make money settlements on his daughters which had no relation to accommodation or their need during minority.
Held: The judge had gone quite ouside the jurisdiction of the Act, and the appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 November 2022; Ref: scu.140861

S v S-T (Formerly J): CA 25 Nov 1996

The parties had gone through a form of marriage, but the purported husband was many years later revealed to be a female to male transsexual. The marriage had been annulled. There was now an application for ancillary relief.
Held: Ancillary relief might be available to a trans-sexual whose marriage is annulled. The principle of public policy identified was not determinative, but on the facts, and in the light of Mr. J’s conduct, no court could properly have exercised its discretion to grant him ancillary relief.
CS Potter LJ: ‘By s 11(c) of the 1973 Act, a marriage is void if the parties are not respectively male and female. It is plain that the use of the word ‘marriage’ in such a case is no more than convenient shorthand for a purported ceremony of marriage. . . . For the purpose of determining whether a particular human being is of a particular sex, the criteria are biological: see Corbett v Corbett (orse Ashley) [1970] 2 All ER 33 at 48, [1971] P 83 at 106 and Rees v UK (1985) 7 EHRR 429 (App 9532/81), (1986) 9 EHRR 56 and Cossey v UK (1990) 13 EHRR 622. While it may be that the advance of medical science may lead to a shift in the criteria applied by the English courts, it is plain that at present, the position is that laid down in Corbett v Corbett and that, even in jurisdictions which have extended the criteria in the case of transsexuals, a ‘female to male’ transsexual is not generally regarded as having satisfied the criteria of masculinity unless endowed (by surgery or otherwise) with apparent male genitalia. In those circumstances it is also plain that the defendant was well advised not to defend the suit for nullity brought against him by the plaintiff.
However, although a marriage void for the reason that the two parties are of the same sex is not merely a void but a meretricious marriage which cannot give rise to anything remotely matrimonial in character, this has not historically prevented a party from seeking a decree of nullity in respect of it.’
Ward LJ (dissenting) took the view that the principle of public policy that no one should profit from their own wrong applied. He also commented on the fact that they had received fertility treatment together: ‘The apparent ease with which they were able to obtain this treatment without the truth being disclosed or discovered is, for me, one of the puzzling and, I feel bound to add, unsatisfactory features of the case.’ and
‘It is suggested that the Act has made a subtle but perhaps important change to the terminology. What governed Ormrod J’s decision in Corbett’s case, based as it was on ecclesiastical principles, was whether the parties were ‘ a man and a woman’. It may be – but I express no view about it – that the choice ‘male and female’ has left the way open for a future court, relying on the developments of medical knowledge, to place greater emphasis on gender than on sex in deciding whether a person is to be regarded as male or female. There is a body of very respectable academic opinion making that point: see, for example, Cretney and Masson Principles of Family Law, 5th ed (1990) pp 46-48; S Poulter ‘The Definition of marriage in English Law’ (1979) 42 M.L.R. 409, 421-425 and A. Bradney, ‘Transsexuals and the Law’ [1987] Fam. Law 350.’
Sir Brian Neill said: ‘It is not necessary for the purpose of this appeal to consider whether the decision of Ormrod J in Corbett v Corbett … requires re-examination in the light of modern medical advances and in the light of decisions in other jurisdictions, or whether it is distinguishable because the words used in section 11(c) of the Act of 1973 are ‘male’ and ‘female’ which, I suppose, it might be argued, indicate a test of gender rather than sex.’

Judges:

Ward and Potter LJJ and Sir Brian Neill

Citations:

Times 25-Nov-1996, [1998] Fam 103, [1997] 3 WLR 1287

Statutes:

Matrimonial Causes Act 1973 25(1)

Jurisdiction:

England and Wales

Citing:

Applied reluctantly – Corbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .

Cited by:

Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
See Also – J v C and E (a Child) (Void Marriage: Status of Children) CA 15-May-2006
The parties had lived together as a married couple. They had had a child together by artificial insemination. It was then revealed that Mr J was a woman. The parties split up, and Mr J applied for an order for contact with the child.
Held: The . .
Cited – Bellinger v Bellinger CA 17-Jul-2001
Transgender Male may not marry as Female
Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 November 2022; Ref: scu.88963

A, Re (Disclosure of Third Party Information): FD 16 Feb 2012

The mother and father disputed contact. It was known that a third party had made a confidential allegation of sexual abuse against the father. Disclosure was sought. The application was resisted on the basis that the woman’s own health would be damaged.
Held: The order was declined. Jackson J said: ‘in this highly unusual situation it is not possible for information about X’s identity and allegations to be disclosed to the parties. My reasons are these:
(1) I accept the medical evidence about the potentially serious effect of disclosure on X’s health.
(2) The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.
(3) X’s identity and her allegations are inextricably intertwined.
(4) For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.
(5) The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.’

