Category: Family

K v K: FD 21 Apr 2015

F and M had been involved in protracted and bitter litigation on their divorce. They had come each to seek the committal of the other for alleged perjury and otherwise, but those applications were not being pursued.
Held: The father’s remaining applications were dismissed as being attempts to relitigate and as without merit. The court went further and made a Grepe v Loam order.

Judges:

Sir James Munby P FD

Citations:

[2015] EWHC 1064 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Grepe v Loam; Bulteel v Grepe CA 1887
The court was asked for an order restricting the right of a group of litigants be restrained from beginning further court actions without first obtaining the court’s consent, they having been accused of issuing vexatious proceedings.
Held: The . .
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 – Morrow v Morrow 1995
While it may be uncommon, the fact that a claimant stands to inherit whatever may fall into the actual death estate does not preclude an order being made under sections 10 and 2 in her favour. . .
Lists of cited by and citing cases may be incomplete.

Children, Family

Updated: 08 September 2022; Ref: scu.545894

In re DM: FD 29 Sep 2014

Application made by the Council, pursuing the twin jurisdictional routes of the Human Rights Act 1998 and the invocation of the inherent jurisdictional powers of the High Court seeking declaratory relief sanctioning a birth plan in respect of a vulnerable adult.

Citations:

[2014] EWHC 3119 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Human Rights

Updated: 08 September 2022; Ref: scu.537738

N v N (Child Maintenance): FD 22 Jan 2015

Appeal by the wife against an order dismissing her applications for the determination and enforcement of alleged arrears of child maintenance and for variation of a previous child maintenance order. The basis for the dismissal of enforcement of the alleged arrears of child maintenance was that this issue had been decided against the wife in the Courts of Illinois, USA, and that, for the wife to seek to re-litigate them in this jurisdiction offended the principal of res judicata and/or amounted to an abuse of the process of the court. The dismissal of the application for a variation of child maintenance was on the basis that the application was an abuse and should be struck out under Part 4 of the Family Procedure Rules 2010.

Judges:

Bodey J

Citations:

[2015] EWHC 514 (Fam)

Links:

Bailii

Statutes:

Family Procedure Rules 2010 4

Jurisdiction:

England and Wales

Family, Children

Updated: 08 September 2022; Ref: scu.543960

Golubovich v Golubovich: CA 30 Mar 2011

The court considered an application under 51(3)(c) of the 1986 Act to refuse to recognise a foreign decree of divorce.
Held: The appeal was allowed against the non-recognition of a Russian divorce that followed proceedings between Russian parties in which both had taken part. The court emphasised the gravity and undesirability of refusal to recognise a divorce granted by a foreign court of competent jurisdiction, particularly (on the facts of this case) where the foreign state is a member of the Council of Europe (even if not of the EU) and in the situation where the other party has a Part III remedy here.

Judges:

Thorpe, Etherton LJJ, Baron J

Citations:

[2011] EWCA Civ 479

Links:

Bailii

Statutes:

Family Law Act 1986 51(3)(c)

Jurisdiction:

England and Wales

Citing:

Leave – Golubovich v Golubovich CA 3-Mar-2011
. .

Cited by:

Cited – Liaw v Lee (Recognition of Divorce) FD 3-Jun-2015
The applicant sought that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam in favour of the respondent husband be refused recognition in England and Wales.
Held: The application was granted: ‘the husband . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 08 September 2022; Ref: scu.434841

Cartwright v Cartwright and Others: CA 3 Jul 2002

The petitioner former wife sought to make the husband bankrupt on the basis of unpaid maintenance debts. The maintenance was subject to variation by the original foreign court which had made the order.
Held: The order was one recognised under the Act. The fact that the foreign court could still order a variation was critical to the case. That debt could not be used to found a bankruptcy petition. Following Harrop, a foreign maintenance order which was variable could not be enforced in England at common law because it was not final and conclusive.

Judges:

Lord Justice Thorpe, Lord Justice Rix and Lady Justice Arden

Citations:

Times 31-Jul-2002, Gazette 12-Sep-2002, [2002] EWCA Civ 931, [2002] BPIR 895, [2002] 2 FLR 610, [2002] Fam Law 735, [2002] 2 FCR 413

Links:

Bailii

Statutes:

Maintenance Orders (Reciprocal Enforcement) Act 1972 21, Insolvency Rules 1986 (SI 1986 No 1925) 12.3(2)(a)

Jurisdiction:

England and Wales

Family, Insolvency

Updated: 07 September 2022; Ref: scu.174743

Derhalli v Derhalli: ChD 18 Nov 2019

Interpretation of financial remedies order on divorce

Citations:

[2019] EWHC 3286 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Derhalli v Derhalli CA 2-Feb-2021
Second appeal brought by the appellant against an Order in possession proceedings which depended upon the proper interpretation of a Consent Order made in financial remedy proceedings following the breakdown of the marriage between the husband and . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 September 2022; Ref: scu.646164

Russell v Russell: CA 1956

The husband appealed against a judge’s refusal to release him from an undertaking that, unless he was out of work, he would not apply for a downwards variation of an order for maintenance in favour of the wife.
Held: The husband had ‘wholly failed to show any such change in circumstances’ as would warrant release.
In addition: ‘any undertaking given to the court is capable of being discharged by the court whenever it appears to the court that circumstances have arisen which make that course a proper one in the interests of justice.’, and it was ‘always competent’ for the court to release a person from an undertaking as an exercise of its discretion in the interests of justice.

Citations:

[1956] P 283

Jurisdiction:

England and Wales

Cited by:

Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Applied – Kensington Housing Trust v Oliver CA 1997
After the tenant caused flooding of flats underneath her flat. As a result the landlord had obtained an order for possession of it but it had undertaken to the court to offer the tenant specified alternative accommodation at basement or ground floor . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 September 2022; Ref: scu.643867

Ambrosiadou v Coward: CA 12 Apr 2011

The claimant appealed against a refusal to continue an injunction restricting publication of documents filed within divorce ancillary relief proceedings.

Judges:

Lord Neuberger MR, Leveson, Pitchford LJJ

Citations:

[2011] EWCA Civ 409

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Ambrosiadou v Coward QBD 15-Jul-2010
. .

Cited by:

Cited – CTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Lists of cited by and citing cases may be incomplete.

