Category: Family

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

Browne v Browne: CA 1989

The court considered under what circumstances money held in trust for a party could be included within assets to be considered in an application for ancillary relief in family proceedings.
Held: The question is more appropriately expressed as whether the spouse has ‘immediate access to the funds’ of the trust than ‘effective control’ over it.

Judges:

Butler-Sloss LJ

Citations:

[1989] 1 FLR 291

Jurisdiction:

England and Wales

Cited by:

Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – 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, Trusts

Updated: 20 August 2022; Ref: scu.236581

Re Seaford Dec’d: CA 1968

A decree of divorce was made absolute by the court on the same day as, but some hours later than, the husband respondent had died. The court considered the general rule that a judicial act takes effect at the start of the day on which it is made.
Held: The rule did not apply in family proceedings. Willmer LJ said that the rule could not be relied upon so as to confer upon the Court a jurisdiction which it did not have at the time when the order was made. The marriage having been determined by the husband’s death, the Court had no power to dissolve it when the order was made.
Davies LJ rejected the submission that the order took effect at te beginning of the day and said that this legal fiction had no relevance when there was evidence as to the real facts.

Judges:

Willmer LJ, Davies LJ

Citations:

[1968] P 53

Jurisdiction:

England and Wales

Cited by:

Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice, Wills and Probate

Updated: 20 August 2022; Ref: scu.267521

B v B: FD 15 Jan 2010

Judgment following the hearing of the wife’s ancillary relief application.

Judges:

Moylan J

Citations:

[2010] EWHC 193 (Fam), [2010] Fam Law 905, [2010] 2 FLR 1214

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 19 August 2022; Ref: scu.417773

Jessop v Jessop: CA 2 Jan 1992

The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ and Waite J which appears to give great prominence to the requirements of s 3(2) in a case of this kind. On the other side, Mr. Harrap referred us to a further passage in the judgment of Oliver LJ in Re Besterman deceased at p 469, which suggests that no greater prominence is required to be given to that consideration than to any of the others to which the court must have regard. It seems that Re Besterman deceased was not referred to in Moody v. Stevenson. In my view it is unnecessary for us to enter upon any possible conflict between those two decisions and I do not propose to do so.’

Judges:

Nourse LJ, McCowan LJ, Sir John Megaw

Citations:

[1992] 1 FLR 591

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 3(2)

Jurisdiction:

England and Wales

Citing:

Cited – Moody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
Cited – Re Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .

Cited by:

Cited – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 19 August 2022; Ref: scu.196903

Re Besterman, decd: CA 1984

In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. In that calculation, the concept of what is `reasonable’ is nowhere mentioned, although the parties’ financial needs – which have been construed to mean `reasonable requirements’ – constitute one element to be considered. In an application under the Inheritance (Provision for Family and Dependants) Act 1975, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to `have regard’ and the overriding consideration is what is `reasonable’ in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court’s attention.’

Judges:

Oliver LJ

Citations:

[1984] Ch 458

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 2, Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Cited by:

Cited – Moody v Stevenson CA 12-Jul-1991
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no . .
Cited – Jessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
Approved – Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec) ChD 26-Jan-2001
The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable . .
Cited – Moorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Preferred – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
Cited – Barron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 19 August 2022; Ref: scu.196901

Kiana and Another, Regina (on The Application of) v Secretary of State for The Home Department: Admn 20 Apr 2010

The claimants challenge the decision of the Home Secretary to offer the first claimant support in the form of accommodation and subsequently vouchers to purchase food and essential toiletries. The first claimant declined the offer because it would require him to live separately from his partner, the second claimant, and his young daughter.

Judges:

Supperstone QC J

Citations:

[2010] EWHC 1002 (Admin)

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 4

Family, Immigration

Updated: 18 August 2022; Ref: scu.415930

NB v MI: FD 8 Feb 2021

Application for a declaration of non-recognition of a marriage pursuant to the inherent jurisdiction and a petition for nullity – marriage formed in Pakistan under sharia law between the parties. There is no suggestion that the marriage is not valid in Pakistan – whether the applicant had capacity to consent to marriage; and second, if not, whether the marriage should not be recognised by this court, or, alternatively, annulled.

Judges:

Mr Justice Mostyn

Citations:

[2021] EWHC 224 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 18 August 2022; Ref: scu.658115

A (Judgment): ECJ 6 Oct 2015

Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – Regulation (EC) No 2201/2003 – Lis pendens – Articles 16 and 19(1) and (3) – Judicial separation proceedings in a first Member State and divorce proceedings in a second Member State – Jurisdiction of the court first seised – Concept of ‘established’ jurisdiction – Lapse of the first proceedings and commencement of fresh divorce proceedings in the first Member State – Consequences – Time difference between the Member States – Effects on the procedure for seising the courts

Citations:

C-489/14, [2015] EUECJ C-489/14, [2016] 3 WLR 607, [2016] Fam 345, [2016] ILPr 10, [2016] 1 FCR 303, [2015] Fam Law 1466, [2016] 1 FLR 31, [2015] WLR(D) 397, ECLI:EU:C:2015:654

Links:

Bailii, WLRD

Statutes:

Council Regulation (EC) No 2201/2003

Jurisdiction:

