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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Family - From: 1849 To: 1899

This page lists 61 cases, and was prepared on 02 April 2018.


 
 Millward v Littlewood; 6-Nov-1850 - [1850] EngR 814; (1850) 5 Exch 775; (1850) 155 ER 339

 
 The Trusts of Waite's Will Ex parte Pugh; 2-Jul-1852 - [1852] EngR 803; 11 Vict c 96; (1852) 61 ER 428
 
Kelson v Kelson [1853] EngR 74 (B); (1853) 10 Hare 385
13 Jan 1853


Family, Trusts
The statement in a deed of settlement, executed after marriage, was that it was made in consideration of 5s., and divers other good and valuable considerations. Held, that this statement did not, as against strangers to the settlement, amount to evidence that it was not voluntary; and a Defendant claiming against it as a purchaser for valuable consideration, and insisting at the Bar that the settlement was fraudulent and void under the stat. 27 Eliz. c. 4, the Court directed an inquiry whether the settlement was founded on any and what valuable Consideration.
[ Commonlii ]
 
Kelson v Kelson [1853] EngR 240; (1853) 9 Hare App 86; (1853) 68 ER 807
11 Feb 1853


Family, Trusts
A question in the cause was whether a settlement was voluntary, which was expressed to be made for "divers good and valuable considerations." No evidence had been given on the question of consideration ; and the Court was of opinion that the parties ought to have an opportunity of shewing whether there was or was not a valuable consideration for the deed ; and the case was adjourned to Chambers for that purpose.
[ Commonlii ]
 
Kadir Bukhsh Khan v Mussumatain Fusseeh-Oon-Nissa And Moobaruk-Oon-Nissa [1853] EngR 737; (1853) 5 Moo Ind App 413; (1853) 18 ER 952
21 Jun 1853


Family

[ Commonlii ]
 
Forbes v Forbes [1854] EngR 230; (1854) Kay 341; (1854) 69 ER 145
9 Feb 1854


Family
A man cannot have two domicils, at least with reference to the succession to his personal estate.
Legitimate children acquire by birth the domicil of their father.
An infant cannot change his domicil by his own act.
A new domicil cannot be acquired except by intention and act; but, being in itinere to the intended domicil, is a sufficient act for this purpose.
But the strongest intention of abandoning a domicil, and actual abandonment of residence, will not deprive a man of that domicil, unless he has acquired another.
An engagement to serve, and actual service in the Indian Army, under a commission from the East India Company, when the duties of such an appointment necessarily require residence in India for an indefinite period, confers upon the officer an Anglo-Indian domicil ; for the law, in such a case, presumes an intention consistent with his duty, and holds his residence to be animo et facto in India. And this, even if he have property in the country which was his domicil of origin.
An Anglo-Indian is not, for all purposes, an English domicil.
A domiciled Scotchman, having ancestral property but no house in his native country, by accepting a commission, and serving in the Indian Army, abandoned his domicil of origin, and acquired an Anglo-Indian domicil. He afterwards attained the rank of general in the Indian Army, and was made colonel of a regiment, and then left India with the intention of not returning thither, but came to Great Britain, where he lived part of the year in a house which he had built on his estate in Scotland, and part in a hired house in London, under circumstances which, if he had been a single man, would have given him again a Scotch domicil; but his wife and establishment of servants resided constantly at the house in London. Held, that this fact counterbalanced the effect of the other circumstances, and proved that his intention was permanently to reside in England ; and that, therefore, he must be considered to have abandoned his acquired domicil in India, and acquired, by choice, a new one in England.
1 Citers

[ Commonlii ]
 