Family, Media

Updated: 06 September 2022; Ref: scu.432646

Grant v The United Kingdom: ECHR 23 May 2006

The applicant, born male, had gender reassignment surgery at the age of 26. When she was approaching her 60th birthday she sought a state pension. This was refused on the grounds that she was, in law, male.
Held: The 2004 Act had not been in force when the claimant began her action. The Court spoke of it, saying: ‘the GRA 2004 has been adopted by parliament since the introduction of this application. It received Royal Assent on July 2004. Under the Act, individuals who satisfy certain criteria are able to apply to a gender recognition panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the state retirement pension are paid according to the acquired gender.’ and ‘the present applicant’s victim status came to an end when the GRA 2004 came into force, thereby providing the applicant with the means on a domestic level to obtain the legal recognition previously denied’.

Judges:

Casaavell P

Citations:

32570/03, [2006] ECHR 548, (2007) 44 EHRR 1

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8 14, Gender Recognition Act 2004

Jurisdiction:

Human Rights

Cited by:

See Also – Grant v The United Kingdom ECHR 14-Sep-2011
Execution of judgment . .
Cited – Carpenter v The Secretary of State for Justice Admn 27-Feb-2015
The claimant, a post-operative male-to-female transsexual person, said that section 3(3) of the 2004 Act was incompatible with her Human rights after refusal of a gender recognition certificate.
Held: The application failed. The provision of . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Discrimination, Family, benefits

Updated: 06 September 2022; Ref: scu.243833

Prest v Prest: FD 28 Jul 2014

W sought H’s committal to prison for failing to pay sums due under the provisions an Order for the payment of periodical payments to the wife for her own benefit and for the benefit of the children of the parties, so accordingly maintenance orders.

Judges:

Moylan J

Citations:

[2014] EWHC 3722 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Prest v Prest and Others CA 16-Feb-2012
. .
See Also – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .

Cited by:

See Also – Prest v Prest FD 29-Jul-2014
. .
See Also – Prest v Prest CA 7-Jul-2015
H appealed against an order made under the 1869 Act as respects arrears under a maintenance order. . .
Lists of cited by and citing cases may be incomplete.

Family, Contempt of Court

Updated: 04 September 2022; Ref: scu.538859

Cooper-Hohn v Hohn: FD 7 Jul 2014

The court considered the extent to which the press should be able to report an account of financial relief proceedings as they unfold on a daily basis and whether there is any restriction on their ability to do so.

Judges:

Mrs Justice Roberts

Citations:

[2014] EWHC 2314 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Media

Updated: 04 September 2022; Ref: scu.535305

Prest v Prest and Others: CA 16 Feb 2012

Citations:

[2012] EWCA Civ 325

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – 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 . .
See Also – Prest v Prest FD 28-Jul-2014
W sought H’s committal to prison for failing to pay sums due under the provisions an Order for the payment of periodical payments to the wife for her own benefit and for the benefit of the children of the parties, so accordingly maintenance orders. . .
See Also – Prest v Prest FD 29-Jul-2014
. .
See Also – Prest v Prest CA 7-Jul-2015
H appealed against an order made under the 1869 Act as respects arrears under a maintenance order. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 04 September 2022; Ref: scu.452192

Gow v Grant: SCS 22 Mar 2011

The parties had lived together, but remained unmaried. The relationship broke down and Ms Gow claimed under the 2006 Act. Mr Grant now appealed.
Held: The appeal succeeded. Mrs Gow’s application for an award of a capital sum was refused. There had been a number of cases which disclosed varying and contradictory approaches to the construction of section 28. In contrast to the scheme in sections 8 to 10 of the 1985 Act as to the rights of a spouse on divorce, the financial provision which the court was permitted to make by section 28 was in the nature of compensation for an imbalance of economic advantage or disadvantage. The court had to have regard to the precise wording of the section, and it must be satisfied that the requirements set out in the section are satisfied on the evidence. The difficulties would be minimised if it was recognised that the objective of the section was limited in scope. The sherriff’s award was not so justified by the facts in this case.

Judges:

Lord Drummond Young, Lord Justice Clerk (Gill), Lord Mackay of Drumadoon

Citations:

[2011] ScotCS CSIH – 25, 2011 Fam LR 50, 2011 GWD 12-280

Links:

Bailii

Statutes:

Family Law (Scotland) Act 2006 28

Cited by:

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

Scotland, Family

Updated: 04 September 2022; Ref: scu.430867

Agrest and Another v Kremen: CA 24 Jan 2011

Application for permission to appeal.

Judges:

Black LJ

Citations:

[2011] EWCA Civ 259

Links:

Bailii

Statutes:

Family and Matrimonial Proceedings Act 1984

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 . .

Cited by:

Leave – 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 . .
See Also – Kremen v Agrest CA 5-Feb-2013
. .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 04 September 2022; Ref: scu.430731

Ward v Ward and Greene: 1980

It was argued that in order for the court fully to flex its powers at final hearing under section 23 and section 24 MCA 1973, it was necessary to issue a separate application under the MWPA 1882 (or the Law of Property Act 1925).

Citations:

[1980] 1 WLR 4

Statutes:

Matrimonial Causes Act 1973 23 24

Jurisdiction:

England and Wales

Cited by:

Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 September 2022; Ref: scu.643872

Thompson v Thompson: CA 1986

An order had been made in 1981 for the home not to be sold until the youngest child had attained the age of 17 ‘or further order’. The wife, who was living in the home with the children, against a judge’s determination that he had no jurisdiction to entertain her subsequent application for an order for its sale prior to that child’s 17th birthday.
Held: Her appeal was allowed. Even though the property adjustment order had been made before section 24A came into force, it provided the vehicle by which the wife could apply for the ‘further order’ which the property adjustment order had envisaged.
Oliver LJ held that orders deferring sale of jointly held property, in the common Mesher form, have an obvious need for scope to adjust them to work out the order. Whilst an application further to delay sale would, he held, ordinarily amount to an impermissible variation, an application for an earlier sale need not do so, and often would not. He instanced examples such as the resident spouse going bankrupt, or wishing to emigrate, or one of the residents becoming incapacitated.

Judges:

Oliver LJ

Citations:

[1986] Fam 38

Statutes:

Matrimonial Causes Act 1973 24A

Jurisdiction:

England and Wales

Cited by:

Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 September 2022; Ref: scu.643870

Taylor v Taylor: CA 1987

An order had been made for the wife to have exclusive occupation of the home and on its sale to receive 40% of the net proceeds. A recorder had acceded to a subsequent application by the husband under section 24A for the immediate sale of the home.
Held: The wife’s appeal against the order for sale succeeded, but the court #expressly rejected her contention that the recorder had had no jurisdiction to make an order under section 24A. She had alleged that it constituted an impermissible variation of such part of the property adjustment order as had conferred on her a right to occupy the home. But the effect of any order under section 24A on the property adjustment order was relevant to the discretionary exercise of the jurisdiction, which the recorder had not properly conducted, rather than to the existence of the jurisdiction conferred by the section when literally construed.

