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Family - From: 1980 To: 1984

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

 
In re Beaumont, Deceased; Martin v Midland Bank Trust Co Ltd [1980] 1 Ch 444; [1980] 1 All ER 266
1980

Robert Megarry VC
Wills and Probate, Family
The words in the section 'immediately before' in the context of the maintenance of the claimant by the deceased before the death, were not to be construed literally. The situation was to be viewed as the general arrangements for maintenance in place at the time of the death. In this case a short stay in hospital prior to death is not sufficient to prevent the claim. "The contemplation of possible examples such as these suggests certain consequences. First, it seems to me improbable that the word 'immediately' in section 1(1)(e) was intended to confine the gaze of the court to whatever was the state of maintenance existing at that precise moment. I very much doubt whether Parliament can have intended people to shuffle in and out of section 1(1)(e) and (3) with every variation in the state of maintenance between them, so that last week C was partly maintaining D with substantial contributions, this week neither is maintaining the other, and the next week D will be maintaining C with substantial contributions. Given that the moment at which the examination must be made is therefore the moment before the death of the deceased, what has to be examined ought not, I think, to be the de facto state or balance of maintenance at that moment, but something more substantial and enduring.
The question is what that something is. If at the moment before the death of the deceased there is some settled basis or arrangement between the parties as regards maintenance, then I think that section 1 should be applied to this, rather than to any de facto variation in the actual maintenance that may happen to exist at that moment. If the general arrangements between the parties is that D is substantially maintaining C, then matters ought to be decided on that basis. This should be so even if at the moment before D dies, C is in fact making such contributions, whether in personal services such as nursing or in the provision of money or goods, that on balance C is substantially maintaining D. The word 'immediately' plainly confines the court to the basis of the arrangement subsisting at the moment before death and excludes whatever previously subsisted but has ended and the state of affairs under it."
Inheritance (Provision for Family and Defendants) Act 1975 1
1 Citers


 
Dipper v Dipper [1981] Fam 31; [1980] 1 FLR 286
1980
CA

Family
The court has no power to dismiss an applicant's claim for periodical payments against her will.
Matrimonial Causes Act 1973 25
1 Citers


 
Balraj v Balraj (1980) 11 Fam Law 110
1980
CA
Cumming-Bruce LJ
Family
Cumming-Bruce LJ said: "In behaviour cases, where the ground relied upon to prove the breakdown or a condition precedent to breakdown is the effect of behaviour, the court has to decide the single question whether the husband (for example) has so behaved that it is unreasonable to expect the wife to live with him. In order to decide that, it is necessary to make findings of fact of what the husband actually did and then findings of fact upon the impact of his conduct on that particular lady. As has been said again and again between a particular husband and a particular lady whose conduct and suffering are under scrutiny, there is of course a subjective element in the totality of the facts that are relevant to the solution but, when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test."
Obiter the court said: "(i) the court has to decide the single question whether the respondent has so behaved that it is unreasonable to expect the petitioner or applicant to live with him;
(ii) in order to decide that, it is necessary to make findings of fact as to what the respondent actually did, and findings of fact as to the impact of that conduct on the petitioner or applicant;
(iii) there is, of course, a subjective element in the totality of the facts that are relevant to the solution, but when that subjective element has been evaluated, at the end of the day the question falls to be determined on an objective test."
1 Citers



 
 Pearce v Pearce; CA 1980 - [1980] 1 FLR 261

 
 Edgar v Edgar; CA 23-Jul-1980 - [1980] 1 WLR 1410; [1980] 3 All ER 887; [1980] EWCA Civ 2; [1980] 2 FLR 19

 
 H v H; 1981 - [1981] 2 FLR 392

 
 M v M (Financial Provision: Conduct); 1981 - (1982) 3 FLR 83; (1981) Fam Law 118

 
 Regina v Secretary of State for the Home Department Ex Parte Puttick; CA 1981 - [1981] 1 QB 767; [1981] 1 All ER 776
 