European

Family, European

Updated: 18 August 2022; Ref: scu.553085

AB v CD: FD 24 May 2013

The Applicant AB, a lesbian woman aged 37, applied for contact to twin boys, E and F, aged 3. In making that application, she described herself as the boys’ ‘parent’; she ws so defined on the boys’ birth certificates. For the first 17 months of their lives, she fulfilled a parental role, as an integral part of the boys’ family with her then partner, and the mother of the boys, CD. CD opposed the contact application, disputing that AB was the boys’ ‘parent’, and inviting the court to declare in line with her contention that AB is not a parent, under section 55A of the Family Law Act 1986.
Held: The court pointed to the lamentable shortcomings in a clinic identified only as clinic Z which, in the judge’s view, had fallen ‘far short’ of its obligations and which had failed to comply with the conditions of the licence granted to it by the HFEA.
Both partners had signed a Form IC before the treatment, but the statutory consent notices ‘must be in forms WP and PP.’ Moreover, he said, the Form IC ‘did not purport to establish the grant of legal rights’. ‘In the following respects I find that the clinic did not comply with its licence conditions in providing treatment to AB and CD in that:
(i) The clinic had not provided sufficient information to both parties to enable them to make informed decisions about parentage issues at the time of the treatment.
(ii) The clinic did not provide the parties with an opportunity to receive proper counselling about the step proposed prior to treatment.
(iii) Inadequate records have been kept of the treatment and the delivery of the WP/PP forms.’

Judges:

Cobb J

Citations:

[2013] EWHC 1418 (Fam), [2013] 2 FLR 1357

Links:

Bailii

Statutes:

Human Fertilisation and Embryology Act 2008, Human Fertilisation and Embryology Act 1990, Family Law Act 1986 55A

Jurisdiction:

England and Wales

Citing:

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 – In Re R (Parental responsibility: IVF baby); D (A Child), Re HL 12-May-2005
The parents had received IVF treatment together, but had separated before the child was born. The mother resisted an application by the father for a declaration of paternity.
Held: The father’s appeal failed. The Act made statutory provision . .
Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .

Cited by:

Cited – In the matter of the Human Fertilisation and Embryology Act 2008 ; A and Others FD 11-Sep-2015
The court was asked: ‘who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation’
Held: The court pointed again to the failures to keep proper records within several fertility clinics. . .
Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 18 August 2022; Ref: scu.510086

Doe on the Demise of John Birtwhistle v Agnes Vardill: KBD 1835

Quaere, whether a child, born in Scotland, of parents domiciled there, who at the time of his birth were not married, but who afterwards intermarried in Scotland, (neither having in the meantime married any other person,) can take as heir lands of his father in England.

Citations:

[1835] EngR 75, (1835) 2 Cl and Fin 571, (1835) 6 ER 1270

Links:

Commonlii

Jurisdiction:

England and Wales

Wills and Probate, Land, Family

Updated: 16 August 2022; Ref: scu.315583

A (A Child: Wardship: Fact Finding: Domestic Violence): FD 8 May 2015

‘In the context of wardship proceedings initiated by the father of a seven year old boy, it is necessary to resolve disputed allegations of serious domestic violence as well as abusive behaviour towards the child himself.’

Judges:

Pauffley J

Citations:

[2015] EWHC 1598 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Children

Updated: 16 August 2022; Ref: scu.547678

Abuchian v Khojah: FD 29 Sep 2014

Application by the respondent husband to set aside a grant of leave under Part III of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief

Judges:

Mostyn J

Citations:

[2014] EWHC 3411 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 16 August 2022; Ref: scu.538860

Veluppillai v Veluppillai and Others: FD 29 Oct 2015

The parties disputed the wife’s application for ancillary relief on their divorce.
Held: The court severely criticised the husband’s behaviour: ‘ Since the claim was commenced in September 2012 there have been over 30 hearings including four appeals mounted by the husband. This deluge has been caused by the husband’s extreme litigation misconduct. In parallel proceedings concerning a bogus loan asserted by his sister he made threats to kill against the wife and her counsel for which he was committed to prison for contempt. In these ancillary relief proceedings he has been removed from the courtroom on at a least one occasion by security staff. He has been repeatedly warned by judges about his unpleasant menacing conduct in court. On one occasion he assaulted the wife’s counsel and the wife in court for which he was later convicted of assault in the magistrates’ court. He skipped his sentencing hearing and fled abroad from where he has bombarded the court with abusive emails claiming that he has a fatal illness and demanding that the proceedings be adjourned indefinitely. In the course of the proceedings he has entered into a number of transactions designed to defeat the wife’s claims.’

Judges:

Mostyn J

Citations:

[2015] EWHC 3095 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 16 August 2022; Ref: scu.554083

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 had been motivated by extreme malice toward W and his children.
Held: Mostyn J said: ‘For W’s application to succeed the following has to be demonstrated:
i) That the execution of the charge was done by H with the intention of defeating her claim for financial relief. This is presumed against H, and he has to show that he did not bear that intention. See s23(2)(a), and 23(7). The motive does not have to be the dominant motive in the transaction; if it is a subsidiary (but material) motive then that will suffice: see Kemmis v Kemmis Welland and Others Intervening); Lazard Brothers and Co (Jersey) Ltd v Norah Holdings Ltd and Others [1988] 2 FLR 223, [1988] 1 WLR 1307, CA.
ii) That the execution of the charge had the consequence of defeating her claim. This means preventing relief being granted, or reducing the amount of any such relief, or frustrating or impeding the enforcement of any order awarding such relief. See 23(1) and s23(2)(b)
iii) That the court should exercise its discretion to set aside the charge. See s23(2).
iv) However, under s23(6) there is an exception to the general rule that all dispositions are liable to be set aside. The disposition in favour of LF will not be set aside if it can be shown at the time it was made that,
a) it was done for valuable consideration,nd
b) LF acted in relation to it in good faith, and
c) LF was without notice of any intention on the part of H to defeat W’s claim for financial relief.’ The knowledge of LF could extend beyond actual knowledge to constructive knowledge.