Judges:

Sir John Arnold P, Ralph Gibson LJ

Citations:

[1987] 1 FLR 142

Jurisdiction:

England and Wales

Cited by:

Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 September 2022; Ref: scu.643871

Dinch v Dinch: HL 1987

Consent orders had been made for maintenance and financial provision. The House was now asked whether the former wife could seek a property adjustment order of a type that had been sought in her petition but had not been made by the consent orders.
Held: The House accepted, that: ‘subject to the provisions of that section, once the court has either exercised or declined to exercise its power to make such an order in relation to particular property, no further application for an order in respect of that property at least, whether original or by way of variation of an existing order, can be obtained.’
Lord Oliver of Aylmerton said: ‘The issue between the parties is simply and solely one of the proper construction of the consent order.’ and ‘What is in dispute is whether the consent order in this case was one by which the court either exercised or declined to exercise its jurisdiction under section 24 of the Act to make a property adjustment order.’
Lord Oliver rejected a proposition that ‘as a matter of general principle and in every case, if an application is made for ancillary relief and, whether consensually or otherwise, no order is made, it is necessarily implicit that the application is dismissed.’ The reason for this rejection was: ‘It must, in each case, be a question of construction of the particular order under consideration, and whilst I do not dissent from the proposition that a proper caution should be exercised before reaching a conclusion that will effectively preclude a wife from making a further claim for relief, I do not, for my part, derive much help from consideration of where the burden lies. One has, as it seems to me, simply to look at the order and any admissible material available for its construction, and determine what the court intended, or, in the case of the consent order, what the parties intended, to effect by the order. If the conclusion is that what was intended was a final and conclusive once-for-all financial settlement, either overall or in relation to a particular property, then it must follow that that precludes any further claim to relief in relation to that property.’

Judges:

Lord Oliver of Aylmerton

Citations:

[1987] 1 WLR 252, [1987] 1 All ER 818

Statutes:

Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Cited by:

Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 September 2022; Ref: scu.643869

Birch v Birch: SC 26 Jul 2017

The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her performance until the youngest child attained 18. H objected that the court had no jurisdiction to hear such an application. W’s appeal to the CA was only technically successful – the court did have a limited ability, but there was no reason for its exercise in this case.
Held: (Lord Hughes dissenting) The appeal succeeded. The court did have jurisdiction to hear W’s application, and the case was remitted to HHJ Waller to decide whether the jurisdiction should be exercised.

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes

Citations:

[2017] UKSC 53, [2017] 3 FCR 111, [2017] 2 FLR 1031, [2017] 1 WLR 2959, [2017] WLR(D) 557, [2018] 1 All ER 108, UKSC 2015/0230

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 170522 am Video, SC 150522 pm Video

Statutes:

Matrimonial Causes Act 1973 24A, Matrimonial Homes and Property Act 1981, Matrimonial and Family Proceedings Act 1984

Jurisdiction:

England and Wales

Citing:

Cited – Cutler v Wandsworth Stadium Ltd CA 1945
Morton LJ criticised an application to vary an undertaking given to it: ‘ . . the court does not vary an undertaking given by a litigant. If the litigant has given an undertaking and desires to be released from that undertaking, the application . .
Appeal from – Birch v Birch CA 31-Jul-2015
Application to vary undertaking given in a financial relief application. They had obtained a consent order compromising their claims. W undertook to obtain the release of H from his mortgage covenants. She had been unsuccessful in doing so and . .
Cited – Russell v Russell CA 1956
The husband appealed against a judge’s refusal to release him from an undertaking that, unless he was out of work, he would not apply for a downwards variation of an order for maintenance in favour of the wife.
Held: The husband had ‘wholly . .
Cited – Kensington Housing Trust v Oliver CA 1997
After the tenant caused flooding of flats underneath her flat. As a result the landlord had obtained an order for possession of it but it had undertaken to the court to offer the tenant specified alternative accommodation at basement or ground floor . .
Valuable guidance – Mid Suffolk District Council v Clarke CA 15-Feb-2006
The council had taken proceedings against a farmer whose production of swill, for feeding to pigs, was emitting a smell which local residents found scarcely tolerable. Rather than suffer the making of an injunction against him, the farmer had . .
Cited – Thompson v Thompson CA 1986
An order had been made in 1981 for the home not to be sold until the youngest child had attained the age of 17 ‘or further order’. The wife, who was living in the home with the children, against a judge’s determination that he had no jurisdiction to . .
Cited – Taylor v Taylor CA 1987
An order had been made for the wife to have exclusive occupation of the home and on its sale to receive 40% of the net proceeds. A recorder had acceded to a subsequent application by the husband under section 24A for the immediate sale of the home. . .
Cited – L v L FD 2-May-2006
The husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act. . .
Cited – Dinch v Dinch HL 1987
Consent orders had been made for maintenance and financial provision. The House was now asked whether the former wife could seek a property adjustment order of a type that had been sought in her petition but had not been made by the consent orders. . .
Cited – Westbury v Sampson CA 23-Mar-2001
The claimant was advised to accept a consent order that his wife should pay him a capital sum in the divorce, but by instalments. The wife later successfully applied to have the sum reduced. He sought to claim against his former solicitors for not . .
Cited – Omielan v Omielan CA 30-Jul-1996
H and W entered into a consent order which related in particular to their home, vested in their joint names, in which the wife wished to continue to reside with the children of the family. Part of the order was a property adjustment order: it was, . .
Cited – Minton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Cited – Myerson v Myerson (No 2) CA 1-Apr-2009
The couple had compromised a very substantial ancillary relief claim on divorce, but the husband now said that the value of the shareholdings from which payment was to be made had collapsed.
Held: His appeal was dismissed. The principles for . .
Cited – 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 – Barder v Calouri HL 1987
In divorce proceedings, the husband transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20th February 1985 and on 25th March an appalling tragedy . .
Cited – Ward v Ward and Greene 1980
It was argued that in order for the court fully to flex its powers at final hearing under section 23 and section 24 MCA 1973, it was necessary to issue a separate application under the MWPA 1882 (or the Law of Property Act 1925). . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 September 2022; Ref: scu.591173

Birch v Birch: CA 31 Jul 2015

Application to vary undertaking given in a financial relief application. They had obtained a consent order compromising their claims. W undertook to obtain the release of H from his mortgage covenants. She had been unsuccessful in doing so and sought an order varying her obligation, delaying its performance until the youngest child attained 18. H objected that the court had no power to hear such an objection. W appealed.
Held: There was a jurisdiction to hear W’s application but that it was only a ‘formal’ jurisdiction which existed only ‘technically’; that scope for its exercise was ‘extremely limited indeed’; and that, in the light of what the court had been told, there was no basis for its exercise upon the wife’s application.

