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Family - From: 1960 To: 1969

This page lists 28 cases, and was prepared on 02 April 2018.

 
Compton v Compton [1960] P 201
1960
FD
Marshall J
Trusts, Family
The court considered whether trusts were to be deemed to be post nuptial settlements.
Marshall J said: "The first point taken by Mr. Beyfus on the wife's behalf is fundamental. He has submitted that the four settlements in question are not "post-nuptial settlements made on the parties "whose marriage is the subject of the decree." This submission was made before the registrar, but later abandoned before the hearing was concluded. It has, however, been revived before me and I must deal with it. If he were right in that submission this court would have no jurisdiction to make any order upon this application. I do not entertain any doubt that this submission is wrong. These settlements are settlements of property made in the course of marriage, and they deal with the interests of the children of the marriage. In the disposal of the property for the benefit of each child the respondent wife has been given a voice both as trustee and under the power of appointment even though it is the husband who provides all the money. Under the settlements on the two daughters she also has a beneficial interest in reversion. A settlement can settle on parties to a marriage power over the disposal as well as over the property itself."
1 Citers


 
Lilley v Lilley [1960] P 169
1960


Family
A wife's agency of necessity of her husband was not lost if they were obliged to live apart for no fault of hers.
1 Citers



 
 Clutterbuck v Clutterbuck and Reynolds (Queen's Proctor showing cause); 1961 - [1961] 105 Sol Jo 1012
 
Sydney Hastings Dowse v Attorney General Federation of Malaya [1961] UKPC 18
2 May 1961
PC
Radcliffe, Denning Guest
Commonwealth, Family
(Malaya) The appellant had obtained a decree nisi of divorce, but the respondent then intervened saying that since he too had committed adultery he was not entitled to the decree, and the decree was rescinded. The appellant had denied the evidence of the woman making the allegation. Corroboration had been found in another incident.
[ Bailii ]
 
Kassim v Kassim [1962] P 224
1962


Family
In the case of a marriage void for bigamy the court had no jurisdiction to withold a decree of nullity.
1 Citers



 
 S v S; CA 1962 - [1962] 3 All ER 55
 
Hine v Hine [1962] 1 WLR 1124
1962
CA
Lord Denning MR
Trusts, Family
Lord Denning MR said: "the jurisdiction of the court over family assets under section 17 is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the Court to make such order as it thinks fit. This means, as I understand it, that the Court is entitled to make such order as appears to be fair and just in all the circumstances of the case."
Married Women's Property Act 1882 17
1 Citers



 
 Williams v Williams; HL 27-Jun-1963 - [1963] UKHL 6; [1964] AC 598

 
 Gollins v Gollins; HL 27-Jun-1963 - [1963] UKHL 5; [1964] AC 644; [1963] 3 WLR 176; [1963] 2 All ER 966
 
Griffiths v Griffiths [1964] 1 WLR 1483
1964
CA
Roskill LJ
Family
The test for whether there had been constructive desertion was: "Was the husband guilty of such grave and weighty misconduct that he must have known that his wife, if she acted like any reasonable woman in her position, would in all probability withdraw permanently from cohabitation?"
Roskill LJ said: "The parties having chosen to fight the case in this way, the judge was obviously bound to find, as he did find with the utmost care, where he thought the truth lay on every one of those allegations which had been launched before him by way of charge and countercharge over so long a period."
1 Citers


 
Jackson v Jackson and Pavan [1964] P 25
1964


Family
A properly issued birth certificate is prima facie evidence of the matters stated.
1 Citers