In re Holliday [1981] 1 Ch 405
1981
CA
Sir David Cairns, Buckley LJ
Family, Insolvency
A property adjustment order cannot be made against a bankrupt former spouse because the property of the bankrupt vests in the trustee in bankruptcy against whom an order under section 24 cannot be made. It was highly unlikely that postponement of payment of the debts would cause any great hardship to any of the creditors.
Law of Property Act 1925 30
1 Citers


 
London Borough of Hackney v Ezedinma [1981] 3 All ER 439
1981
QBD
May J
Family, Housing
The house had rooms let for students in the basement and on the ground, first and second floors, with kitchens on the top three floors to serve the rooms. Five rooms had been let when the authority issued a notice under section 19(1) to restrict the number of households to three. The agent let a further three rooms, and the authority prosecuted him, saying that there weer no eight households in breach of the notice. The authority appealed dismissal of the summons. Held. The authority's appeal failed. The respondent was the occupier within 19(2). What amounts to a household is a question of fact in the circumstances, but one room could constitute a household.
Housing Act 1961 19(2) 19(10) - Housing Act 1964 67(5)
1 Cites

1 Citers



 
 Vervaeke v Smith; CA 1981 - [1981] Fam 77
 
W v W (Disclosure by Third Party) (1981) 2 FLR 291
1981


Family
A creditor of one party to a divorce may be able to claim that an order to produce documents in ancillary proceedings was oppressive.

 
Re Dennis deceased [1981] 2 All ER 140
1981
ChD
Browne-Wilkinson J
Wills and Probate, Family
The courts have declined to define the word "maintenance" closely. "Maintenance" connotes only those payments which will directly or indirectly enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. "It is now clearly established that claims under the Act by persons other than spouses are limited to maintenance. The applicant has to show that the will fails to make provision for his maintenance: see Re Coventry (deceased) [1979] 2 All ER 408, [1980] Ch 461; affd [1979] 3 All ER 815, [1980] Ch 461. In that case both Oliver J at first instance and Goff LJ in the Court of Appeal disapproved of the decision in Re Christie (deceased) [1979] 1 All ER 546, [1979] Ch 168, in which the judge had treated maintenance as being equivalent to providing for the well-being or benefit of the applicant. The word 'maintenance' is not as wide as that. The court has, up until now, declined to define the exact meaning of the word 'maintenance' and I am certainly not going to depart from that approach. But in my judgment the word 'maintenance' connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of a lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance."
Inheritance (Provision for Family and Dependants) Act 1975
1 Cites

1 Citers



 
 Foley v Foley; CA 1981 - [1981] 3 WLR 284

 
 Regina v Chief National Insurance Commissioner Ex Parte Connor; QBD 1981 - [1981] 1 QB 758; [1981] 1 All ER 769

 
 Page v Page; CA 1981 - (1981) 2 FLR 198

 
 Jelley v Illife; CA 1981 - [1981] Fam 128; [1981] 2 All ER 29
 
Thwaite v Thwaite [1981] 1 All ER 789
1981
CA

Family
The failure of one party to complete a conveyance as part of the ancillary relief order rendered the order executory, and therefore subject to the court's jurisdiction to amend it. The court discussed the principle in de Lasala and saying that the principle "represent a significant departure from the general principle frequently stated in cases arising in other divisions of the High Court, that the force and effect of consent orders derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent order . . A distinction, therefore, has to be made between consent orders made in this and other types of litigation."
1 Cites