Harrod v Harrod [1854] EngR 685; (1854) 1 K & J 4; (1854) 69 ER 344
30 Jun 1854
ChD
Sir W Page Wood VC
Family
The contract of marriage is, in its essence, a consent on the part of a man and woman to cohabit with each other, and with each other only. The religious element does not require anything more of the parties; and therefore it is not essential that all the words of the marriage service to be repeated by the man and woman should be actually said ; but, the ceremonies required by law, such as the publication of banns and the like, being complied with, when the hands of the parties are joined together, and the clergyman pronounces them to be man and wife, if they understand that by that act they have agreed to cohabit together and with no other person, they are married.
Therefore, deaf and dumb persons may marry ; and the presumptions in favour of the validity of such a marriage, and of the capacity of the parties to contract it ; and the onus of proof is upon those who would impeach such a marriage.
Everything is presumed in favour of marriage.
If there be no question of mental capacity, the objectionth at a deaf and dumb person did not understand the nature of the contract of marriage which she had been induced to enter into is an objection on the ground of fraud.
Distinction between unsoundness of mind and mere dullness of intellect.
An issue as to sanity is not directed merely upon a suggestion in an answer, but such suggestion must be supported by evidence occasioning a reasonable doubt as to the sanity.
Evidence of witnesses discredited by the inconsistency therewith of their own previous conduct and acts.
[ Commonlii ]
 
Ameer-Oon-Nissa And Others v Moorad-Oon-Nissa And Others [1855] EngR 693; (1855) 6 Moo Ind App 211; (1855) 19 ER 79
20 Jul 1855


Family

[ Commonlii ]

 
 Bremer v Freeman; PC 1857 - (1857) 3 Moo PC 306
 
Stanley v Jackman [1857] EngR 259 (C); (1857) 23 Beav 450
10 Feb 1857


Trusts, Family
A father directed a fund, given to his daughter, to be settled “upon her and her issue,” so that "the same might not be liable or subject to the debts, control or engagements of any husband” whom she might happen to marry during her lifetime. Held, that the settlement ought to give the daughter a power of appointment by will, in default of issue. Form of settlement in such a case.
[ Commonlii ]
 
Campbell v Campbell [1857] EngR 421; (1857) Dea & Sw 285; (1857) 164 ER 578
22 Apr 1857


Ecclesiastical, Family
Consistory Court of London - Practice--Condonation--Delay --As a general rule, the Court will always accede to an application to examine witnesses viva voce; and where such application is intended for the whole cause, the pleadings must be concluded before any of the witnesses are examined. Condonation, or the renewal of conjugal intercourse, requires strict proof. In matrimonial causes there are few reasons for delay.
[ Commonlii ]
 
H v W [1857] EngR 482; (1857) 3 K & J 382; (1857) 69 ER 1157
4 May 1857


Family
Any agreement made before or after marriage, which contemplates a voluntary separation of husband and wife, is void as contrary to the policy of the law. By an ante-nuptial settlement property of the husband was limited during the joint lives of himself and wife, "if she should so long continue to live with him, and should not live separate and apart from him through any fault of her own," in trust for the separate use of the wife, without power of anticipation ; and after the decease of either, "or in the event of the wife living separate and apart from her husband through any such fault,” for the survivor, or for the husband, as the case might be ; and after the death of the survivor, "or in the event of the wife living separate and apart from her husband through any such fault as aforesaid,” for the children of the marriage. Held, that the limitations over upon the separation of the wife and husband were void as contrary to the policy of the law; for such a limitation in favour of the husband, if valid, would be a direct inducement to permit a state of separation, capriciously commenced by the wife, to continue.
1 Citers

[ Commonlii ]
 
Whicker v Hume (1858) 10 HLC 124
1858
HL
Lord Cranworth, Lord Wensleydale
Family
Lord Cranworth said: "in these days, when the tendency of the educated and leisured classes is to become cosmopolitan - if I may use the word - you must look very narrowly into the nature of the residence suggested as a domicil of choice before you deprive a private man of his native domicil." and "By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it."
1 Citers


 
Brook v Brook [1858] EngR 545; (1857-1858) 3 Sm & G 481; (1858) 65 ER 746
17 Apr 1858


Family, International
The law of the country in which a marriage is solemnised cannot give validity to a marriage prohibited by the laws of the country of the domicile and allegiance of the contracting parties.
Therefore, a marriage celebrated during a temporary residence in Denmark between an English widower and the sister of his deceased wife, being null and void by the stat. 5 and 6 Wtn. 4, is not valid, although by the law of Denmark marriages are permitted between persons so related by affinity.
The principle of lex loci contractus examined as to various qualifications and exceptions,
[ Commonlii ]
 