Judges:

Mostyn J

Citations:

[2010] EWHC 2571 (Fam), [2011] 2 FLR 478, [2011] Fam Law 567

Links:

Bailii

Statutes:

Matrimonial and Family Proceedings Act 1984 23

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:

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 . .
See Also – Kremen v Agrest CA 5-Feb-2013
. .
Cited – ABC v PM and Another FC 5-Mar-2015
The parties were involved in substantial ancillary relief disputes. W now complained that H had charged his only asset within the jurisdiction, the house in which she lived, to secure his legal fees. She had already asserted a claim against it . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 August 2022; Ref: scu.430388

Re MN (Recognition and Enforcement of Foreign Protective Measures): FD 2010

An elderly woman, MN, habitually resident in California, had been removed from there to Canada and thence to this country in circumstances which, it was said, involved a breach of the terms of Part 3 of an advance directive signed by her.
Held: Hedley J said: ‘It follows that, in my judgment, the question of authority to remove is the key in this case to the question of habitual residence. Habitual residence is an undefined term and in English authorities it is regarded as a question of fact to be determined in the individual circumstances of the case. It is well recognised in English law that the removal of a child from one jurisdiction to another by one parent without the consent of the other is wrongful and is not effective to change habitual residence . . It seems to me that the wrongful removal (in this case without authority under the directive whether because Part 3 is not engaged or the decision was not made in good faith) of an incapacitated adult should have the same consequence and should leave the courts of the country from which she was taken free to take protective measures. Thus in this case were the removal ‘wrongful’, I would hold that MN was habitually resident in California
If, however, the removal were a proper and lawful exercise of authority under the directive, different considerations arise. The position in April 2010 was that MN had been living with her niece in England and Wales on the basis that the niece was providing her with a permanent home. There is no evidence other than that MN is content and well cared for there and indeed may lose or even have lost any clear recollection of living on her own in California. In those circumstances it seems to me most probable that MN will have become habitually resident in England and Wales and this court will be required to accept and exercise a full welfare jurisdiction under the Act pursuant to para 7(1)(a) of Sch 3. Hence my view that authority to remove is the key consideration.’

Judges:

Hedley J

Citations:

[2010] EWHC 1926 (Fam), [2010] COPLR Con Vol 893

Jurisdiction:

England and Wales

Cited by:

Cited – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Family

Updated: 16 August 2022; Ref: scu.525974

M v B and Others: FD 28 Jul 2005

A declaration was sought that a woman of 23 lacked the necessary capacity to marry.
Held: A declaration and injunction was granted to prevent the marriage. Even though there was a substantial disagreement of fact, a part 8 procedure was correct.

Judges:

Sumner J

Citations:

Times 10-Aug-2005, [2005] EWHC 1681 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Family, Health

Updated: 14 August 2022; Ref: scu.408706

Grey v Grey: CA 31 Dec 2009

After bitterly fought ancillary relief proceedings, the husband sought amendment of the order for periodical payments saying that the wife had been in a relationship with another man. She replied that she was not cohabiting and that therefore the order was correct.

Judges:

Thorpe, Wall, Patten LJJ

Citations:

[2010] 2 FLR 795, [2010] Fam Law 440, [2010] 1 FCR 394, [2009] EWCA Civ 1424

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Kimber v Kimber FD 2001
HHJ Tyrer set out a series of considerations as to whether a couple could be said to be cohabiting. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 14 August 2022; Ref: scu.402500

Imerman v Tchenguiz: CA 27 Jan 2010

Application for leave to appeal – granted.

Judges:

Sir David Keene

Citations:

[2010] EWCA Civ 126

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .
See Also – Imerman v Tchenguiz and Others QBD 16-Nov-2009
The claimant sought an ‘unless order’, saying that the defendant had failed to comply with orders for delivery up of documents. Though the order had been agreed, the defendants said that the documents might be needed for an appeal. The claimants . .

Cited by:

Application for Leave – 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: 14 August 2022; Ref: scu.401970

King v The United Kingdom: ECHR 26 Jan 2010

Mr King was accused of being a member of a gang engaged in a conspiracy to import large quantities of ecstasy into Australia. He appealed against extradition saying that this would interfere with his article 8 rights. He had in the United Kingdom two young children and a mother whose health would not allow her to travel to Australia.
Held: The article 8 claim was inadmissible. ‘Mindful of the importance of extradition arrangements between States in the fight against crime (and in particular crime with an international or cross-border dimension), the Court considers that it will only be in exceptional circumstances that an applicant’s private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition . . If the applicant were [eventually] sentenced to imprisonment [in Australia, with the consequent impact on the rest of his family,] his extradition cannot be said to be ‘disproportionate to the legitimate aim served’.’

