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Family - From: 1930 To: 1959

This page lists 63 cases, and was prepared on 02 April 2018.


 
 In re Hagger; Freeman v Arscott; ChD 1930 - [1930] 2 Ch 190; [1930] 99 LJ Ch 492; [1930] 143 LT 610
 
Berthiaume v Dastous [1930] AC 79
1930
HL
Lord Dunedin
Family
Under the rules of private international law the form of marriage is generally governed by the local law of the place of celebration.
Lord Dunedin said: "If there is one question better settled than any other in international law, it is that as regards marriage - putting aside the question of capacity - locus regit actum. If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter where the proceedings or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicile of one or other of the spouses. If the so called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceedings is conducted in the place of the parties domicile would be considered a good marriage. These propositions are too well fixed to need much quotation."
1 Citers


 
Gotliffe v Edelston [1930] 2 KB 378
1930


Family
McCardie said that: "Husbands and wives have their individual outlooks. They may belong to different political parties, to different schools of thought. A wife may be counsel in the courts against her husband. A husband may be counsel against his wife. Each has a separate intellectual life and activities. Moreover, as Lord Bryce has said, the modern notion is that it is one's right to assert one's own individuality: see Lord Bryce's Studies in History and Jurisprudence, vol. ii., pp. 459, 463. We are probably completing the transition from the family to the personal epoch of woman."
1 Citers


 
Atorney-General v Yule and Mercantile Bank of India (1931) 145 LT 9
1931


Family
The court considered the shifting burden of proof when the question arose of an intention to change a domicile of origin.
1 Citers


 
J and E (Care, Placement) [2015] EWFC B50
11 Jul 1931
FC

Family

[ Bailii ]
 
Boldrini v Boldrini and Martini [1932] P 9
1932
CA
Lawrence LJ
Family
An alien may acquire a domicile of choice in this country even though he might be required to leave at any time by executive action with no right of appeal.
Lawrence LJ said: "What had to be shown is that when the petitioner presented his petition he was residing in England with a fixed intention of making England his home. Such an intention may be proved notwithstanding the existence of statutory regulations imposing certain restrictions upon aliens which they have to comply with so long as they remain in this country; an alien may choose to live here permanently and subject himself to those restrictions. In my opinion the provisions of the Aliens' Restriction Act, 1914, and the Aliens' Order, 1920, did not preclude the petitioner from acquiring a domicile of choice in England."
1 Citers



 
 Kelly (orse Hyams) v Kelly; 1932 - [1932] 49 TLR 99

 
 Wahl v Wahl; 1932 - [1932] 147 LT 382
 
Abraham v Attorney-General [1934] P 17
1934


Family

1 Citers


 
Fender v St. John-Mildmay [1937] AC 1
1937

Lord Atkin, Lord Thankerton
Family
The general rule against becoming engaged whilst still married does not apply when a decree nisi has been pronounced. However, Lord Atkin said: "There is real substance in the objection that such a promise tends to produce conduct which violates the solemn obligations of married life." Lord Thankerton: "There can be little question as to the proper function of the Courts in questions of public policy. Their duty is to expound, and not to expand such a policy."
1 Citers



 
 Yerkey v Jones; 1939 - (1939) 63 CLR 649

 
 The Honourable John E Brownlee v Vivian Macmillan; PC 4-Jun-1940 - [1940] UKPC 36; [1940] AC 802
 
Firth v Firth Unreported, 25 June 1941
25 Jun 1941

Langton J
Family
Langton J said: "[Counsel] said that it was a matter of common knowledge that young people, for a period, at any rate, after their marriage had intercourse only with the intervention of contraceptives. On this part of his common knowledge I can only offer him my sympathy. It is no part of my common knowledge and I decline to accept it as a matter of common knowledge at all."
1 Citers