Judges:

Gross, Kitchin, McCombe LJJ

Citations:

[2015] EWCA Civ 833, [2015] CN 1500, [2016] 2 FLR 467

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 September 2022; Ref: scu.550940

G v E and Others: FD 21 Dec 2010

(Court of Protection) Baker J awarded costs against a local authority which had been guilty of misconduct which, he held, justified departure from the general rule. He observed: ‘Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made . . It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear.’ and ‘Gone are the days when it is appropriate for a court to dismiss applications for costs on the basis that it all comes out of the same pot’.

Judges:

Baker J

Citations:

[2010] EWHC 3385 (Fam), [2011] Fam Law 473, (2011) 14 CCL Rep 140, [2011] 1 FLR 1566

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
See Also – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .

Cited by:

Appeal from – Manchester City Council v G and Others CA 2-Aug-2011
The Council had been found to have wrongfully deprived the applicant of his liberty. They appealed now against an award of costs made against them.
Held: The appeal failed. The judge the power to depart from the usual order made under rule 157 . .
Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Cited – Re S (A Child) SC 25-Mar-2015
The Court was asked as to the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. It arises in the specific context of a parent’s successful appeal to the . .
Lists of cited by and citing cases may be incomplete.

Costs, Family

Updated: 03 September 2022; Ref: scu.430396

Olafisoye v Olafisoye: FD 19 Feb 2010

Judges:

Holman J

Citations:

[2010] EWHC 3539 (Fam)

Links:

Bailii

Statutes:

Family Law Act 1986

Cited by:

See Also – Olafisoye v Olafisoye FD 28-Jul-2010
The court was asked to consider the recognition here of a foreign divorce.
Held: Holman J said: ‘I observe and stress at the outset the following matters. First, in this case, and probably in all such cases, the issue is very fact specific and . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 September 2022; Ref: scu.430378

C v C: FD 10 Sep 2010

The husband contended that the British County Court had not had jurisdiction to issue a divorce petition against him.

Judges:

Hedley J

Citations:

[2010] EWHC 2676 (Fam), [2011] 2 FLR 19, [2011] Fam Law 682

Links:

Bailii

Jurisdiction:

England and Wales

Family, Jurisdiction

Updated: 03 September 2022; Ref: scu.430386

L v L: FD 2 May 2006

The husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act.
Held: A final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure.
A final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure.
Munby J said: ‘There is an extensive jurisprudence analysing the means by which such applications can be brought before the court . . Much of this jurisprudence is both complex and, particularly where what is sought is to challenge a consent order made by a district judge, confusing and confused. It is, I venture to suggest, yet another area where there is a pressing need for legislative clarification and simplification. As Bracewell J pointed out in Benson v Benson (Deceased) [1996] 1 FLR 692, at 606, Ward J (as he then was) had commented as long as 1989 in B-T v B-T (Divorce: Procedure) [1990] 2 FLR 1 that the various procedures were unsatisfactory and cumbersome, yet, as she dryly observed, ‘the difficulties persist’. That was in 1995. In 2002 in S v S (Ancillary Relief: Consent Order) [2002] EWHC 223 (Fam), [2003] Fam 1, [2002] 1 FLR 992, at para [11], the same judge observed that the law was in ‘a most unsatisfactory state’. It is now 2006 and little has been done, and nothing effective, to remedy matters.’
and . . ‘it suffices to say that where it is sought to challenge a consent order in ancillary relief proceedings it is, or may be, possible to do so by one or more of the following:
(i) a fresh action to set aside the consent order;
(ii) an appeal;
(iii) an application to the judge at first instance’.

Judges:

Munby J

Citations:

[2006] EWHC 956 (Fam), [2008] 1 FLR 26

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 23(1)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – CS v ACS and Another FD 16-Apr-2015
Rule Against Appeal was Ultra Vires
W had applied to have set aside the consent order made on her ancillary relief application accusing the husband of material non-disclosure. She complained that her application to have the order varied had been refused on the ground that her only . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 02 September 2022; Ref: scu.263391

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 courts had been unhelpful to the parties appearing before them. If given access to confidential court documents, a McKenzie friend would be obliged to maintain their confidentiality, and a breach would be a contempt of court. The 2004 Act had relaxed some restrictions on publication of court cases. The Human Rights of the appellant were engaged by this decision. The court was particularly concerned to dispel any suggestion that a McKenzie Friend should not attend a directions hearing. The appeals succeeded.

Judges:

Thorpe, Wall LJ

Citations:

[2005] EWCA Civ 759, Times 27-Jun-2005, [2006] Fam 1, [2005] 3 WLR 1191

Links:

Bailii

Statutes:

Children Act 2004 62, Administration of Justice Act 1960 12, Children Act 1989 97(2), European Convention on Human Rights 8.1, Family Proceedings Rules 1991 4.23

Jurisdiction:

England and Wales

Citing:

Cited – McKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court. The friend’s conduct . .
Cited – In re G (a Child) (Contempt: Committal) CA 10-Apr-2003
The appellant had been made subject to a suspended committal to prison. He was involved with children proceedings, and had published details on the Internet which would make the social worker traceable.
Held: Where a contempt was not committed . .
Cited – 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] . .
Cited – Representation of Children in Family Proceedings pursuant to FPR 1991 rule 9.5 5-Apr-2004
Guidance was given including the following: ‘A litigant in person wishing to have the help of a McKenzie Friend should be allowed to do so unless the judge is satisfied that fairness and the interests of justice do not so require. The presumption in . .
Cited – In re G (a Child) (Litigants in Person) CA 28-Jul-2003
The father of a child involved in a case before the court was acting in person. He wanted to seek advice from the Citizen’s Advice Bureau or the RCJ Personal Support Unit.
Held: The rules needed to be reconsidered so that a litigant in person . .
Cited – Collier v Hicks 7-Jun-1831
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal . .
Cited – Regina v Leicester City Justices, ex parte Barrow CA 1-Aug-1991
The appellant challenged a community charge liability order in which justices had refused an application made on his behalf for a friend to be allowed to sit with him to give advice and assistance. He sought judicial review. The Divisional Court had . .
Cited – 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 . .
Cited – Re G (Chambers Proceedings: McKenzie friend) CA 10-Jul-1991
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature . .
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, . .
Cited – Dombo Beheer BV v The Netherlands ECHR 27-Oct-1993
‘under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-a-vis his . .
Cited – Re H (McKenzie Friend: Pre-Trial Determination) CA 2002
The judge had refused a father’s application to be assisted by a McKenzie friend (a Dr Pelling) on the ground that, having listened to and observed the proposed McKenzie friend, he felt that, with the father on his own, the hearing would be fairer, . .
Cited – Yousef v The Netherlands ECHR 5-Nov-2002
In ‘judicial decisions where the rights under article 8 of parents and of a child are at stake, the child’s rights must be the paramount consideration.’ . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Human Rights

Updated: 02 September 2022; Ref: scu.227088

Richardson v Richardson: CA 8 Feb 2011

Application was made to vary an ancillary relief order on the basis of a Calouri style change of circumstances.