Judges:

Garlicki P

Citations:

9742/07, [2010] ECHR 164

Links:

Bailii

Statutes:

European Convention on Human Rights

Cited by:

Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Extradition, Family

Updated: 14 August 2022; Ref: scu.401702

Harb v King Fahd Bin Abdul Aziz and Another: CA 9 Nov 2005

The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death of the king, and could not proceed: ‘a claim for financial provision between living spouses or former spouses is not a cause of action under section 1 of the 1934 Act which survives the death of either spouse. Unlike rights of action at common law, the rights enjoyed by spouses or former spouses to make claims for financial relief against each other are exclusively derived from statute, and wholly dependent for their prosecution on the status of the applicant as spouse, or former spouse whose marriage has been dissolved by judicial decree and who has not re-married. ‘ (Wall LJ) It was inappropriate to seek to rule on the jurisdictional issue.

Judges:

Thorpe LJ, Dyson LJ, Wall J

Citations:

Times 21-Nov-2005, [2005] EWCA Civ 1324

Links:

Bailii

Statutes:

Matroimonial Causes Act 1973 23

Jurisdiction:

England and Wales

Citing:

Cited – Mosey v Mosey and Barker 1956
An order had been made against the husband, upon the dissolution of a marriage, securing an annual sum for the maintenance of the wife and their child that was to be agreed upon or referred to the district registrar. The order envisaged contuation . .
Cited – Dipple v Dipple 1942
The court considered the abatement of an application for financial relief in divorce proceedings on the death of one party.
Held: The wife’s claim to secured provision was not a cause of action within the terms of section 1(1). The wife only . .
Cited – Sugden v Sugden CA 1957
The husband died after having had made against him an order to pay maintenance to the two children of the marriage.
Held: The order could not be enforced against his personal representatives after his death. The court explained why a claim . .
Cited – D’Este v D’Este; D(J) v D(S) FD 1973
The husband had obtained a decree absolute of divorce against his wife. The matrimonial home had been conveyed to them jointly. He remarried and applied to the court for variation of the post-nuptial settlement. He died before the application was . .
Cited – Cooke v Gill CCP 11-Jan-1873
What constitutes a cause of action is ‘every fact which is material to be proved to entitle the plaintiff to succeed.’ . .
Cited – Read v Brown CA 1-Dec-1888
Lord Esher defined the phrase ’cause of action’ to mean ‘Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.’ . .
Cited – McMinn v McMinn 2003
A section 27 claim cannot be pursued by a surviving spouse. Black J said: ‘It is clearly established that until an ancillary relief order has been made, an ancillary relief claim is not a cause of action. This appears to be because of the . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
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 – Maconochie v Maconochie 1916
If there was a general rule that the death of a party in a divorce case leads to the abatement of the action, then it cannot be supported. . .
Cited – Re Bramwell (Deceased) and Campbell v Tobin and Another FD 1988
The court considered the effect on an ancillary relief claim where one pary died: ‘In these circumstances, in my judgment, it is clear – as has been recognized and acknowledged without recorded dissent for over 40 years – that in matrimonial . .
Cited – Ainsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
Cited – Letang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 08 August 2022; Ref: scu.234689

W v W (Decree Absolute): FD 31 Mar 1998

The parties, foreign nationals, had married abroad. The came to live here, but H returned in 1996. W sought to pre-empt proceedings abroad by divorcing here getting a decree nisi. She began ancillary relief proceedings, and was awarded maintenance pending suit which was paid, but H failed to co-operate with the ancillary relief application beyond denying that he had capital assets. He gave various undertakings to the court which he did not comply with. He then obtained a religious decree of divorce in New York with a view to remarrying there. He was shown to have flown to New York on Concorde. He requested the court to grant the decree absolute, and W resisted saying that this would make her ancillary relief application more difficult.
Held: W’s appeal was allowed. A court has a discretion to withhold a decree absolute and will in rare circumstances use it where there had been shown a clear detriment in implementing an ancillary relief order. H here had already demonstrated his readiness to obstruct the ancillary relief application. It would not normally be sufficient simply to rely on enforcement difficulties because a party lived abroad.

Judges:

Bracewell J

Citations:

Times 31-Mar-1998

Statutes:

Matrimonial Causes Act 1973 9(2)

Jurisdiction:

England and Wales

Family

Updated: 06 August 2022; Ref: scu.90216

W v W (Physical inter-sex): FD 31 Oct 2000

A party to a marriage had ambiguous physical characteristics. The respondent’s sex at birth was uncertain, and that the parents chose to register her as a boy. As a child and a young woman she dressed as, appeared as, and acted as female. At 17, she finally ran permanently away from home and thereafter lived as a woman before gender re-assignment surgery, and had consummated the marriage as female, but was infertile.
Held: In the circumstances it would be correct to find that she was female for the purposes of testing the validity of the marriage. On the true construction of the Matrimonial Causes Act, greater emphasis could be placed on gender rather than sex.