 
Dipple v Dipple [1942] P 64
1942

Hodson J
Family
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 had the hope that the court would in its discretion order a secured provision. She had no right to it at all until the order was actually made, and hence she had no cause of action at his death. As to s190: "Sect. 190 of the Judicature Act, 1925, provides that the court may, if it thinks fit, order the husband to secure to the wife such a sum of money as the court may deem to be reasonable. The wife thus has merely the right to ask the court to exercise discretionary powers in her favour. This seems to me to be an essentially different thing from her having an enforceable claim against her husband."
Law Reform (Miscellaneous Provisions) Act 1934 1(1) - Supreme Court of Judicature (Consolidation) Act 1925 190
1 Citers



 
 C v C; 1942 - [1942] NZLR 356
 
In re Styler (1942) Ch 387
1942


Family

1 Citers


 
Blunt v Blunt [1943] AC 517
1943

Viscount Simon LC
Family
Viscount Simon considered the variety of options available to a court faced with an allegation of adultery: "I would add a fifth (consideration) of a more general character, which must, indeed, be regarded as of primary importance, namely, the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down."
1 Citers


 
May v May [1943] 2 All ER 146
1943


Family
An alien may acquire a domicile of choice in this country even though he might be required to leave at any time by executive action with no right of appeal.
1 Citers



 
 Cruh v Cruh; 1945 - [1945] 2 All ER 545
 
Howard v Howard [1945] P 1
1945
CA
Lord Greene MR
Family
Lord Greene MR said: "In my opinion there is no jurisdiction in the Divorce Court to make an order which will leave the husband in a state of starvation (to use rather picturesque language) with a view to putting pressure on trustees to exercise their discretion in a way in which they would not have exercised it but for that pressure. Under discretionary trusts (as, indeed, under this trust) other persons are potential beneficiaries. In many such trusts the range of potential beneficiaries is a very wide one. Here it extends to any future wife that the husband may marry and the children of any future marriage. The settlement has not been varied in that respect. On what ground should pressure be put upon the trustees to exercise their discretion in such a way as to pay to the husband, in order that he may pay maintenance to his wife, sums which in their discretion they would not otherwise have paid to him? It seems to me that such an order is as bad as an order on a man to pay a sum far in excess of what he could be ordered to pay out of his own means merely to put pressure on a rich relation to support him. That is not within the scope of s. 190 of the Act. What has to be looked at is the means of the husband, and by "means" is meant what he is in fact getting or can fairly be assumed to be likely to get. I must not be misunderstood. It is, of course, legitimate (as was done in this case) to treat a voluntary allowance as something which the court can, in proper circumstances, infer will be likely to continue, and make an order on that basis. If and when the allowance is cut off, the husband can come back and apply to have the order modified. Similarly, in the case of a discretionary trust, if the court finds that the husband is in fact receiving regular payments under such a trust it is perfectly entitled to make an order on the footing that those payments will in all probability continue, leaving it to the husband to come back to the court if at some future date they are stopped. But in this case the trustees have exercised their discretion so that the husband will, as frequently happens under these discretionary trusts, get nothing. Trustees, for very good reasons, often do not give money to the husband and the only object of this order, so we are told, was to induce the trustees to change their decision as to the proper disposition and administration of this trust income. The trustees, if they were well advised, would say: "We have exercised our discretion and we refuse "to change it. It is only when circumstances alter that we "shall take them into account and exercise our discretion in "a way suitable to the altered circumstances as we can see them." If they were to do that the husband would be left with a voluntary allowance of 150l. out of which he has to pay 100l. to the wife, who has remarried.
In my opinion the practice, if it be a practice, indirectly to put pressure on trustees in this sort of way to commit a breach of their duty and to exercise their discretion in a way contrary to what they desire, is wrong . ."
1 Citers


 
Re Ames' Settlement; Dinwiddy v Ames [1946] 1 All ER 689; [1946] Ch 217; 115 LJ Ch 344; 175 LT 222; 62 TLR 300; 90 Sol Jo 188
1946


Trusts, Family
The intended husband's father in 1908 settled a sum payable within one year after the marriage on standard marriage settlement trusts. The marriage took pace, but was several years lter annulled. On the wife's petition. After the settlor's later death, the husband continued to receive the sums under the settlement. Held; The marriage having been annulled, there had been a total failure of consideration, the trusts were void ab intio, and all the sums were held un trust for the settlor's executors.