 
Bedson v Bedson [1965] 2 QB 666; [1965] 3 All ER 307
1965
CA
Lord Denning MR, Russell LJ, Davies LJ
Family, Trusts
The parties, a married couple disputed the shares in which the matrimonial home, formerly held by them as joint tenants would be held after severance o that joint tenancy. Held: The wife was entitled to a half share in the property.
Russell LJ considered that the court had no jurisdiction under section 17 of the 1882 Act to find that the wife had any beneficial interest other than one equal to that of the husband. He said: ""If a freehold is conveyed to A and B on trust for themselves as joint tenants, each has the same beneficial interest in that property as the other. That is inherent in the nature of the beneficial interest created, as is the right to the whole on survivorship before severance. It is also inherent in the nature of the beneficial interest created that either may sever at any time inter vivos-, and on severance the beneficial joint tenancy becomes a beneficial tenancy in common in undivided shares and right by survivorship no longer obtains. If there be two beneficial joint tenants, severance produces a beneficial joint tenancy in common in two equal shares . . by declaration of the beneficial joint tenancy between A and B, their respective rights and titles are no less clearly laid down and established than if there had been a declaration of a beneficial tenancy in common in equal undivided shares."
Lord Denning MR, delivering the leading judgment took a strong line of his own, saying: "Although the court refused a sale, we are asked to determine what is the wife's share in the property. I do not think that the fact that they were joint tenants means that, on a sale, she necessarily takes a half share. That is decisively shown by the decision of this court in Hine v. Hine. I would refer particularly to the wise observations of Pearson LJ. That decision was distinguished by Russell, LJ, in Wilson v Wilson, on the ground that the conveyance in Hine v. Hine did not contain an express declaration of trust for the two jointly: but I for myself assumed that it did, because a declaration of trust is common form: see Smith v. Smith and Brown v. Brown and s.36(1) of the Law of Property Act 1925. The mere insertion of a declaration of trust (which would be imported anyway) cannot make any difference. Notwithstanding the criticisms that have been made of Hine v. Hine, it is, I think, still good law. In that very case, Pearson, LJ, pointed out that a half-and-half division would not have produced a fair and just result, whereas decisions of this court did achieve a reasonable result. I would, myself, hesitate long before I overthrew a case which did' justice: but suffice it to say that it is binding on this court and none of us can overthrow it. In this situation, I have had great doubt whether we should interfere with the decision of the judge who relied on Hine v. Hine, but my brethren think that we should, and I concur on the ground that there is solid ground for believing that the parties did intend that, come what may, the proceeds of the sale of the property (when it should happen) should be shared equally. I say this because of the form of the latest accounts which were agreed by the husband with the accountants after the disputes had arisen. They showed the property as belonging half-and-half to each."
Lord Justice Davies, said that he could see no distinction in principle between a declaration of trust of the nature under discussion and a mere conveyance into joint names, and: "From the many and sometimes conflicting authorities the principle, in my judgment, emerges that, in proceedings under s.17 of the Act of 1882 between husband and wife, the form of a transaction is not conclusive. In enquiring into the title to property, the court must investigate the reality of the situation and, having done so and having ascertained the facts, must make such order as it thinks fit. So that, whatever the documents may appear to say on their face, the court may reach the conclusion that, in reality, by express or implied agreement the true position was something different from that appearing on the face of the documents. Unless, however, the court is satisfied on evidence that the parties expressly or by conduct did agree to a state of affairs other than that indicated by the documents, then the documents must prevail. It may be that it is more difficult to go behind a declaration of trust than a conveyance. It may be that practical difficulties may arise in any given case; but I do not think that there is any authority for the proposition that, in no circumstances as between husband and wife where no third party interest is concerned, can the court look behind the form of the documents."
Nevertheless, he concluded that since there was no evidence of any agreement between the parties that the property should be owned otherwise than in equal shares, the wife was entitled to a half- interest in the property.
Married Women's Property Act 1882 17
1 Citers


 
Sansom v Sansom [1966] P 52
1966


Family
An appellate judge in ancillary proceedings who has seen the witnesses, is entitled to give weight to his advantages in having seen the witnesses and his experience in dealing with such issues.
1 Citers



 
 Blyth v Blyth; HL 1966 - [1966] AC 643
 
Indyka v Indyka [1966] 3 All ER 583
1966
CA
Diplock LJ
Family
The court was asked whether, and if so when, it should recognise a decree of divorce granted in a foreign jurisdiction. Held: Diplock LJ said: "It is, I apprehend, a well established principle of public policy applied by English Courts that so far as it applies within their part to ensure, the status of a person as married or single should be the same in every country which he visits, that is, that there should not be "limping marriages"; and if marriages are to be dissoluble at all, this involves deciding what courts we should recognise as having jurisdiction to dissolve them." and
"It follows, therefore, that to the extent that the inhibition is removed by the extension of the jurisdiction of the English Courts themselves to decree dissolution of marriages, the public policy requires English Courts to recognise the effectiveness of decrees of dissolution of marriages pronounced by Courts in exercising their jurisdiction in circumstances which mutatis mutandis would entitle an English Court to exercise its extended jurisdiction to dissolve a marriage." and
"For let us not pretend that the common law is changeless. If it were, it would have long ago been replaced by statutory codes. It is the function of the Courts to mould the common law and to adapt it to the changing society for which it provides the rules of each man's duty to his neighbour; and that is what the Courts have been doing since 1953 in this important field of common law. Within the limits that we are at liberty to do so, let us adapt the common law in a way that makes common sense to the common man. I think that in this present case we have the liberty, unfettered by any precedent, to choose between the narrower basis of recognition of foreign decrees of dissolution which Latey J. adopted and the wider basis which I have stated above. The latter seems to me to accord better with the public policy of avoiding 'limping marriages' and with what the common man would think was common sense."
1 Citers