1 Citers



 
 Anastasio v Anastasio; 1981 - (1981) FLC 91-093
 
Roche v Roche (1981) Fam Law 243
1981
CA

Family

Matrimonial Causes Act 1973 37
1 Citers



 
 Tebbutt v Haynes; 1981 - [1981] 2 All ER 238

 
 Green v Green; 1981 - [1981] 1 WLR 391

 
 Barnett v Hassett; 1981 - [1982] 1 All ER 80; [1981] 1 WLR 1385

 
 Inland Revenue Commissioners v Duchess of Portland; 1982 - [1982] STC 149

 
 Emanuel v Emanuel; 1982 - [1982] 1 WLR 669; [1982] 2 All ER 342
 
Robertson v Robertson [1983] 4 FLR 387; (1982) 12 Fam Law 181
1982
FD
Balcombe J
Family
The parties had married in 1973, separated in 1976, and divorce proceedings begun in 1977. W suffered bad health and did not work. H had a position as a senior editor of a newspaper. Held: The periodical payments order should provide support for W during her ill health, but not for life. A lump sum was also awarded. W's application under s10 was unnecessary and inappropriate since the court would in any event ensure that the provision was reasonable and fair.
Matrimonial Causes Act 1973 10
1 Citers



 
 England v Secretary of State for Social Services; 1982 - [1982] 3 FLR 222

 
 Midland Bank Trust Co Ltd v Green (No 3); CA 1982 - [1982] 1 Ch 529; [1981] 3 All ER 744; [1982] 2 WLR 1
 
Zaal v Zaal (1983) 4 FLR 284; (1982) 12 Fam Law 173
1982
FD
Bush J
Family
The English wife had married a Dubai husband under muslim law. H pronounced talaq in Dubai. W, wanting to divorce him for adultery, said it was ineffective since she had not had notice of it. Held: The Talaq was effective under Dubai law, and could only be challenged under section 8. It would be against public policy to recognise it becase W had only had notice after something done effectively in secret.
Recognition of Divorces and legal Separations Act 1971 8
1 Citers


 
Preston v Preston [1982] Fam 17
1982
CA
Ormrod LJ
Family
The court set out a series of principles applicable in ancillary relief cases where the resources exceeded the strict needs of the parties, including that the court should not make allowance for a spouse's desire to be able to leave a sum to her children by her will, and '. . . the word "needs" in section 25(1)(b) in relation to the other provisions in the subsection is equivalent to "reasonable requirements", having regard to the other factors and the objective set by the concluding words of the subsection . . .'
Matrimonial Causes Act 1973 25(1)(b)
1 Citers


 
Potter v Potter [1982] 3 All ER 321
1982
FD

Family, Costs
The court considered the admissibility of without prejudice correspondence on costs decisions.
1 Cites

1 Citers


 
B v B (Financial Provision) (1982) 3 FLR 298
1982
CA

Family
"judicious encouragement" can be legitimately made by the court to induce family companies and discretionary trustees to help a maintaining spouse to satisfy financial arrangements made by the court:
1 Citers


 
Robinson v Robinson (Disclosure) Practice Note (1983) FLR 102; [1982] 1 WLR 786
1982
CA
Templeman LJ, Ormrod LJ, Wood J
Family, Litigation Practice
The court considered the duty of parties in finacial relief proceedings to give full disclosure. Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank disclosure of their property and financial resources; accordingly the power to set aside orders was not limited to cases of fraud or mistake, but extended to cases of material non-disclosure; where it could be said that, on the true facts, the orders should not have been made, then the orders could be set aside.
Templeman LJ said: "There is no doubt that both the Court of Appeal and the judge at first instance have jurisdiction in the situation with which we are faced in this case, where the application is to set aside a final order. " After quoting from de Lasala, he continued: "There are many references in the books to separate actions to set aside a judgment on the ground of fraud. In the Family Division, as has been said many times, this power to set aside final orders is not limited to cases when fraud or mistake can be alleged. It extends, and has always extended, to cases of material non- disclosure.
A distinction has to be drawn between the restrictions imposed by the Matrimonial Causes Act 1973 on varying lump sum orders or property adjustment orders which cannot be varied, and the power to set aside an order which has been obtained by fraud or mistake, or by material non-disclosure. The essence of the distinction is that the power to vary usually reflects changes of circumstances subsequent to the date of the order, whereas the power to set aside arises where there has been fraud, mistake, or material non-disclosure as to the facts at the time the order was made. From the point of view of convenience, there is a lot to be said for proceedings of this kind taking place before a judge at first instance, because there will usually be serious and often difficult issues of fact to be determined before the power to set aside can be exercised. These can be determined more easily, as a rule, by a judge at first instance. Moreover, he can go on to make the appropriate order which we cannot do in this court. I think that these proceedings should normally be started before a judge at first instance, although there may be special circumstances which make it better to proceed by way of appeal."
He referred to the principles in Minton before saying.
After referring to the clean break principle in Minton v. Minton, Ormrod LJ went on: "It is essential in these cases that the court retains its power to protect both parties against injustice which may arise from failure to comply with their obligations to disclose. In other words there is a lot to be said for the principle of the clean break but I have no doubt that Lord Scarman, when he used the phrase, had in mind that the break should be clean in more senses than one."
The court of appeal is not the appropriate forum for inquiry into disputed issues of non-disclosure raised in proceedings for the setting aside of a financial order
Matrimonial Causes Act 1973
1 Cites