 
Bandail v Bandail [1946] P. 122
1946


Family
Remedies available to parties to a polygamous marriage

 
Re Inns, Inns v Wallace [1947] 2 All ER 308
1947

Wynn-Parry J
Family

1 Citers


 
Horton v Horton [1947] 2 All ER 871
1947
HL
Lord Jowitt LC
Family
The couple were Roman Catholics who had married during the war. They failed to consummate the marriage at first, and were then separated. H now sought to have the marriage annulled on the basis of W's refusal to consummate the marrieage. Held: The petition failed on the facts: a "wilful refusal" is an unjustified, settled and definite decision and taking into account the whole history of the marriage.

 
Watt (or Thomas) v Thomas [1947] AC 484; 1947 SC (HL) 45
1947
HL
MacMillan L, Lord Thankerton, Viscount Simon
Administrative, Litigation Practice, Family
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: "(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."
. . And: "So far as the case stands on paper it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of profound importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong.
. .If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunciated in this House applies and brings the balance down on the side of the trial judge."
Lord Thankerton sad: "It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves;"
Viscount Simon said: "If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight."
Viscount Simon said: "an appellate Court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given".
1 Cites

1 Citers


 
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
1948
CA
Asquith LJ
Family, Litigation Practice
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge's decision had been made by an exercise of his discretion. Held: Asquith LJ said: "It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."
1 Citers


 
Nugent-Head v Jacob [1948] AC 321
1948
HL
Viscount Simons
Family, Income Tax
A wife was held still to be "living with her husband" who had been absent on military service for more than three years because there had been "no rupture of matrimonial relations."
Income Tax Act 1918
1 Citers


 
Baxter v Baxter [1948] AC 274
1948
HL
Viscount Jowitt LC
Family
The House considered whether a wife who insisted that her husband always used a condom was thereby guilty of a wilful refusal to consummate the marriage within the meaning of section 7(1)(a). Held: She was not, for a marriage may be consummated although artificial methods of contraception are used. As to Firth v Firth, Viscount Jowitt LC said: "Long before the passing of the Matrimonial Causes Act 1937, it was a matter of common knowledge that reputable clinics had come into existence for the purpose of advising spouses on what is popularly called birth control, and (with all respect to a dictum to the opposite effect by the late Langton J in the unreported case of Firth v Firth) it is also a matter of common knowledge that many young married couples agree to take contraceptive precautions in the early days of married life."
Matrimonial Causes Act 1937
1 Cites

1 Citers


 
Zanelli v Zanelli (1948) 64 TLR 556
1948


Family
Acquisition of domicile of choice despite immigration status.
1 Citers


 
Beeken v Beeken [1948] P 302
1948


Family
The separation element in desertion may result from a period of compulsory detention.
1 Citers



 
 Brock v Wollams; CA 1949 - [1949] 2 KB 388

 
 Labacianskas v Labacianskas; SCS 15-Feb-1949 - [1949] ScotCS CSIH_2
 
Lennie v Lennie [1949] UKHL 4; 1949 SLT (Notes) 58; 1950 SC (HL) 1; 1950 SLT 22; 65 TLR 763; [1949] WN 480; 1949 SLT (Notes) 43
1 Dec 1949
HL

Scotland, Family

Divorce (Scotland) Act 1938
[ Bailii ]
 
Davis v Davis [1950] P 125
1950


Family

1 Citers


 
Cackett v Cackett [1950] 1 All ER 677
1950

Hodson J
Family



 
 Bater v Bater; CA 1950 - [1950] 2 All ER 458

 
 Preston-Jones v Preston-Jones; HL 1951 - [1951] AC 391; [1951] 1 All ER 124

 
 Combe v Combe; CA 1951 - [1951] 2 KB 215
 
Bater v Bater [1951] P 35
1951
CA
Bucknill LJ, Somervell LJ, Denning LJ
Evidence, Family
The wife petitioned for divorce, alleging cruelty. Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: "A high standard of proof" was required because of the importance of such a case to the parties and the community. although it was a misdirection for a judge in matrimonial proceedings to say that the criminal standard of proof applied to allegations of cruelty it was correct to say that they had to be proved beyond reasonable doubt.
Denning LJ: "The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard.
As Best CJ and many other great judges have said, 'in proportion as the crime is enormous, so ought the proof to be clear'. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter."
1 Cites