Brookes v Brookes [1858] EngR 1273; (1858) 1 Sw & Tr 326; (1858) 164 ER 750
23 Dec 1858


Family

[ Commonlii ]
 
Mette v Mette (1859) 1 Sw & Tr 416
1859


Family
Where somebody with English domicile purports to marry in another jurisdiction, but the parties lack capacity to marry in English law, the marriage is not recognised in England.
1 Citers


 
Dickens v Dickens [1859] EngR 391; (1859) 2 Sw & Tr 103; (1859) 164 ER 931
9 Mar 1859


Costs, Family
Wife's Costs. - Wife's Petition. - Taxed Costs during Suit - Practice - On taxation of wife's costs in a petition for judicial separation pending suit, the registrar disallowed all costs incurred before actual proceedings taken against the husband, and various items charged for attendance on the wife's father in connection with her case. On cause shewn against a rule nisi for a review of taxation :- The Court affirmed the registrar's taxation as being in accordance with the practice of both the common law and ecclesiastical courts.
[ Commonlii ]
 
Lovett v Lovett [1859] EngR 413; (1859) Johns 118; (1859) 70 ER 362
14 Mar 1859


Family

[ Commonlii ]
 
Yelverton v Yelverton [1859] EngR 1084; (1859) 1 Sw & Tr 574; (1859) 164 ER 866
7 Dec 1859


Family

[ Commonlii ]
 
Hyde v Hyde (1860) LR 1 P & D 130
1860


Family
Parties to a polygamous marriage are not entitled as between themselves to any matrimonial relief under English law.
1 Citers


 
Mahomed Bauker Hoossain Khan Bahadoor v Shurfoon Nissa Begum [1860] EngR 426; (1860) 8 Moo Ind App 136; (1860) 19 ER 481
4 Feb 1860


Family

[ Commonlii ]
 
Heywood v Heywood [1860] EngR 1155; (1860) 29 Beav 9; (1860) 54 ER 527
19 Nov 1860
RC

Family, Trusts

1 Cites

[ Commonlii ]
 
Brooks v Brooks (1861) 9 HL Cas 193
1861
HL

Family

1 Citers


 
Winstone v Winstone and Dyne [1861] EngR 324; (1861) 2 Sw & Tr 246; (1861) 164 ER 989
13 Feb 1861


Family
Petition for Dissolution of marriage - petition for permanent alimony after decree nisi
[ Commonlii ]
 
Seddon v Seddon And Doyle [1862] EngR 275 (B); (1862) 2 Sw & Tr 640
14 Jan 1862


Family

[ Commonlii ]
 
Glennie v Glennie And Bowles [1863] EngR 182; (1863) 3 Sw & Tr 109; (1863) 164 ER 1214
22 Jan 1863


Family

[ Commonlii ]
 
Prideaux v Lonsdale [1863] EngR 363; (1863) 4 Giff 159; (1863) 66 ER 661
16 Mar 1863


Family, Trusts
A settlement made by a woman of her personal property after her engagement to be married set aside at the suit of the husband, although he was told before the marriage that she had executed a settlement affecting her property. It appearing that neither she herself nor her husband was accurately informed of the nature and effect of the trusts of the settlement. Held, that the doctrine of constructive notice of the contents of an instrument was not sufficient to bind the husband on the ground of acquiescence. Suppression of the truth, or misrepresentation of a material fact, will vitiate any contract or gift the validity of which depends upon the truth and accuracy of the representation on which it was made.
[ Commonlii ]
 
Prideaux v Lonsdale [1863] EngR 524; (1863) 1 De G J & S 433; (1863) 46 ER 172
6 May 1863


Family

[ Commonlii ]
 
Yeatman v Yeatman [1864] EngR 154 (A); (1864) 3 Sw & Tr 361
20 Jan 1864


Family

[ Commonlii ]
 
Williams v Williams [1864] EngR 674; (1864) 3 Sw and Tr 547; (1864) 164 ER 1388
26 Jul 1864