Judges:

Charles J

Citations:

Times 31-Oct-2000, [2001] Fam 111

Statutes:

Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

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 . .
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: 06 August 2022; Ref: scu.90217

Jelley v Illife: CA 1981

The court referred to the case of In re Beaumont and continued: ‘In considering whether a person is being maintained immediately before the death of the deceased, it is the settled basis or general arrangement between the parties as regards maintenance during the lifetime of the deceased which has to be looked at, not the actual, perhaps fluctuating, variation of it which exists immediately before his or her death. It is, I think, not disputed that a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal illness.’ and ‘Accordingly, I am of opinion that the court has to consider whether the deceased, otherwise than for valuable consideration (and irrespective of the existence of any contract), was in fact making a substantial contribution in money or money’s worth towards the reasonable needs of the plaintiff on a settled basis or arrangement which either was still in force immediately before the deceased’s death or would have lasted until her death but for the approach of death and the consequent inability of either party to continue to carry out the arrangement.’ Griffiths LJ: ‘The words ‘immediately before the death of the deceased’ in section (1)(1)(e) cannot be construed literally as applying to the de facto situation at death, but refer to the general arrangements for maintenance subsisting at the time of death. So that if for example the deceased had been making regular payments to the support of an old friend, the claim would not be defeated if those payments ceased during a terminal illness because the deceased was too ill to make them.’

Judges:

Stephenson LJ, Griffiths LJ

Citations:

[1981] Fam 128, [1981] 2 All ER 29

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1

Jurisdiction:

England and Wales

Citing:

Approved – In re Beaumont, Deceased; Martin v Midland Bank Trust Co Ltd 1980
The words in the section ‘immediately before’ in the context of the maintenance of the claimant by the deceased before the death, were not to be construed literally. The situation was to be viewed as the general arrangements for maintenance in place . .

Cited by:

Cited – Gully v Dix; In re Dix deceased CA 21-Jan-2004
The claimant sought provision from the estate under the Act. She had cohabited with the deceased for many years, but had moved out several months before the death because of her concern for his drunkenness which lead to threats of self harm.
Cited – Witkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 05 August 2022; Ref: scu.196713

Crittenden v Crittenden: CA 12 Apr 1990

The word ‘property’ in the section refers only to property in which one or other of the parties has a beneficial interest, and the words ‘deal with’ relate to acts of dealing, not a lack of dealing with.

Citations:

[1990] 2 FLR 361, Times 12-Apr-1990

Statutes:

Matrimonial Causes Act 1973 37(2)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – McGladdery v McGladdery CA 21-Jul-1999
A husband having been ordered to transfer his shares in a private company to his wife, found that she had breached the undertaking she had given as part of the order, and had used her majority shareholding to dispose of company assets out of the . .
Cited – 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: 05 August 2022; Ref: scu.223623

Moody v Stevenson: CA 12 Jul 1991

The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife’s estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no jurisdiction to make an award arose.
Held: The court considered the application of section 3(2): ‘and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce.’
Waite J said: ‘The objective is that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased’s lifetime by virtue of his or her prospective entitlement under the matrimonial law.’ and ‘In other words the Act of 1975, when stripped down to its barest terms, amounts to a direction to the judge to ask himself in surviving spouses cases: `What would a family judge have ordered for this couple if divorce instead of death had divided them; what is the effect of any other section 3 factors of which I have not taken account already in answering that question; and what, in the light of those two inquiries, am I to make of the reasonableness, when viewed objectively, of the dispositions made by the will and/or intestacy of the deceased?’ If the judge finds those dispositions unreasonable, he will go on to ask himself: `What, in the light of those same inquiries, would be a reasonable provision for me to order for the applicant under section 2?” and ‘The starting point when fixing an appropriate provision under section 2 of the Act will, as already explained, be a consideration of the presumed entitlement of the husband under a notional divorce.’ In this case, the result was an order permitting him to continue to occupy the house.

Judges:

Mustill LJ and Waite J

Citations:

[1992] Ch 486, [1992] 2 WLR 640, [1992] 2 All ER 524, Independent 17-Sep-1991, Times 30-Jul-1991

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 3(2)

Jurisdiction:

England and Wales

Citing:

Cited – Re Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
Cited – In re Styler 1942
. .

Cited by:

Cited – Jessop v Jessop CA 2-Jan-1992
The court considered the provision to be made under the 1975 Act for a surviving spouse: ‘In his argument in this court Mr. Vane relied strongly on s 3(2) and referred us to a recent case in this court, Moody v. Stevenson, a decision of Mustill LJ . .
Cited – Moorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Not preferred – Krubert, Re; Krubert v Davis and Others CA 27-Jun-1996
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse.
Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on . .
Cited – Barron v Woodhead and Another ChD 25-Jun-2008
The claimant sought provision under the 1975 Act from the estate of his deceased wife. . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 05 August 2022; Ref: scu.196902

McKenzie vNutter: ScSf 2007

A cohabiting couple had bought a house in joint names. They intended to live together as a couple in the property, and that they would both sell their own separate houses and apply the proceeds towards the purchase of their new home. In the event only one of them contributed the proceeds of his house towards its purchase and paid the costs associated with maintaining and improving the property. The other continued to reside in her own house, which due to her bad faith she did not sell. She then insisted on a division and sale of the property. Following the state of the title, the expectation was that when the property was sold the proceeds would be paid to the parties equally.
Held: The party who had contributed everything towards its purchase and upkeep was to be entitled to recover the other party’s share of the proceeds, on the ground that she had been unjustly enriched because the condition on which the enrichment was given, due to her bad faith, did not materialise.

Judges:

Sheriff Principal Lockhart

Citations:

2007 SLT (Sh Ct) 17

Jurisdiction:

Scotland

Cited by:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 04 August 2022; Ref: scu.251491

Hashem v Shayif and Another: FD 17 Apr 2009

Judges:

Munby J

Citations:

[2009] EWHC 864 (Fam), [2009] 1 FLR 115, [2009] 2 FLR 896, [2009] Fam Law 665

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .

Cited by:

See Also – Hashem v Shayif and Others CA 22-Jul-2009
. .
Lists of cited by and citing cases may be incomplete.

Costs, Family

Updated: 03 August 2022; Ref: scu.347350

Trippas v Trippas: CA 1973

The court emphasised the flexibility of the statutes providing for ancillary relief.

Judges:

Scarman LJ

Citations:

[1973] Fam 134

Jurisdiction:

England and Wales

Cited by:

Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 July 2022; Ref: scu.198594

Foley v Foley: CA 1981

The court considered the effect on a divorce ancillary relief settlement of a period of cohabitation before the marriage.

Judges:

Eveleigh LJ

Citations:

[1981] 3 WLR 284

Jurisdiction:

England and Wales

Cited by:

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: 31 July 2022; Ref: scu.244873

Ansah v Ansah: CA 1977

Ormrod LJ: ‘Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party: see Craig v Karssen [1943] KB 256, 262. Nevertheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately.’ Such circumstances tend to occur more frequently in family disputes than in other types of litigation: ‘but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare, since any urgent application can be heard inter partes on two days’ notice to the other side . . Circumstances, of course, may arise when prior notice cannot be given to the side; for example, cases where . . a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fairly satisfied that such protection is necessary.’

Judges:

Ormrod LJ, Stamp LJ and Sir John Pennycuick

Citations:

[1977] Fam 138

Jurisdiction:

England and Wales

Cited by:

Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Cited – Jones v Jones CA 19-Mar-1993
H appealed against his sentence of six months imprisonment for contempt of court in breaching a non-molestation order.
Held: Whilst Ansah could not be used to establish a principle that imprisonment for contempt should be a last resort only, . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 31 July 2022; Ref: scu.223625

Masich v Masich: CA 1977

A husband was served at 3.30 pm with an ex parte order requiring him to vacate the matrimonial home at 6 pm the same day.
Held: There was nothing to justify turning the husband out of his home without hearing his side: ‘Such a course should be taken only in exceptional circumstances. Applications by a spouse requiring the other spouse to leave the matrimonial home must be made on notice to the other side, and should never be ex parte. It was desirable that both parties should be present at the hearing.’ Such applications were an abuse of the process of the court, and solicitors who sought such applications in the future might find themselves liable for the costs.

Judges:

Ormrod L, Stamp LJ

Citations:

(1977) Family Law 245

Jurisdiction:

England and Wales

Cited by:

Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 July 2022; Ref: scu.223626

Lake v Lake: CA 1955

Mrs Lake’s answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband’s petition was dismissed, the Commissioner finding that there had been adultery but that it had been condoned. She sought to appeal against the finding of adultery
Held: Her appeal was refused. A party cannot appeal against a judgment when he has no complaint about the order in fact made. A party’s statutory right to appeal is governed by section 27 which allows for an appeal from ‘the whole or any part of any judgment or order’, which means the ‘formal judgment or order.’ It is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court’s judgmentit is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court’s judgment.
Hodson LJ said: ‘This is an attempt by a successful party to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal.’

Judges:

Sir Raymond Evershed MR, Hodson LJ

Citations:

[1955] P 336

Statutes:

Judicature Act 1925 27

Jurisdiction:

England and Wales

Cited by:

Cited – Jones and others v Ceredigion County Council CA 28-Jul-2005
The parties had challenged the respondent’s decision not to provide free transport to school. The judge granted certificates allowing leave to apply direct to the House of Lords on two issues, and to the Court of Appeal on one other. The House later . .
Cited – Office of Communications and Another v Floe Telecom Ltd CA 10-Feb-2009
The court was asked to accept an appeal against not the order made by the tribunal, but the terms of the reasoned judgment.
Held: The appeal was allowed. The Tribunal had made findings which were unnecessary to its judgment, and which were . .
Cited – Secretary of State for Work and Pensions v Morina and Another CA 23-Jul-2007
The Secretary of State had won his case on the substance but wished to challenge parts of the judgement which dealt with jurisdictional points.
Held: The court could hear an appeal by a successful party where there were good reasons for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 31 July 2022; Ref: scu.230066

Hannan and Another v Maxton: CA 8 Jun 2009

The parties had cohabited for several years, and now disputed ownership of properties they owned. The appellant now sought to appeal against the costs order, saying that it did not adequately reflect the fact that she had won.

Judges:

Carnwath, Toulson, Goldring LJJ

Citations:

[2009] EWCA Civ 773, [2009] Fam Law 1031, [2010] 1 FLR 27, [2010] 1 FCR 482

Links:

Bailii

Jurisdiction:

England and Wales

Family, Costs

Updated: 30 July 2022; Ref: scu.365605

H v H: FD 26 Mar 2008

The parties differed as to the valuation of a family restaurant on an ancillary relief application.

Judges:

Moylan J

Citations:

[2008] EWHC 935 (Fam), [2008] 2 FLR 2092, [2008] Fam Law 718

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 30 July 2022; Ref: scu.276698

Hodkin and Another, Regina (on The Application of) v Registrar General of Births, Deaths and Marriages: Admn 19 Dec 2012

The claimants, both scientologists, wanted to be married as the London Church Chapel. The respondent had declined to register it as a place of worship under the 1855 Act.
Held: The claim failed. Scientology is a religion. Counsel for the Registrar General preferred to confine his submissions to arguing that, whether or not Scientology is a religion, the Registrar General was properly entitled to conclude that its ceremonies and practices do not amount to religious worship for the reasons given by the Court of Appeal in Segerdal.