1 Citers



 
 Pugh v Pugh; 1951 - [1951] P 482

 
 In Re Duranceau; 1952 - [1952] 3 DLR 714
 
Bendall v McWhirter [1952] 2 QB 466
1952
CA
Denning LJ, Somervell and Romer LLJ
Family, Land
The trustee in the husband's bankrupty, by virtue of his statutory position, was subject to the same special restriction as would prevent the husband himself from evicting his wife.
The deserted wife had a personal licence to occupy the former matrimonial home that was valid as against the trustee in bankruptcy of her husband. Every subordinate interest perishes with the superior interest upon which it is dependent.
Denning LJ (dissenting) said that the wife had an equity which was binding on the trustee.
1 Citers


 
Bennett v Bennett [1952] 1 KB 249
1952
CA
Somervell LJ
Family
The wife sued for arrears of maintenance payments payable under a deed in consideration for which the wife covenanted not to proceed with the prayers in the petition for maintenance, to consent to their being dismissed, and not to present any further petition for maintenance. The court was asked whether the whole or main consideration moving from the plaintiff wife was a promise or promises purporting to oust the jurisdiction of the court. Held: Because the agreement was of no effect, it was not consideration for her husband's agreement and her claim failed. Somervell LJ said: "The point here is that the consideration moving from her was a promise not to exercise her right to apply to the court." That being the sole or main consideration the covenant sought to be enforced by the wife was void and unenforceable.
1 Citers



 
 Hawes v Evenden; CA 1953 - [1953] 1 WLR 1169

 
 Wiseman v Wiseman; 1953 - [1953] P 79
 
In re Estate of Park (deceased), Park v Park [1953] 2 All ER 1411; [1954] P 112; [1954] 97 Sol Jo 830
2 Jan 1953
CA
Birkett LJ, Hodson LJ, Singleton LJ
Family, Health
The deceased had remarried. His beneficiaries asserted that he had lacked capacity and that the marriage was ineffective. Held: The test of capacity to marry is whether he or she was capable of understanding the nature of the contract, was free of morbid delusions, and capable of appreciating the normal duties and responsibilities of a marriage. The test of capacity is issue specific. A person might have capacity for one purpose while simultaneously lacking it for another. Singleton LJ said: "Was the deceased on the morning of May 30, 1949, capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To understand the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract." The decision was affirmed.
1 Cites

1 Citers


 
Goodinson v Goodinson [1954] 2 QB 118
1954


Family
W covenanted that for so long as the weekly payments of maintenance for herself and the child were punctually made, she would not commence or prosecute any matrimonial proceedings against the husband. The husband fell in arrears and she claimed the arrears. Held: There was ample consideration to support the agreement apart from the covenant not to sue so as to enable the wife to enforce it against the husband.
1 Citers


 
Bravery v Bravery [1954] 3 All ER 59
1954

Lord Denning
Family
A young husband with the consent of his wife, underwent a sterilisation operation, not so as to avoid the risk of transmitting a hereditary disease, or something similar, but to enable him to "have the pleasure of sexual intercourse without shouldering the responsibilities attaching to it". Held: Denning (dissenting): Such an operation was plainly "injurious to the public interest".
1 Citers


 
Smart v Registrar General [1954] ScotCS CSIH_5; 1954 SC 81; 1954 SLT 213
23 Feb 1954
SCS

Family
Application to have noted in the Scottish registers the divorce between the parties obtained in the Dutch Antilles
[ Bailii ]
 