Family
Divorce - desertion
[ Commonlii ]

 
 Sheldon v Sheldon (The Queen's Proctor Intervening); 28-Jan-1865 - [1865] EngR 180 (A); (1865) 4 Sw & Tr 75
 
Williams v Williams [1865] EngR 407; (1865) 2 Dr and Sm 378; (1865) 62 ER 665
30 Apr 1865


Family

[ Commonlii ]
 
Knight v Knight [1865] EngR 603; (1865) 4 Sw & Tr 103; (1865) A)
20 Jun 1865


Family

[ Commonlii ]
 
Montefiore v Behrens [1865] EngR 766; (1865) 35 Beav 95; (1865) 55 ER 830
7 Dec 1865


Family

[ Commonlii ]
 
Young v Smith [1865] EngR 772; (1865) 35 Beav 87; (1865) 55 ER 827
9 Dec 1865


Family

[ Commonlii ]
 
In Re Insole [1865] EngR 771; (1865) 35 Beav 92; (1865) 55 ER 829
9 Dec 1865


Family

[ Commonlii ]
 
Frean v Watley [1866] EngR 6; (1866) 4 F & F 1038; (1866) 176 ER 899
1866


Family

[ Commonlii ]
 
White v Stewart [1866] EngR 105; (1866) 35 Beav 304; (1866) A)
17 Feb 1866


Family

[ Commonlii ]
 
Longworth v Yelverton (1867) 5 M (HL) 144
1867
HL
Lord Chancellor Chelmsford
Family, Scotland
A declarator of marriage, even after the death of the other party, is a judgment in rem, and it is conclusive proof that a marriage had been constituted, and is binding on all persons whomsoever.
1 Citers


 
Bazeley v Forder (1868) LR 3 QB 559
1868


Family
A wife's agency of necessity for her husband extended to cover necessities for the children.
1 Citers


 
Bell v Kennedy (1868) LR 1 Sc & Div 307
1868

Lord Westbury, Lord Cairns
Administrative, Family
A domicile of choice in a country is been acquired immediately upon the person's arrival in that country.
Lord Cairns, having held that it was unnecessary for him to examine the various definitions that have been given of the term "domicile", held that the question to be considered was in substance whether the appellant: "had determined to make, and had made, Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country?"
1 Citers



 
 Udny v Udny; HL 1869 - (1869) 1 LR Sc and Div 441; (1869) LR 1 HL 441
 
Aitchison v Dixon (1870) LR 10 Eq Cas 589
1870

Sir William James VC
Family
The testator, William Allan, had been Lord Provost of Edinburgh and unmarried. When 40 he moved to England "for a wife" and "had the good fortune to win the hand of a widow . . of considerable wealth and expectations". They lived for a while in Scotland but Mr Allan suffered from gout and moved to Wyebridge near Buxton for the waters and thereafter to Brighton where he lived with his wife for a further 10 years, having been married for nearly 40 years. It was submitted that Allan had not abandoned his Scottish domicile because the choice of residence was really that of his wife who was the carer and provider of the money for their homes. Held: Sir William James VC said: "The comparative opulence of the wife can make no difference. The residence and home at Brighton were not the less his because he may have deferred, however implicitly, to her wishes. It indeed makes the conclusion in favour of a Brighton domicile irresistible when we find that it was in the highest degree improbable that the wife should ever have voluntarily returned to a Scotch home; that the husband had every motive of interest, of gratitude, and of affection to say to his partner, 'Your country shall be our country, the home of your selection shall be our home.'"
1 Citers


 
Ramamani Ammal (As Mother And Guardian Of Muttu Duraisawmi Taver) v Kulanthai Natchear, And Others [1871] EngR 41; (1871) 14 Moo Ind App 346; (1871) 20 ER 816
22 Jul 1871