Judges:

Thorpe, Rimer, Munby LLJ

Citations:

[2011] EWCA Civ 79

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 September 2022; Ref: scu.428535

Mountney v Treharne: CA 8 Aug 2002

In ancillary relief proceedings in a divorce, the husband had been ordered to transfer his interest in property to his wife. Before it was put into effect, he became insolvent. The wife and receiver competed for the interest to have been transferred.
Held: Upon the order taking effect (upon the decree absolute), the wife acquired an equitable interest in the property, and the trustee in bankruptcy took subject to that interest. The ratio in Maclurcan was directly applicable and binding, though the correctness of that decision was doubted. It is the order of the court exercising the matrimonial jurisdiction which effects the transfer of the beneficial interest not the subsequent disposition made by or on behalf of the individual who later becomes bankrupt.

Judges:

Lord Justice Aldous, Lord Justice Laws and Lord Justice Jonathan Parker

Citations:

Times 09-Sep-2002, Gazette 10-Oct-2002, [2002] EWCA Civ 1174, [2003] Ch 135, [2002] Fam Law 809, [2002] 3 WLR 1760, [2002] 3 FCR 97, [2002] BPIR 1126, [2002] 2 FLR 930

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(a), Insolvency Act 1986 283(5)

Jurisdiction:

England and Wales

Citing:

Doubted – Maclurcan v Maclurcan CA 1897
A wife sought a divorce petition for her husband’s adultery. On her application for maintenance, a sum of andpound;90 per annum was to be secured for her life on interests of the husband under two wills.
Held: The court confirmed the report . .

Cited by:

Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family, Equity

Updated: 01 September 2022; Ref: scu.174820

Omielan v Omielan: CA 30 Jul 1996

H and W entered into a consent order which related in particular to their home, vested in their joint names, in which the wife wished to continue to reside with the children of the family. Part of the order was a property adjustment order: it was, specifically, a variation of settlement order under which the proportions of the beneficial ownership of the home were recast so as to become 25% for the wife and 75% for the children. But there was also an order for sale of the home under section 24A of the Act. It provided that the home be sold but only on the occurrence of any one of four trigger events, including the event that the wife had cohabited with another man for at least six months. Shortly after the order was made the husband and wife executed a deed of trust under which they declared themselves to be trustees of the home on the above terms. Subsequently, on discovering that the wife had cohabited with another man for at least six months, the husband applied for an order that the sale of the home should take place at once; and the wife countered with an application under section 31(1) and (2)(f) of the Act for the order for sale of the home to be varied so as to postpone it until the youngest child, then aged nine, attained the age of 18.
Held: The husband’s appeal against a judge’s refusal to dismiss the wife’s application for variation was allowed. There were patently no grounds for exercising the jurisdiction to vary the order for sale. Power exists to vary a condition of sale of house on divorce but not the main order.
Thorpe LJ pointed out that the vested beneficial interest of the children in reversion had, once the wife had cohabited for six months, become an interest in possession; and that she was seeking to put it back into reversion.

Judges:

Thorpe, Butler-Sloss and Peter Gibson LJ

Citations:

Times 30-Jul-1996, [1996] 2 FLR 306

Statutes:

Matrimonial Homes and Property Act 1981

Jurisdiction:

England and Wales

Cited by:

Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 September 2022; Ref: scu.84452

Westbury v Sampson: CA 23 Mar 2001

The claimant was advised to accept a consent order that his wife should pay him a capital sum in the divorce, but by instalments. The wife later successfully applied to have the sum reduced. He sought to claim against his former solicitors for not advising him of this risk.
Held: The claim failed. At the time there was no reason to anticipate the later circumstances which led to the reduction, and the loss had not been caused by any failure of the defendants, since he would have faced the same risks whatever order had been made.
Bodey J considered the situations in which a court might re-open an order: ‘The reopening under section 31 of the overall quantum of lump sum orders by instalments, especially when made as part of a package intended to be final (and all the more so when ordered by consent following an agreement) should only be countenanced when the anticipated circumstances have changed very significantly, and/or for cogent reasons rendering it quite unjust or impracticable to hold the payer to the overall quantum of the order originally made.
This formulation gives a little more latitude as regards section 31 of the Matrimonial Causes Act 1973 than do the Barder conditions for the grant of leave to appeal out of time; but that must, I think, follow from the statutory requirements under section 31(7) that the court is to consider all the circumstances.’
Bodey J said that the subsection ‘not only empowers the court to re-timetable / adjust the amounts of individual instalments, but also to vary, suspend or discharge the principal sum itself, provided always that this latter power is used particularly sparingly, given the importance of finality in matters of capital provision’.

Judges:

Bodey J, Schiemann and Sedley LJJ

Citations:

Gazette 17-May-2001, [2001] EWCA Civ 407, [2002] 1 FLR 166, [2002] Fam Law 15, [2001] 2 FCR 210

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 31(3)

Jurisdiction:

England and Wales

Citing:

Cited – Barder v Calouri HL 1987
In divorce proceedings, the husband transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20th February 1985 and on 25th March an appalling tragedy . .

Cited by:

Approved – Shaw v Shaw CA 31-Jul-2002
Thorpe LJ said it was difficult to see how a failure to disclose assets in ancillary relief proceedings could be both substantial and unintentional.
As to Bodey J’s analysis of the power to vary an award of a lump sum in Westbury: ‘I am in . .
Cited – Myerson v Myerson (No 2) CA 1-Apr-2009
The couple had compromised a very substantial ancillary relief claim on divorce, but the husband now said that the value of the shareholdings from which payment was to be made had collapsed.
Held: His appeal was dismissed. The principles for . .
Cited – Birch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Family

Updated: 01 September 2022; Ref: scu.90403

McDonald v Newton or McDonald: SC 26 Jul 2017

‘ The appellant . . seeks a pensions sharing order under section 8(1)(baa) of the 1985 Act on her divorce from her husband (‘Mr McDonald’) on the basis that his pension forms part of the matrimonial property which is taken into account in fixing financial provision. It is a central principle in the 1985 Act relating to such financial provision that ‘the net value of the matrimonial property’ should be shared fairly between the parties to the marriage. This appeal raises the question as to what proportion of a person’s pension rights falls within the definition of ‘matrimonial property’. In particular, is it necessary that the holder of the pension rights contributed to his or her pension during the marriage in order for any part of his or her interest in the pension to be matrimonial property?’
Held: The appeal was allowed: ”period of the membership’ in regulation 4 of the 2000 Regulations refers to the period of the person’s membership of the pension arrangement, whether or not contributions are being made to that arrangement in that period.’