J v J [1955] 2 All ER 85; [1955] P 215; [1955] 2 WLR 973
1955
FD
Sachs J
Family, Litigation Practice
Sachs J set out the disclosure required in ancillary relief cases: "In cases of this kind, where the duty of disclosure comes to lie upon the husband; where a husband has - and his wife has not - detailed knowledge of his complex affairs; where a husband is fully capable of explaining, and has the opportunity to explain, those affairs, and where he seeks to minimise the wife's claim, that husband can hardly complain if when he leaves gaps in the court's knowledge, the court does not draw inferences in his favour. On the contrary, when he leaves a gap in such a state that two alternative inferences may be drawn, the court will normally draw the less favourable inference - especially where it seems likely that his able legal advisers would have hastened to put forward affirmatively any facts, had they existed, establishing the more favourable alternative."
. . And " . . it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavits of documents or by evidence on oath (not least when that evidence is led by those representing the husband) the obligation of the husband is to be full, frank and clear in that disclosure"
1 Citers


 
Lang v Lang [1955] AC 402; [1954] 3 All ER 571
1955
PC

Family
It is the intention of the deserting party which establishes desertion, and that the intention permanently to end a relationship can be readily inferred. Where a husband's conduct towards his wife was such that a reasonable man would know, and that the husband must have known, that in all probability it would result in the departure of the wife from the matrimonial home, that, in the absence of rebutting evidence, was sufficient proof of an intention on his part to disrupt the home, and the fact that he nevertheless desired or requested her to stay did not rebut the intention to be inferred from his acts - that he intended to drive her out - and he was guilty of constructive desertion.
1 Citers


 
J-PC v J-AF, orse J v J [1955] P 215; [1955] 2 All ER 85; [1955] 3 WLR 72; (1955) 99 Sol Jo 399
1955
CA
Sachs J
Family
Before the divorce, H had earned a good income. After proeedings, his income was very substantially reduced. The court considered how it should deal with non-disclosure in a divorce financial application.
Sachs J said: "In cases of this kind, where the duty of disclosure comes to lie upon the husband; where a husband has - and his wife has not - detailed knowledge of his complex affairs; where a husband is fully capable of explaining, and has the opportunity to explain, those affairs, and where he seeks to minimise the wife's claim, that husband can hardly complain if when he leaves gaps in the court's knowledge, the court does not draw inferences in his favour. On the contrary, when he leaves a gap in such a state that two alternative inferences may be drawn, the court will normally draw the less favourable inference - especially where it seems likely that his able legal advisers would have hastened to put forward affirmatively any facts, had they existed, establishing the more favourable alternative."
. . And "it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavit of documents or by evidence on oath (not least when that evidence is led by those representing the husband), the obligation of the husband is to be full, frank and clear in that disclosure. Any shortcomings of the husband from the requisite standard can and normally should be visited at least by the court drawing inferences against the husband on matters the subject of the shortcomings - insofar as such inferences can be properly drawn."
Matrimonial Causes Act 1950 19(3)
1 Citers


 
Lake v Lake [1955] P 336
1955
CA
Sir Raymond Evershed MR, Hodson LJ
Litigation Practice, Family
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."
Judicature Act 1925 27
1 Citers



 
 J-P C v J-A F; FD 1955 - [1955] P 215
 
Silver v Silver [1955] 1 WLR 728
1955


Family

1 Citers


 
Dennis v Dennis [1955] EWCA Civ 2; [1955] 2 WLR 817; [1955] P 153; [1955] 2 All ER 51
17 Mar 1955
CA
Singleton, Hodson, Moris LJJ
Family
The petitioner sought a divorce alleging cruelty. A decree had been granted by the judge and the husband now appealed saying that the acts alleged fell short of cruelty. Held: "The finding that the husband had been guilty of acts of violence towards his wife on four occasions in the year 1952 is ample to warrant the granting of a Decree on the ground of cruelty unless there be something to show that, in all the circumstances, a Decree ought not to have been granted either because the acts were not serious acts, or for some other reason. Acts of violence by a husband towards his wife such as were found in this case must be regarded seriously. There may be some excuse in some cases of tempers up when the man loses control of himself, but it in difficult to see that there can be any excuse for the acts which, on the Commissioner's finding, were committed by the husband against the wife in this case, and those acts of violence followed a course of conduct which showed an unpleasant steak somewhere if, an I think it was, the evidence of the wife was believed."
[ Bailii ]
 