Judges:

Jackson J

Citations:

[2012] EWHC 180 (Fam)

Links:

Bailii

Cited by:

Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Appeal from – In re J (A Child: Disclosure) CA 21-Sep-2012
X had complained in confidence of an alleged assault by the father of A. Social services had wished to include that disclosure in an investigation of J’s care of A. . .
Appeal from – In re X CA 24-Jul-2012
X had made, in confidence, an allegation that she had been abused as a child. The alleged perpetrator was now in another relationship, and with children. X resisted the disclosure of her complaint.
Held: An order was made for disclosure. There . .
Lists of cited by and citing cases may be incomplete.

Family, Information

Updated: 01 November 2022; Ref: scu.460514

Foster v Foster: CA 16 Apr 2003

The marriage had been short, there were no children, both parties were working, and each could support themselves providing themselves with accomodation. The wife had successfully appealed a finding of the district judge for an equal distribution. The husband sought to restore it.
Held: The district judge’s findings were not so wrong (if at all) as to have allowed the appeal by the wife. The principles on such appeals were now the same as for any other appeal. There were no special principle to be applied in short marriages. In considering the contributions made, the court could include not only direct financial contributions, but also the parts played in acquiring and realising assets, and the fact that each had done what they could. The court should always return to and work from the words of the section. Reasons for departing from equal shares were not present here, and the original judgement was restored.

Judges:

Peter Gibson, Chadwick, Hale LJJ

Citations:

[2003] EWCA Civ 565, Times 02-May-2003, Gazette 03-Jul-2003, [2003] 2 FLR 299

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 25(2)(d) 25(2)(f)

Jurisdiction:

England and Wales

Citing:

Applied – Madden v UDC Finance Limited and others PC 30-Oct-1997
(New Zealand) The company issued a debenture to secure the funds for the purchase of machinery, but the debenture was not at first dated. It was submitted that the addition of the dates changed the nature of the loan and was ineffective being . .
Cited – Lambert v Lambert CA 14-Nov-2002
The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
Held: The Act gave . .
Cited – White v White CA 21-Jun-2001
A family had occupied a council house. They purchased the property under the right to buy scheme, with financial assistance from a son, who having paid the mortgage was to allow his parents to live in the house, but then it was to become his. The . .

Cited by:

Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 October 2022; Ref: scu.181822

Flavell v Flavell: CA 3 Oct 1996

The Court considered the approach the Court to those orders for periodical payments following divorce which impose a term on the basis that, by the end of that term, the receiving party will have been able to adjust without undue hardship to the termination of financial dependence upon the paying party.

Judges:

Beldam, Ward LJJ

Citations:

[1997] Fam Law 237, [1996] EWCA Civ 649, [1997] 1 FLR 353, [1977] 1 FCR 332

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 31 October 2022; Ref: scu.140516

Mcgladdery v Mcgladdery: CA 26 Sep 1996

Implementation of ancillary relief order for transfer of shares in family company.

Citations:

[1996] EWCA Civ 613

Jurisdiction:

England and Wales

Citing:

See also – 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 by:

See also – Mcgladdery v Mcgladdery CA 21-Jul-1999
. .
See also – 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 . .
Lists of cited by and citing cases may be incomplete.

Family, Company

Updated: 31 October 2022; Ref: scu.140480

TT v CDS: FD 20 Dec 2019

Claims by the parties for financial remedies following the breakdown of the marriage between the husband and wife.

Judges:

The Honourable Mr Justice Cohen

Citations:

[2019] EWHC 3572 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 31 October 2022; Ref: scu.648713

Bezeliansky v Bezelianskaya: CA 24 Jan 2017

Working out and enforcement of orders for financial provision made at the conclusion of divorce proceedings between wealthy Russian spouses who were residing in England and Wales at the time of their divorce

Judges:

Sir Martin Moore-Bick, McFarlane, David Richards LJJ

Citations:

[2016] EWCA Civ 76

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 31 October 2022; Ref: scu.573604