Judges:

Lady Hale, Deputy President, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Hodge

Citations:

[2017] UKSC 52, 2017 GWD 23-395, 2017 Fam LR 78, 2017 SC (UKSC) 142, 2018 SCLR 26, 2017 SLT 837, UKSC 2016/0015

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170511 am Video

Statutes:

Family Law (Scotland) Act 1985, Divorce etc (Pensions) (Scotland) Regulations 1996, Divorce etc (Pensions) (Scotland) Regulations 2000

Jurisdiction:

Scotland

Citing:

Appeal from – McDonald v Flockhart Moffat Newton or McDonald SCS 11-Aug-2015
(Extra Division, Inner House) W claimed for a pension sharing order under section 8(1)(baa) of the Family Law (Scotland) Act 1985. The Court was now asked: ‘what proportion of the value of her husband’s rights or interests in the British Coal Staff . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 August 2022; Ref: scu.591175

Re D (Child): FD 20 Jun 2014

Application by CAFCASS for orders (i) requiring CAFCASS to undertake safeguarding checks regarding the stepfather of two children and (ii) requiring the mother of the children to provide CAFCASS with such information about him as is necessary for those safeguarding checks to be made.

Judges:

Bodey J

Citations:

[2014] EWHC 2376 (Fam), [2014] WLR(D) 312, [2015] 1 WLR 818, [2014] Fam Law 1516, [2015] 1 FLR 991

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Family, Children

Updated: 31 August 2022; Ref: scu.534358

ZM v AM: FD 26 Jun 2014

‘A very young wife was lawfully brought to the United Kingdom, where she was dependent upon her husband and his family, and where she gave birth to a child who has major disabilities. Her husband made little effort to secure for her the immigration status to which she was entitled and when the marriage got into difficulties, she was then sent out of the country with no right to re-enter. The result is that she and her child have been separated for the past three years, a situation that is a wholesale breach of their right to respect for their family life under Article 8 of the European Convention on Human Rights. The only way in which this breach can be remedied is by the mother regaining the ability to enter this country. The nature of the child’s condition means that while his mother remains abroad there is no opportunity for any meaningful relationship between them.’

Judges:

Mr Justice Peter Jackson

Citations:

[2014] EWHC 2110 (Fam)

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Family, Immigration, Human Rights

Updated: 31 August 2022; Ref: scu.534359

BE v DE: FD 24 Jun 2014

Application by a husband, DE for an order requiring the wife, BE to redact a statement of hers. In it she refers to an occasion which the husband maintains was a without prejudice meeting between them

Judges:

Bodey J

Citations:

[2014] EWHC 2318 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Litigation Practice

Updated: 31 August 2022; Ref: scu.534357

McDonald v Flockhart Moffat Newton or McDonald: SCS 11 Aug 2015

(Extra Division, Inner House) W claimed for a pension sharing order under section 8(1)(baa) of the Family Law (Scotland) Act 1985. The Court was now asked: ‘what proportion of the value of her husband’s rights or interests in the British Coal Staff Superannuation Scheme is referable to the period of their marriage which subsisted before the date they separated (see: Section 10(5) of the 1985 Act)?’

Judges:

Lady Smith

Citations:

[2015] ScotCS CSIH – 61, 2015 SLT 587, 2015 GWD 27-473, 2015 Fam LR 112, 2016 SC 118

Links:

Bailii

Statutes:

Family Law (Scotland) Act 1985

Jurisdiction:

Scotland

Cited by:

Appeal from – McDonald v Newton or McDonald SC 26-Jul-2017
‘ The appellant . . seeks a pensions sharing order under section 8(1)(baa) of the 1985 Act on her divorce from her husband (‘Mr McDonald’) on the basis that his pension forms part of the matrimonial property which is taken into account in fixing . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 August 2022; Ref: scu.551725

Barrass v Harding: CA 27 Jun 2000

Elizabeth Butler-Sloss

Judges:

Elizabeth Butler-Sloss D P, Thorpe LJ

Citations:

[2000] EWCA Civ 521, [2000] Fam Law 878, [2001] 1 FLR 138, [2000] WTLR 1071, [2001] 1 FCR 297

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants Act) 1975 2

Jurisdiction:

England and Wales

Wills and Probate, Family

Updated: 31 August 2022; Ref: scu.428030

Quila and Another v Secretary of State for The Home Department: CA 21 Dec 2010

The court was asked whether the ban contained in paragraph 277 of the immigration rules on the entry for settlement of foreign spouses between the ages of 18 and 21 is a lawful way of dealing with the problem of forced marriages.

Judges:

Sedley, Pitchford, Gross LLJ

Citations:

[2011] Fam Law 232, [2010] EWCA Civ 1482

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Quila and Another v Secretary of State for The Home Department Admn 7-Dec-2009
The claimant, a Chilean national, sought review of a decision not to allow him to stay in the UK as the husband of a British national. He said that the decision was based on him being under 21, and that this was discriminatory, and infringed his . .

Cited by:

Appeal from – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Lists of cited by and citing cases may be incomplete.

Family, Immigration

Updated: 31 August 2022; Ref: scu.427373

Re R (Fact Finding): FC 29 May 2015

Judgment as to fact finding hearing to determine the causation and, if I determine all or any of the injuries to A were deliberated inflicted, the identity of the perpetrator of those injuries to A

Judges:

Laura Harris HHJ

Citations:

[2015] EWFC B97

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 29 August 2022; Ref: scu.552130

Re A (A Child): FD 12 Feb 2015

An NHS Trust, sought declarations in relation to Child A, who had been declared clinically dead. That declaration was confirmed by two brain stem tests, the latter taking place, confirming the results of the earlier test and, therefore, supporting the declaration i.e. that brain stem death had occurred at 10.10am on that date. He had choked on a satsuma stem. The request was opposed by the parents.