Regina v County of London Quarter Session Appeals Committee ex parte Rossi [1956] 1 QB 682; [1956] 1 All ER 670
1956
CA
Denning LJ, Morris LJ and Parker LJ
Family, Litigation Practice
A bastardy summons had been served on the defendant but he had not been properly served with a written notice indicating the date of an adjourned hearing. He sought an order for certiorari to quash the decision of the court. Held: Where there has been no service at all then the subsequent order is irregularly obtained and one to which the defendant is entitled to have set aside as of right. "He [that is the clerk of the peace] sent a letter by registered post to Mr Rossi telling him the date, time and the place of the adjourned hearing; but it was returned to him unopened and undelivered. In those circumstances was the Act complied with? Did the clerk of the peace in due course give "notice" to Mr Rossi? It is argued that it is sufficient to comply with section 3 (1) if he sends a registered letter to the respondent, even though it is not received by him, and known not to be received. I do not think this is correct. When construing this section, it is to be remembered that it is a fundamental principal of our law that no one is to be found guilty or be made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. " Denning LJ distinguished between an order regularly made and one which was irregularly made. If it was regularly made then the proper course of complaint was by way of appeal. If it was irregularly made then the proper course was not only by appeal but also by way of prerogative writ. "But once it appeared that the letter had been returned undelivered, then it was quite plain that he had not been given notice at all of the date, time and place of the hearing. In short, service had not been effected; and the court should not have entered upon the hearing at all." and "I would just add this: if the order had been regularly obtained (as the Divisional Court thought), then I would agree that there would be no ground for certiorari and the only remedy of Mr Rossi would be by application to quarter sessions to set aside the order made in his absence and to rehear the appeal." and "... if the letter is returned undelivered and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae. The order of quarter sessions here was irregular because there was no proper service and it should be set aside."
Parker LJ said: "The section, it will be seen, is in two parts. The first part provides that the dispatch of a notice or other document in the manner laid down, shall be deemed to be service thereof. The second provides that, unless the contrary is proved, that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play, and only comes into play, in a case where under the legislation to which the section is being applied the document has to be received by a certain time. if in such a case "the contrary is proved", i.e., that is the document was not received by that time or at all, then the position appears to be that, though under the first part of the section the document is deemed to have served, it has been proved that it was not served in time."
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Lewis v Lewis [1956] 1 WLR 200
1956
FD
Willmer J
Family
A wife returning to live in England after a period living in Australia, resumed her ordinary residence when she began her voyage by sea back to England.
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Ingram v Ingram [1956] P 390
1956

Sachs J
Family
The wife had been convicted of treason, and imprisoned. The husband claimed constructive desertion: Held: A marriage partner's criminal conduct can amount to constructive desertion if that conduct "strikes at the roots of the matrimonial relationship." Sachs J said: "The fact that she had incurred that conviction was, however, relied on as also being a ground upon which she was guilty of constructive desertion. That her conduct in incurring the conviction would, if it became known, render a joint life with him in the matrimonial home at Portsmouth impracticable, was something which in my view was not merely obvious but was something which, as above indicated, was well appreciated by her."
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Mosey v Mosey and Barker [1956] P 26
1956