Family, Commonwealth
A marriage between a Zemindar of the Malavar class, a sub-division of the Soodra caste, with a woman of the Vellala class of Soodras. Held (1) as to the factum, that a marriage had taken place, and (2) that such a marriage was valid by Hindoo law. In questions of disputed facts, the rule of the Judicial Committee is, that the ordinary legal and reasonable presumptions of facts must not be lost sight of in the trial of Indian cases, however untrustworthy much of the evidence submitted to the Courts below may commonly be; that due weight must be given to the evidence; and that evidence in a particular case must not be rejected from a general distrust of native testimony, nor perjury widely imputed, without some grave grounds to support the putatation, as such a rejection would virtually submit the decision of the rights of others to the suspicion, and not to the deliberate judgment, of the Judge. The entire history of a family must, therefore, not be thrown aside because the evidence of some of the Witnesses is incredible or untrustworthy.
[ Commonlii ]
 
Jogendro Deb Roy Kut v Funindro Deb Roy Kut [1871] EngR 54; (1871) 14 Moo Ind App 367; (1871) 20 ER 824
9 Dec 1871


Family, Commonwealth
A Rajah of an impartible Raj died, leaving children by various Wives and Concubines. A suit for possession of the Raj was brought by one of the Widows, on behalf of an infant, to set aside a summary Award, under Act, No. XIX. of 1841, giving possession, and for possession, of the Raj. This suit involved issues of legitimacy, and the validity of a particular form of marriage of one of the members of the family. The Sudder Dewanny Adawlut decreed in favour of the Plaintiff. Another suit was afterwards brought by a member of the family, who was not a party to the former suit, against the party in possession, which raised substantially the same issue of legitimacy, and a further question of priority to succeed by reason of the superior nature of the marriage of which the Plaintiff was the issue. The Defendant pleaded the decree of the Sudder Court as a bar to the suit. Held that the suit raised a different issue, and, acting upon Kanhya Loll v. Radha Churn (7 W.R., 338) that the decree in a former suit was not a judgment in rem, but a judgment inter partes.
[ Commonlii ]

 
 Mussumat Bebee Bachun v Sheikh Hamid Hossein And Mussumat Durjahun; And Mussumat Bebee Bachun, Mussumat Bebee Sogra And Moulvie Abdool Azeez v Sheikh Hamid Hossein And Mussumat Durjahun; 13-Dec-1871 - [1871] EngR 57; (1871) 14 Moo Ind App 377; (1871) 20 ER 828
 
Mussumat Anundee Koonwur, Widow Of Gunput Lal v Khedoo Lal,-Respondent; Mussumat Mankee Koonwur v Khedo Lal; Mussumat Poonpoon Koonwur v Khedoo Lal [1872] EngR 6; (1872) 14 Moo Ind App 412; (1872) 20 ER 840
19 Jan 1872


Family, Commonwealth
Cesser of commenality is strong, though not conclusive, evidence of partition of joint family property, and removes or qualifies the presumption of Hindoo Law, that the acquisition of property by a member of the family is made by means of the joint estate, but the onus probandi lies on a member of the family setting up separation to prove that the property was acquired by himself after separation, and not from estate of the joint family.
[ Commonlii ]
 
William Hay (Commonly Called Lord William Hay v William Gordon [1872] EngR 32; (1872) 9 Moo PC NS 102; (1872) 17 ER 452
30 Jul 1872
PC

Commonwealth, Family

[ Commonlii ]

 
 The London Chartered Bank of Australia v William George Lempriere And Others; 6-Feb-1873 - [1873] EngR 3; (1873) 9 Moo PC NS 426; (1873) 17 ER 574

 
 Sri Gajapathi Nilamani Patta Maha Devi Garu v Sri Gajapathi Radhamani Patta Maha Devi Garu; PC 3-Jul-1877 - [1877] UKPC 30

 
 Sottomayor v De Barros (No. 2); 1879 - (1879) PD 94

 
 Sastry Velaider Aronegary v Sembecutty Vaigalie; 1881 - (1881) 6 App Cas 364
 
Durham v Durham, Hunter v Edney (Orse Hunter), Cannon v Smalley (Orse Cannon) [1885] 10 PD 10; 1 TLR 338
1885

Sir James Hannen P
Family, Health
The burden of establishing that a party to a marriage had lacked capacity through insanity, lay on the party making the assertion. The court is to decide whether the respondent was capable of understanding the nature of the contract, and the duties and responsibilities created, and was free of morbid delusions on the subject.
Sir James Hannen P said that marriage involves "protection on the part of the man, and submission on the part of the woman"
1 Citers