Judges:

Hayden J

Citations:

[2015] EWHC 443 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Health

Updated: 29 August 2022; Ref: scu.543961

Regina (on the Application of Smith) v Secretary of State for Defence, Secretary of State for Work and Pensions: QBD 26 Jul 2004

The claimant was divorced from her husband, a member of the armed forces, and was to receive a share of his pension. She complained that although he had been able to take his share of the pension early, she had been obliged to wait.
Held: There was no discrimination. The provisions fell within the ambit of article 8, but there was no infringement. The alternative might lead to absurd results. The scheme was clear, and could be allowed for as necessary in the negotiations in the divorce, though in this case no external transfer of the rights was available to the claimant.

Judges:

Mr Justice Wilson

Citations:

[2004] EWHC 1797 (Admin)

Links:

Bailii

Statutes:

Pension Schemes Act 1993 101C(1) 101B, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Cited – Thomas, Regina (on the Application of) v Ministry of Defence Admn 22-May-2008
The claimant had the benefit of a pension sharing order but had not yet reached the age when, under the impugned provision, payment of the pension can be made to her yet her ex-husband is being paid his share notwithstanding, as I understand it, . .
Lists of cited by and citing cases may be incomplete.

Family, Discrimination, Human Rights

Updated: 27 August 2022; Ref: scu.199575

Robert Myrton Cunyngham and Francis Cunyngham, Second and Third Sons of Sir Wm Augustus Cunyngham, Bart and Their Guardians v David Cunyngham, Esq Eldest Son of The Said Sir William: HL 5 Mar 1777

Postnuptial Contract – Reserved Faculty.- Shortly after his marriage, a party executed a postnuptial contract, settling his estate on the heirs male of the marriage, whom failing, on the heirs female of that marriage, reserving power, in case of there being no heirs male, ‘and two, three, or more daughters,’ to settle the estate on either of the daughters. He had no sons, but there were three daughters of the marriage, the two eldest of whom predeceased their father. He afterwards executed a new deed, settling the estate on the second and third sons of the youngest daughter. Held, in the Court of Session, that this deed did not fall within the special powers reserved, and was reducible, as the father’s faculty and powers were at an end. This judgment was affirmed by Lord Mansfield in the House of Lords.

Citations:

[1777] UKHL 2 – Paton – 434

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 27 August 2022; Ref: scu.562006

Ferrari v Romania: ECHR 28 Apr 2015

Citations:

1714/10 – Chamber Judgment, [2015] ECHR 429, [2015] 2 FLR 303, [2015] 3 FCR 296, [2015] Fam Law 764

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

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: 27 August 2022; Ref: scu.546127

A Local Authority v DL and Others: FD 25 Oct 2010

Very elderly parents lived with their adult son. Though they had full capacity, the authority feared that their son had been violent towards them, and sought the assistance of the court.

Judges:

Sir Nicholas Wall P

Citations:

[2010] EWHC 2675 (Fam)

Links:

Bailii

Citing:

Cited – Harbin v Masterman CA 1896
Senior counsel for the unsuccessful appellant asked the Court to note that the five residuary legatees, respondents in the appeal, appeared by four different sets of counsel. He did not, expressly, ask for any particular costs order. Lindley LJ . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 25 August 2022; Ref: scu.425500

T v T: FD 6 Oct 2010

The court heard an application for the discharge of an asset freezing order made in the course of ancillary relief proceedings.
Held: H should have acceded to the open offer made by W for the value to be reduced. His applications failed and the order was varied as offered by W with costs accordingly.

Judges:

Sir Nicholas Wall P

Citations:

[2010] EWHC 2392 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Litigation Practice

Updated: 25 August 2022; Ref: scu.424947

Gourisaria v Gourisaria: CA 13 Aug 2010

The husband appealed against refusal of a stay in his wife’s application for ancillary relief, saying that proceedings in India should be first concluded. Both parties had lived in England since 1986, and there were considerable assets.

Judges:

Mummery, Hughes LJJ

Citations:

[2010] EWCA Civ 1019

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 24 August 2022; Ref: scu.424795

B v B: FD 19 Jun 2009

Judgment on application for ancillary relief

Judges:

Moylan J

Citations:

[2009] EWHC 3422 (Fam), [2010] Fam Law 903, [2010] WTLR 1689, [2010] 2 FLR 887

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 24 August 2022; Ref: scu.423817

Arthur (Non-Molestation Proceedings By A Child): FDNI 30 Sep 2009

The application was brought by Arthur, by his mother and next friend, Sarah, against his father, George. The application related to an incident which is alleged to have occurred on 10 September 2008. On 1 October 2008 the Master granted the applicant leave to proceed ex parte and made a Non-molestation Order.

Judges:

Stephens J

Citations:

[2009] NIFam 19

Links:

Bailii

Statutes:

Family Homes and Domestic Violence (Northern Ireland) Order 1998

Northern Ireland, Family

Updated: 22 August 2022; Ref: scu.421851

Re Z (restraining solicitors from acting): FD 21 Dec 2009

Application by a husband, the respondent in the wife’s divorce proceedings, by which he seeks an order that the wife’s solicitors be debarred from acting any further for her in the divorce or financial matters and that they do remove themselves from the court record.

Judges:

Bodey J

Citations:

[2010] Fam Law 458, [2009] EWHC 3621 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Family

Updated: 22 August 2022; Ref: scu.421350

Imerman v Imerman: FD 11 Dec 2009

Judges:

Moylan J

Citations:

[2009] EWHC 3486 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – 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 . .
See Also – Imerman v Imerman FD 13-Jan-2010
. .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 22 August 2022; Ref: scu.421346

CG v IF: FD 12 May 2010

The husband sought an order under section 13 after the parties had been divorced in Switzerland.

Judges:

Mostyn J

Citations:

[2010] EWHC 1062 (Fam), [2010] Fam Law 906, [2010] 2 FLR 1790

Links:

Bailii

Statutes:

Matrimonial and Family Proceedings Act 1984 13

Jurisdiction:

England and Wales

Cited by:

Cited – Schofield v Schofield CA 2-Feb-2011
The wife appealed against rejection of her claim under the 1984 Act after the parties had been divorced in Germany. The German court had had no jurisdiction to make an award which took account of the husband’s british army pension.
Held: The . .
Criticised – 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: 22 August 2022; Ref: scu.420701

Keegan v Ireland: ECHR 26 May 1994

The mother and father were not married, and their relationship broke up before the birth of the child, and the father was excluded from seeing the baby after the first time in hospital. He sought guardianship, and objected to his exclusion from involvement in the decision that the child should be adopted.
Held: Family ties come into existence where there is a relationship netween a man and a woman which is stable and where they have children even though they are not married.