Sachs J
Family
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 after the husband's death. The husband died before the security had been specified and the wife applied to enforce the order against the executor of the husband’s estate. Held: The order had laid down what was to be done and how it was to be done, and on the basis of the maxim certum est quod certum reddi potest (it is certain if it is capable of being rendered certain), it was held that the order created an enforceable claim, which survived the husband’s death. On the true construction of the order the intention was initially to charge the entire estate, until specific security was granted.
Law Reform (Miscellaneous Provisions) Act 1934 1(1)
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Sugden v Sugden [1957] P 120
1957
CA
Denning LJ
Family
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 under the Matrimonial Causes Act is not as such a cause or action under the 1934 Act, (Lord Denning LJ): "The judge was much influenced by section 1 of the Law Reform (Miscellaneous Provisions) Act, 1934, which he thought applied so as to make the sums for maintenance continue after the father's death. I do not agree with that view. The section only applies to "causes of action" which subsist against the deceased at the time of his death. The legislature had particularly in mind causes of action in tort which used to fall with the death of either party under the old common law maxim actio personalis moritur cum persona. "Causes of action" in the section means, I think, rights which can be enforced – or liabilities which can be redressed – by legal proceedings in the Queen's courts. These now survive against the estate of the deceased person. "Causes of action" are not, however, confined to rights enforceable by action, strictly so called – that is, by action at law or in equity. They extend also to rights enforceable by proceedings in the Divorce Court, provided that they really are rights and not mere hopes or contingencies. They include, for instance, a sum payable for costs under an order of the Divorce Court, or a right to a secured provision under an order already made against a man before his death: see Hyde v. Hyde and Mosey v. Mosey and Barker.
It must be noticed, however, that the section only applies to causes of action "subsisting against" the deceased on his death. This means that the right or liability must have accrued due at the time of his death.
In an action in the Queen's Bench there is usually no difficulty in determining when the right or liability accrued due: but there is more difficulty in proceedings in the Divorce Court. In that court there is no right to maintenance, or to costs, or to a secured provision, or the like, until the court makes an order directing it. There is, therefore, no cause of action for such matters until an order is made. This view of proceedings in the Divorce Court is supported by the decision of my brother Hodson L.J (then Hodson J.) in Dipple v. Dipple, where he pointed out that all that the wife had was the hope that the court would in its discretion order a secured provision. She had no right to it at all until the order was actually made, and hence she had no cause of action at his death. While I entirely agree with that decision, I do not think that the fact that a cause of action is discretionary automatically takes it out of the Act. An injunction is a discretionary remedy, but, if a cause of action for an injunction subsisted at the death, I should have thought it would survive against the personal representatives. The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death.
I would add that, in divorce proceedings, in order that the cause of action should subsist at the death, the right under the order must itself have accrued at the time of death. Thus a cause of action subsists against a husband for arrears of maintenance due at his death, but not for later payments."
Law Reform (Miscellaneous Provisions) Act 1934 1
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Prescott v Fellowes [1958] P 260
1958
CA
Romer LJ
Family, Trusts
The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: "Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a settlement which are familiar to conveyancing practitioners. It has, however, long since been established by decisions which are binding on this court that a disposition of property may a "settlement" for the purposes of section 25 of the Matrimonial Causes Act 1950, notwithstanding that it would not be regarded as a settlement of property for any other purpose. The liberality with which this legislation has been construed is sufficiently exemplified by Bosworthick v. Bosworthick. In that case a wife executed, a few years after her marriage, a bond which secured to her husband an annuity for his life. The marriage was dissolved in 1925 and the wife applied to the court for an order extinguishing her liability under the bond. This court, affirming the decision of Lord Merrivale P., held that the bond was a post-nuptial settlement for the purposes of section 5 of the Matrimonial Causes Act, 1859, and section 192 of the Supreme Court of Judicature (Consolidation) Act, 1925; and the wife's application succeeded. In the course of his judgment Romer J., who was sitting as a member of this court, said that the authorities established "that where a "husband has made a provision for his wife, or a wife for her husband, in the nature of periodical payments, that amounts to a settlement within the meaning of the sections. That may appear to be a very liberal construction of the sections, but I think that it is no more liberal a construction than should be given to them having regard to the obvious purposes for which they were enacted by the legislature."
Matriimonial Cause Act 1950
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Donaldson v Donaldson [1958] 1 WLR 827; [1958] 2 All ER 660; (1958) 102 Sol Jo 548
1958


Family
The parties were to divorce. H was leaving the RAF and received a gratuity of £2,200 and, having commuted his pension, received a total of £7,624 which he gave over to the woman he now wished to marry. She in turn bought a mnk farm which they operated together, but not yet at a profit. He lived rent free at the farm and retained a small pension. W had very limited earning capacity. The elder child was to leave his private school. Held: In settling on an amount for maintenance, the court must look at H's capacity and ability to provide it. Given that his needs were provided from the farm, the court made orders amounting to his entire cash income in favour of W.
Matrimonial Casuses Act 1950
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