 
Henderson v Henderson [1967] P 77
1967

Simon P
Family
The court considered what was required to establish a domicile at law: "First, clear evidence is required to establish a change of domicile. In particular, to displace the domicile of origin in favour of the domicile of choice, the standard of proof goes beyond a mere balance of probabilities. Where residence however long is neutral or colourless or indeterminate in character, it will not give rise to an inference that the domicile of origin has been abandoned. Secondly, on the other hand, a mere "floating intention" (to adopt the language of Story) to return to the country of origin at some future period is not sufficient for the retention of the domicile of origin if the propositus has settled in some other territory subject to a distinct system of law with the intention of remaining there for an indefinite time."
1 Citers


 
Talbot v Talbot (1967) 111 Sol J 213
1967

Ormrod J
Family
A marriage had been celebrated, but in fact both parties were women. Held: The marriage was annulled: "there was plainly no marriage and pronounced a decree nisi (of nullity) saying that the decree could be made absolute forthwith."
1 Citers


 
In the Estate of Fuld, decd (No 3) [1968] P 675; [1967] 3 WLR 401; [1967] 3 All ER 318
1967
ChD
Scarman J
Jurisdiction, Family, Litigation Practice, Wills and Probate
The deceased had spent relatively equal periods in two or more countries. The parties disputed his domicile. Held: A blind adherence to foreign law can not be always expected of an English Court. The legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice.
Scarman J said: "First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time." and
"(1) The domicile of origin adheres unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn; the ultimate decision in each case is one of fact-of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres . . ." and
"necessary intention must be clearly and unequivocally proved. " The domicile of origin is more enduring than the domicile of choice: " . . It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the person asserting the change . . What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B in Barry v. Butlin [1838] 2 Moo P.C.C. 480) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
Scarman J dismissed the idea that the standard of proof required to prevent an inference of the revival of a domicile of origin on the loss of a domicile of choice was the criminal standard. An inference drawn by the court must be consistent with all the relevant proved or admitted facts. He said: "There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?
In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin "is more enduring, its hold stronger and less easily shaken off." In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
. . And: "when all is dark, it is dangerous for a court to claim that it can see the light."
When the court is asked to grant probate in solemn form it is called upon to decide whether the instrument propounded expresses the real intention of the testator. The law requires the court to exercise vigilant care and scrutiny whenever a case reveals reasonable grounds for suspicion. Scarman J said: "Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is part of the substantive law - the requirements of proper form and due execution. Such requirements . . are no mere technicalities. They are the first line of defence against fraud upon the dead.
The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences - presumptions as they are sometimes called - to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and 'he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator'."
1 Cites

1 Citers


 
Re Seaford Dec'd [1968] P 53
1968
CA
Willmer LJ, Davies LJ
Family, Litigation Practice, Wills and Probate
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.
1 Citers


 
Frost v Frost [1968] 1 WLR 1221
1968
CA

Family
Admission of new evidence on appeal in family matters.
1 Citers


 
Padolecchia v Padolecchia [1968] P 314
1968
FD
Sir Jocelyn Simon P
Family
The law governing the capacity of a party for marriage is governed by their ante-nuptial domicile.
1 Citers



 
 Jones v Padavatton; CA 29-Nov-1968 - [1969] 1 WLR 328; [1969] 2 All ER 616; [1968] EWCA Civ 4
 
Regina v Registrar General, Ex parte Segerdal [1970] 1 QB 430
1969
QBD
Lord Parker CJ, Ashworth and Cantley JJ
Family, Administrative, Ecclesiastical
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.
Places of Worship Registration Act 1855 2
1 Citers


 
Brett v Brett [1969] 1 WLR 487
1969


Family
Ancillary relief where "this marriage only lasted a very short time"
1 Citers



 
 Alhaji Mohamed v Knott; 1969 - [1969] 1 QB 1
 
Indyka v Indyka [1969] 1 AC 33
1969
HL
Lord Wilberforce
Family
An English court should recognise a divorce decree granted in a foreign country where there was a real and substantial connection between the petitioner for the divorce and the country exercising the jurisdiction.
Lord Wilberforce said: "In my opinion, it would be in accordance with the developments I have mentioned and with the trend of legislation – mainly our own but also that of other countries with similar social systems – to recognise divorces given to wives by the courts of their residence wherever a real and substantial connection is shown between the petitioner and the country, or territory, exercising jurisdiction."
Law Reform (Miscellaneous Provisions) Act 1949
1 Cites

1 Citers



 
 Porter v Porter; CA 1969 - [1969] 3 All ER 640

 
 Pettitt v Pettitt; HL 23-Apr-1969 - [1969] 2 WLR 966; [1969] 2 All ER 385; [1970] AC 777; [1969] UKHL 5
 
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