Citations:

16969/90, [1994] ECHR 18, [1994] 3 FCR 165, 1994) 18 EHRR 342, [1994] ECHR 18

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8

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 – Dawson v Wearmouth HL 4-Feb-1999
The parents were unmarried. The mother had registered the child under her former partner’s surname. The father sought an order that his name be used instead. The mother’s apeal against an order to that effect had succeeded.
Held: The father’s . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 21 August 2022; Ref: scu.165316

Weiner v Weiner: FD 15 Jul 2010

The parties, both Swedish nationals had been habitually resident in England for fifteen years. They had properties in both countries. They disputed the proper forum to resolve their divorce.
Held: Referring to the Regulation, Holman J said: ‘The Article does not say that a court is seised when the document has been lodged and the applicant has effected (or taken a required step to effect) service. It says that the court is seised when the document is lodged, subject to the proviso (which may only be assessed from some later perspective of hindsight) that there has not been a subsequent failure to take the required steps.’

Judges:

Holman J

Citations:

[2010] EWHC 1843 (Fam)

Links:

Bailii

Statutes:

Council Regulation (EC) No. 2201/2003 of 27 November, 2003

Jurisdiction:

England and Wales

Cited by:

Cited – Thum v Thum FC 21-Oct-2016
No abuse of process in service error
The husband claimed that the W was guilty of abuse of process by issuing the divorce petion, but then not serving it for many months in an attempt to gain a tactical jurisdictional advantage under Brussels II.
Held: H’s application was . .
Lists of cited by and citing cases may be incomplete.

Family, European

Updated: 21 August 2022; Ref: scu.421093

Golubovich v Golubovich: CA 21 May 2010

The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The appeal was allowed, and the decree of the Russian court accepted. Thorpe LJ said: ‘where the applicant’s reliance is on subsection 51 (3)(c) the judge’s true task is to conclude whether ‘recognition of the divorce . . would be manifestly contrary to public policy.’ In reaching that conclusion, the judge is not exercising a discretion but forming a proportionate judgment, by which I mean a judgment which gives proper weight to all relevant factors and circumstances.
If a judge reaches the positive conclusion that recognition would be manifestly contrary to public policy, refusal of recognition must follow. It would be quite unrealistic to suggest that the positive conclusion only leads him into a second stage discretionary judgment as to whether or not to refuse recognition.’ As to the Russian Court: ‘the court regarded itself as having a straightforward jurisdiction to dissolve a marriage between two Russian citizens and, absent any treaty with the United Kingdom in this field, was not deterred by the London orders. To refuse recognition of the Moscow decree would disregard our obligation to respect the function of that court.’

Judges:

Lord Neuberger MR, Thorpe, Etherton LJJ

Citations:

[2010] EWCA Civ 831

Links:

Bailii

Statutes:

Family Law Act 1986 53

Jurisdiction:

England and Wales

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 . .
Cited – A v L FD 11-Mar-2010
Sir Mark Potter considered the validity of an Egyptian decree obtained in breach of a restraining injunction upon which the court had relied to preserve the status of marriage.
Held: Recognition was refused on the facts.
Sir Mark Potter P . .
Cited – Gray (orse Formosa) v Formosa CA 1963
Lord Denning MR said: ‘Suffice it to say that I am content to decide this case on the simple basis that the courts of this country are not compelled to recognise the decree of the court of another country when it offends against our ideas of . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Joyce v Joyce and O’Hare FD 1979
The Wife asked the court not to recognise a foreign decree of divorce, saying that it would deprive her of substantial fairness in ancillary relief.
Held: Lane J said: ‘If the courts of this country were empowered to grant ancillary relief on . .
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 – National Navigation Co v Endesa Generacion Sa (The Wadi Sudr) CA 17-Dec-2009
The court was asked whether a judgment of a fellow member state of the European Union ruling against a stay of proceedings on the basis that an arbitration clause was not incorporated in the contract can be relied on as creating an issue estoppel so . .
Cited – Krombach v Bamberski ECFI 30-Mar-2000
Normally a court within the European community could not refuse to enforce a judgment of another members state. It could do so however where the judgment had been obtained by virtue of a procedure which denied the right of a defendant to appear . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 21 August 2022; Ref: scu.420972

Ambrosiadou v Coward: QBD 15 Jul 2010

Citations:

[2010] EWHC 1794 (QB)

Links:

Bailii

Cited by:

Appeal from – Ambrosiadou v Coward CA 12-Apr-2011
The claimant appealed against a refusal to continue an injunction restricting publication of documents filed within divorce ancillary relief proceedings. . .
Lists of cited by and citing cases may be incomplete.

Media, Family

Updated: 21 August 2022; Ref: scu.420950

S v S: FD 22 Sep 2006

The court heard an application for ancillary relief. The judgment had been delayed pending the decision in McFarlane.

Judges:

Singer J

Citations:

[2006] EWHC 2339 (Fam), [2007] 1 FLR 2120, [2007] Fam Law 482, [2007] 2 FCR 762

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Martin-Dye v Martin-Dye CA 25-May-2006
The court was asked how to achieve fairness in ancillary relief proceedings on a divorce as respects pension entitlements. The parties had sufficient to allow a clean break, but the assets mixture included sums invested which would be returned only . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – M v M (short marriage: clean break) FD 5-Apr-2005
. .
Cited – Norris v Norris FD 28-Nov-2002
Claim for lump sum for clean break in ancillary relief case. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 20 August 2022; Ref: scu.408710

O’D v O’D: CA 1976

When considering an application for ancillary relief by a wife, the court should consider the wife’s position, ‘not from the narrow point of ‘need’, but to ascertain her reasonable requirements.’

Judges:

Ormrod LJ

Citations:

[1976] Fam 83

Statutes:

Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Cited by:

Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Mentioned – 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 – Thomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 20 August 2022; Ref: scu.197918

Page v Page: CA 1981

In an ancillary relief application, there was enough capital to provide adequately for both husband and wife.
Held: When considering the needs and obligations of the parties a broad view could be taken: (Ormrod LJ) ‘In a case such as this ‘needs’ can be regarded as equivalent to ‘reasonable requirements’, taking into account the other factors such as age, health, length of marriage and standard of living.’ When assessing the amount of a lump sum provision under section 25 it is not legitimate to take into account the wife’s wish to be in a position to make provision by will for her adult children.

Judges:

Ormrod LJ, Dunn LJ, Brandon LJ

Citations:

(1981) 2 FLR 198

Statutes:

Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Cited by:

Criticised – 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 – Dart v Dart CA 2-Jul-1996
A strictly mathematical approach to calculating ancillary relief can be inappropriate in large sum cases. The statutory jurisdiction has to provide for all applications for ancillary financial relief, from the poverty stricken to the . .
Cited – 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: 20 August 2022; Ref: scu.197916