1 Citers



 
 Camm v Camm; CA 1982 - (1982) 4 FLR 577; [1983] 4 FLR 577

 
 Robinson v Robinson (Practice Note); CA 2-Jan-1982 - [1982] 2 WLR 146; [1983] Fam 52
 
Bernard v Josephs [1982] 1 Ch 391; [1982] 3 All ER 162; [1982] 2 WLR 1052
30 Mar 1982
CA
Griffiths LJ, Lord Denning MR, Kerr LJ
Trusts, Family
The court considered the division of proceeds of sale of a house bought by an unmarried couple. Held: Where the trusts for which a property was purchased have been concluded, the house should be sold.
Griffiths LJ said: "the fact that one party paid the mortgage may indicate that it was recognised by the couple that that party was solely responsible for providing the purchase price and therefore to be regarded as the sole beneficial owner . . When the proceeds of sale are realised there will have to be equitable accounting between the parties before the money is distributed. If the woman has left, she is entitled to receive an occupation rent, but if the man has kept up all the mortgage payments, he is entitled to credit for her share of the payments:if he has spent money on recent redecoration which results in a much better sale price, he should have credit for that, not as an altered share, but by repayment of the whole or a part of the money he has spent. These are but examples of the way in which the balance is to be struck . . It might in exceptional circumstances be inferred that the parties agreed to alter their beneficial interests after the house was bought; an example would be if the man bought the house in the first place and the woman years later used a legacy to build an extra floor to make more room for the children. In such circumstances the obvious inference would be that the parties agreed that the woman should acquire a share in the greatly increased value of the house produced by her money. But this depends on the court being able to infer an intention to alter the share in which the beneficial interest was previously held; the mere fact that one party has spent time and money on improving the property will not normally be sufficient to draw such an inference."
1 Cites

1 Citers

[ Bailii ]
 
Reid v Reid [1982] 1 WLR 1036; [1982] 3 All ER 328; [1982] UKPC 11
20 Apr 1982
PC

Commonwealth, Family
New Zealand
[ Bailii ]
 
A v United Kingdom (1983) 5 EHRR CD296; 9054/80; [1982] ECHR 15
8 Oct 1982
ECHR

Human Rights, Family
A disabled UK citizen living on benefits complained of the denial of entry clearance to his Filippino fiancee whom he had never met but wished to marry here. The ground of refusal was that she would be a charge on public funds. Held: The right to marry did not in principle include the right to choose the geographical location of the marriage and the refusal of entry was justified. The case did not involve a genuine marriage between two persons already in the jurisdiction.
European Convention on Human Rights 8
1 Citers

[ Bailii ]
 
Hussain v Hussain [1983] Fam. 26
1983
CA

Family
A marriage celebrated outside England under a system of law permitting polygamy is not to be regarded as polygamous for the purpose of s.11(d) (or presumably for other purposes) if neither spouse had capacity to enter into a second marriage, such capacity being determined by the law of the domicile of the spouse in question immediately before the first marriage.
Matrimonial Causes Act 1973 11
1 Citers