 
Hyde v Hyde and Woodmansee [1886] LR1 P and D 130
1886

Lord Penzance
Family
Lord Penzance defined marriage: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."
1 Citers


 
In Re Grove (1888) 40 Ch D 216
1888

Lopes LJ
Family, Litigation Practice
Lopes LJ discussed how a court should determine a party's intention: "in order to determine a person's intention at a given time, you may regard not only conduct and acts before and at the time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency."
1 Citers



 
 Nunneley v Nunneley; 1890 - [1890] 15 App Cas 186
 
In re King's Trust (1892) 29 LR Ir 401
1892

Lord Porter MR
Family, Trusts
Lord Porter said it was "little short of disgraceful to our jurisprudence" that in reference to a rule professedly founded on public policy there should be a distinction between a gift of an annuity for life coupled with a proviso for cessation if the donee married (treated as giving a life interest) and a gift until he marries (treated as giving an interest only until marriage).
1 Citers


 
Maclurcan v Maclurcan (1897) 77 LT 474
1897
CA
Lindley LJ
Family
A wife sought a divorce petition for her husband’s adultery. On her application for maintenance, a sum of £90 per annum was to be secured for her life on interests of the husband under two wills. Held: The court confirmed the report and directed that: "The payment of £90 per annum, payable monthly, be secured to petitioner for her life on the share of residue taken by respondent under the two wills referred to in the said report, and that a deed of assignment of respondent’s interest on the terms mentioned in the said report be drawn as agreed between the parties, or settled by a conveyancing counsel of the Chancery Division of the court”.
The husband later claimed he was being put to needless expense in formally completing a security. The wife was content to continue to receive the monthly payments and did not press for the completion of any security. Thereafter, the parties agreed changes to the amount of maintenance payable by the husband, and eventually the wife executed a deed releasing the annuity and agreeing not to enforce the court order. Subsequently, the wife applied to set aside the release and for an order that the husband pay the annuity of £90 per annum directed by the original order. The judge at first instance concluded that since the original order had not been perfected by the completion of the security the wife’s release was ineffective, and he ordered the husband to carry out the terms of the original order and to execute a deed of security. The husband appealed, contending that the wife was in a position to release the annuity as soon as the order was made. For the wife it was contended that until the security was perfected the wife had nothing to release. Held: The husband’s appeal succeeded. An order for periodical payments to be secured on identified property, with provision for the security to be completed by the execution of a deed in appropriate form, has the effect of creating an immediate equitable charge over the property pending the completion of the security in accordance with the order.
Lindley LJ began by considering under what jurisdiction the original order was made. He concluded that it was made under section 32 of the Divorce and Matrimonial Causes Act 1857, in the following terms: “The court may, if it shall think fit, on any [decree of dissolution of marriage] order that the husband shall, to the satisfaction of the court secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable, and for that purpose may refer it to any one of the conveyancing counsel to the court of Chancery to settle and approve of a proper deed or instrument to be executed by all necessary parties; ….” He went on: “The moment this order was made the wife had an equitable charge on the property which could be enforced at once.”
Chitty LJ agreed: “The charge is given by the order, and the deed is only for the purpose of carrying out the order.”
1 Citers



 
 Moss v Moss (otherwise Archer); 1897 - [1897] P 263
 
Bateman v Bateman (1898) 78 LT 472
1898


Family
An Ecclesiastical Court has power to order payment of alimony pending suit.
1 Citers


 
Sickert v Sickert [1899] P 272
1899

Gorell Barnes J
Family
The court discussed the doctrine of constructive desertion in family law: "In most cases of desertion the guilty party actually leaves the other but it is not always or necessarily the guilty party who leaves the matrimonial home. In my opinion, the party who intends bringing the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of desertion. There is no substantial difference between the case of a husband who intends to put an end to the state of cohabitation, and does so by leaving his wife, and that of a husband who with the like intent obliges his wife to separate from him."
1 Citers


 
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