Judges:

Ouseley J

Citations:

[2012] EWHC 3635 (Admin), [2013] WLR(D) 3, [2013] PTSR 875

Links:

Bailii, WLRD

Statutes:

Places of Worship Registration Act 1855 2

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Registrar General, Ex parte Segerdal QBD 1969
The Church of Scientology challenged the refusal of the Registrar General to register its chapel at East Grinstead as a place of meeting for religious worship.
Held: The challenge failed. . .
Cited – Regina v Registrar General, Ex parte Segerdal CA 1970
The Church of Scientology chapel at East Grinstead, Sussex was not a ‘place of meeting for religious worship’ within the meaning of section 2 of the 1855 Act since that would require reverence to a deity. The Church of Scientology’s services did not . .

Cited by:

Appeal from – Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Lists of cited by and citing cases may be incomplete.

Family, Administrative, Ecclesiastical

Updated: 28 July 2022; Ref: scu.468890

Walkden v Walkden: CA 25 Jun 2009

W sought to plead as a Barder event the fact that certain shares had subsequently been sold by H at a substantially higher value than had been anticipated on the making of the financial relief order on the parties’ divorce. Alternatively, she argued, the case as being one of mistake. She sought to have re-opened that financial settlement.
Held: She failed on both points. failed on both grounds.
Thorpe LJ said: ‘The argument advanced is simple; all proceeded on a mistaken premise, namely that the husband’s shares were worth the sum which, although not certain, was on the husband’s evaluation, about 10% of what they fetched 3 months after the order. That contention is unpersuasive for the very simple reason that there was no consensus as to the value of the shares. Throughout years of effort to enhance her share of the assets, the wife had emphasised the potential and the high field of the possible value of the shares. Inevitably the husband had countered that, stressing that a sale was possible anywhere between pounds 1m and pounds 1. This was the area in which the parties and their solicitors most regularly fenced and in reaching a compromise in January 2007 each must have taken a view as to this dominant unknown and each must have been satisfied that the highly speculative value of the shareholding was duly reflected in the compromise.’ There was plainly no Barder event, and the supervening event in the case, the sale of the husband’s shares shortly after the agreement between the parties, involved no dramatic and unexpected turnaround in the company’s performance and was itself neither unforeseen nor unforeseeable.
Wall LJ and Elias LJ agreed.
Elias LJ commented in relation to Barder that: ‘It was plainly foreseeable that an asset of this nature might fluctuate dramatically.’
In relation to the argument based on alleged mistake Elias LJ said:
‘As to the mistake argument, there seem to me to be two inter-related problems. The first is that there never was any agreement as to the value of the shares . . On the contrary, there was a clear recognition that the parties were at odds over the true valuation . .
A second and related problem is that the possibility that the shares may be sold at a higher price was foreseen at the time. In my judgment, that is as much an answer to a claim in mistake as it is to a claim based on the Barder principle. In Edmonds v Edmonds [1990] 2 FLR 202 a consent order was made on the assumption that a house was worth pounds 70k. That figure was identified after the judge had heard expert evidence from the wife. The husband contended that the house was worth significantly more but did not obtain his own expert evaluation. Subsequently the house was sold for pounds 110k and he sought to have the settlement reopened, either on Barder grounds or mistake. The action failed. Butler Sloss LJ, with whose judgment Nourse LJ agreed, noted that the husband had been in a position to influence the valuation but he had chosen not to obtain the relevant evidence. In those circumstances he could not challenge the value placed on the property by the judge. Similarly here; it is true that no value was ever placed on the shares at all either by the parties or by the judge when he made the order in April, but in my view, the wife cannot be in a better position because she was prepared to reach a settlement without any formal figure being assessed at all. The parties took their chance on the value but that is quite different from saying that they were mistaken about it.’

Judges:

Thorpe, Wall, Elias LJJ

Citations:

[2009] EWCA Civ 627, [2009] 3 FCR 25, [2009] Fam Law 1023

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 by:

Cited – S v S FD 29-Apr-2013
W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 28 July 2022; Ref: scu.347421

Leake v Goldsmith: FD 8 May 2009

Judges:

Munby J

Citations:

[2009] EWHC 988 (Fam), [2009] 2 FLR 684

Links:

Bailii

Cited by:

Cited – Rapisarda v Colladon (Irregular Divorces) FC 30-Sep-2014
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Lists of cited by and citing cases may be incomplete.

Family

Updated: 28 July 2022; Ref: scu.347351

Mcfarlane v Mcfarlane: FD 18 Jun 2009

Judges:

Charles J

Citations:

[2009] EWHC 891 (Fam), [2009] Fam Law 1020, [2009] 2 FLR 1322

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
See Also – 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: 28 July 2022; Ref: scu.347355

Seiden v Fularon: CA 17 Dec 2008

The applicant sought leave to appeal against the refusal of a grant of a decree of nullity. The parties had divorced, but he then found that she had already been married and that the purported marriage had been bigamous. He appealed, but the the order was refused because the decree nisi had been made absolute.
Held: Leave was refused, there was no jurisdiction to appeal once the decree nisi had been made absolute. Nevertheles the court hearing the ancillary relief application might refer to the case of S-T v J [1998] Fam 103

Citations:

[2008] EWCA Civ 1548

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 28 July 2022; Ref: scu.347064

Hulton v Hulton: CA 1917

A wife sought to rescind a separation deed for fraudulent misrepresentation. As part of the terms of the deed the litigation documents had been destroyed.
Held: This was not a bar to rescission, because: ‘it was the defendant who was anxious that those letters should be destroyed. I cannot in those circumstances treat the letters as so important to him that there can be no rescission because they cannot be brought back into existence.’

Judges:

Scrutton LJ

Citations:

[1917] 1 KB 813

Jurisdiction:

England and Wales

Cited by:

Cited – Halpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
Lists of cited by and citing cases may be incomplete.

Contract, Family

Updated: 28 July 2022; Ref: scu.253431

Peter v Beblow: 25 Mar 1993

Supreme Court of Canada – Family law – Trusts – Constructive trust – Long-term common law relationship – Unpaid homemaker – Homemaker maintaining and improving property – Whether proprietary link necessary to constructive trust established – Whether consideration to be given to the extent to which the remedy of constructive trust should be applied in terms of amount or proportion.

Citations:

[1993] 1 SCR 980, 1993 CanLII 126 (SCC)
Document, 101 DLR (4th) 621

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 26 July 2022; Ref: scu.640870

PJC v ADC: FD 25 Jun 2009

In ancillary relief proceedings, the single largest relevant asset is a trust fund in which the husband has an interest. One of the questions which arises is whether, and if so to what extent, the husband’s interest under the trust is, within the meaning of section 25(2)(a) of the Matrimonial Causes Act 1973, a ‘financial resource’ which he ‘has or is likely to have in the foreseeable future.’

Judges:

Munby J

Citations:

[2009] EWHC 1491 (Fam), [2009] WTLR 1419, [2009] Fam Law 920

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 26 July 2022; Ref: scu.349065

Horne v Horne: CA 12 Mar 2009

The court considered the effect of the collapse of the financial markets on settlements made on existing family ancillary relief orders.

Judges:

Thorpe, Sullivan LJJ

Citations:

[2009] EWCA Civ 487, [2009] 2 FLR 1031

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 26 July 2022; Ref: scu.346782

Bokor-Ingram v Bokor-Ingram: CA 4 Mar 2009

W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed.

Judges:

Thorpe, Sedley, Wall LJJ

Citations:

[2009] EWCA Civ 412, [2009] 2 FLR 922

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Compagnie Financiere du Pacifique v Peruvian Guano Co CA 1882
Brett LJ defined the test to identify which documents are relevant for disclosure in court proceedings: ‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also . .
Cited – Robinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .

Cited by:

Cited – S v S FD 29-Apr-2013
W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been . .
Cited – Sharland v Sharland CA 10-Feb-2014
Appeal against the order of Sir Hugh Bennett dismissing the application of the appellant wife to resume the hearing of her claim for financial provision following her divorce from the respondent.
Held: (Briggs LJ dissenting) The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 26 July 2022; Ref: scu.346210

SH v KH: SCS 13 Oct 2005

Opinion ‘In this reclaiming motion, the pursuer and reclaimer seeks recall of an interlocutor dated 18 March 2003 by which the Lord Ordinary dismissed her action for declarator that a pretended marriage between the parties at Stirling Registry office on 22 June 1998 was null by reason of lack of consent by the parties to the marriage.’

Judges:

Lord Macfadyen And Lord Marnoch And Lord Penrose

Citations:

[2005] CSIH 70, [2005] ScotCS CSIH – 70

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 26 July 2022; Ref: scu.231077

Mark v Mark: CA 27 Nov 2002

Effect of questions about immigration status on domicile and jurisdiction to issue divorce petition.

Citations:

[2002] EWCA Civ 1837

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Mark v Mark CA 19-Feb-2004
The husband sought to stay divorce proceedings saying that his wife was an illegal overstayer, and could not therefore establish residence either as habitual or as domicile of choice.
Held: Jurisdiction existed. The law since Shah had . .
See Also – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 26 July 2022; Ref: scu.217846

XCC v AA and Another (Rev 3): CoP 26 Jul 2012

The scope of the declarations which may be made by the Court of Protection under section 15 may be narrower than the scope of those which may be made in the High Court

Citations:

[2012] EWHC 2183 (COP), [2012] EWCOP 2183, [2013] 2 All ER 988

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.

Health, Family

Updated: 25 July 2022; Ref: scu.464682

Imerman v Imerman: FD 13 Jan 2010

Judges:

Moylan J

Citations:

[2010] EWHC 64 (Fam), [2010] Fam Law 334, [2010] 2 FLR 802

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Imerman v Imerman FD 11-Dec-2009
. .

Cited by:

Appeal from – 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, Costs

Updated: 25 July 2022; Ref: scu.396651

OS v DS: FD 6 Oct 2004

Description of unusual means of reaching settlement of ancillary financial relief application.

Judges:

Coleridge J

Citations:

[2004] EWHC 2376 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 25 July 2022; Ref: scu.396656

M-D v D: FD 19 Dec 2008

Appeal of a wife petitioner against the judgment and order in respect of her application for ancillary relief.

Judges:

Sir Mark Potter P

Citations:

[2008] EWHC 1929 (Fam), [2009] 1 FLR 810, [2009] 1 FCR 731, [2009] Fam Law 181

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 25 July 2022; Ref: scu.347367