 
 Kourkgy v Lusher; 1983 - (1983) 4 FLR 65; 12 Fam Law 86
 
In re Abbott [1983] 1 Ch 45
1983
ChD
Peter Gibson J
Family, Insolvency, Land
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or its implementation was void under section 42 which protected only a settlement made to a purchaser in good faith and for valuable consideration. The court dismissed the application saying the wife was such a purchaser. The trustee appealed. Held: The appeal was dismissed. The court accepted the submission of the wife's counsel that the compromise of a bona fide claim for ancillary relief can constitute the claimant a purchaser for valuable consideration of what he receives under the compromise, even though no interest in property is transferred by the purchaser and the consideration provided by the purchaser is not measurable in money. The Vice-Chancellor agreed.
Bankruptcy Act 1914 42(1)
1 Citers



 
 Ali Ebrahim v Ali Ebrahim (Queen's Proctor intervening); 1983 - [1983] 1 WLR 1336

 
 Vervaeke v Smith; HL 1983 - [1983] 1 AC 145; [1982] 2 All ER 144; [1982] 2 WLR 855
 
Tommey v Tommey [1983] Fam 15; [1983] 4 FLR 159
1983
FD
Balcombe J
Family, Undue Influence
W asked the court to set aside a consent financial relief order. She was to transfer her half of the home to H, in return for £8,000 paid by H in settlement of her financial provision. She said that in the negotiations leading up to the agreement H had exercised undue influence over her. Held: As a matter of law, undue influence was not a good ground to set aside a consent order. She also said that because H had filed no affidavit, the judge had made the order without full knowledge. Balcombe J said: "Nor is there substance in another ground, viz. ignorance of relevant facts on the part of the judge. A judge who is asked to make a consent order cannot be compelled to do so: he is no mere rubber stamp. If he thinks there are matters about which he needs to be more fully informed before he makes the order, he is entitled to make such inquiries and require such evidence to be put before him as he considers necessary. But, per contra, he is under no obligation to make inquiries or require evidence. He is entitled to assume that parties of full age and capacity know what is in their own best interests, more especially when they are represented before him by counsel or solicitors. The fact that he was not told facts which, had he known them, might have affected his decision to make a consent order, cannot of itself be a ground for impeaching the order. Accordingly, the wife is not entitled on this ground to have the order of 18 February 1975 set aside."
1 Citers


 
Robin v Robin [1983] 13 Fam Law 147; [1983] 4 FLR 632
1983
CA

Family
At the first ancillary relief application orders had been made but the registrar had postponed enforcement of a charge while the child was under age. Four years later, W returned for clarification of the order, but the judge dismissed her applications and ordered her to transfer the property to her former husband subject to a charge. Held: W's appeal was allowed. H had made no application for ancillary relief, the court had had no juridiction to make the orders. The original order having insufficient decipherable meaning, a retrial was ordered.
1 Citers


 
Re Bunning, deceased; Bunning v Salmon [1984] 1 Ch 480; [1984] 3 WLR 265; [1984] 3 All ER 1
1984
ChD
Vinelott J
Wills and Probate, Family
Vinelott J calculated that the maximum award which the widow would have received in matrimonial proceedings to be £36,000. Yet on an application under the 1975 Act he awarded her £60,000.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers


 
Burns v Burns [1984] 1 All ER 244; [1983] EWCA Civ 4; [1984] Ch 317; [1984] 2 WLR 582
1984
CA
Waller, Fox, May LJJ
Family, Trusts
The parties lived together for 17 years but were not married. The woman took the man's name, but beyond taking on usual household duties, she made no direct financial contribution to the house. She brought up their two children over 17 years. Latterly she went to work, but her earnings went on normal household expenses. Held: She had acquired no interest in the family home. There was no express agreement to qualify the fact that the house was bought in the man's sole name. Some substantial contribution was required before an intention that she was to take a share could be imputed.
Fox LJ said: "The house with which we are concerned in this case was purchased in the name of the defendant and the freehold was conveyed to him absolutely. That was in 1963. If, therefore, the plaintiff is to establish she has a beneficial interest in the property she must establish that the defendant holds the legal estate upon trust to give effect to that interest. That follows from Gissing v. Gissing [1971] A.C. 886. For present purposes I think that such a trust could only arise (a) by express declaration or agreement or (b) by way of a resulting trust where the claimant has directly provided part of the purchase price or (c) from the common intention of the parties.
In the present case (a) and (b) can be ruled out. There was no express trust of an interest in the property for the benefit of the plaintiff; and there was no express agreement to create such an interest. And the plaintiff made no direct contribution to the purchase price. Her case, therefore, must depend upon showing a common intention that she should have a beneficial interest in the property. Whether the trust which would arise in such circumstances is described as implied, constructive or resulting does not greatly matter. If the intention is inferred from the fact that some indirect contribution is made to the purchase price, the term “resulting trust” is probably not inappropriate. Be that as it may, the basis of such a claim, in any case, is that it would be inequitable for the holder of the legal estate to deny the claimant’s right to a beneficial interest.”
May LJ said: "For my part, I agree that the principles which the courts must apply are those laid down in Pettitt v Pettitt [1970] AC 777 and Gissing v Gissing [1971] AC 886. Those two cases concerned disputes between couples who had in fact been married, where the claims were made under section 17 of the Married Women’s Property Act 1882 and not under the matrimonial legislation. But it is quite clear that the House of Lords decided that section 17 is merely a procedural section giving the courts no overriding general discretion in such circumstances and that the principles to be applied are ill general the same whether the couple have been married or not." and
"In the light of all these cases, I think that the approach which the courts should follow, be the couples married or unmarried is now clear. What is difficult, however, is to apply it to the facts and circumstances of any given case. Where the family home is taken in the joint names, then unless the facts are very unusual I think that both the man and the woman are entitled to a share in the beneficial interest. Where the house is bought outright and not on mortgage, then the extent of their respective shares will depend upon a more or less precise arithmetical calculation of the extent of their contributions to the purchase price. Where, on the other hand, and as is more usual nowadays, the house is bought with the aid of a mortgage, then the court has to assess each of the parties’ respective contributions in a broad sense; nevertheless the court is only entitled. to look at the financial contributions or their real or substantial equivalent, to the acquisition of the house; that the husband may spend his weekends redecorating or laying a patio is neither here nor there, nor is the fact the woman has spent so much of her time looking after the house, doing the cooking and bringing up the family.
The inquiry becomes even more difficult when the home is taken in only one of the two names. For present purposes I will assume that it is the man, although the same approach will be followed if it is taken in the name of the woman. Where a matrimonial or family home is bought in the man’s name alone on mortgage by the mechanism of deposit and installments, then if the woman pays or contributes to the initial deposit this points to a common intention that she should have some beneficial interest in the house. If thereafter she makes direct contributions to the instalments, then the case is a fortiori and her rightful share is likely to be greater. If the woman, having contributed to the deposit, but although not making direct contributions to the instalments, nevertheless uses her own money for other joint household expenses so as to enable the man the more easily to pay the mortgage instalments out of his money, then her position is the same. Where a woman has made no contribution to the initial deposit, but makes regular and substantial contributions to the mortgage instalments, it may still be reasonable to infer a common intention that she should share the beneficial interest from the outset or a fresh agreement after the original conveyance that she should acquire such a share. It is only when there is no evidence upon which a court can reasonably draw an inference about the extent of the share of the contributing woman that it should fall back on the maximum “equality is equity.” Finally, when the house is taken in the man’s name alone, if the woman makes no “real” or “substantial” financial contribution towards either the purchase price, deposit or mortgage instalments by the means of which the family home was acquired, then she is not entitled to any share in the beneficial interest in that home even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union.
On the facts of the instance case, which Waller L.J. has outlined, I think that it is clear that the plaintiff falls into the last of the categories to which I have just referred and accordingly I too would dismiss this appeal. When one compares this ultimate result with what it would have been had she been married to the defendant, and taken appropriate steps under the Matrimonial Causes Act 1973, I think that she can justifiably say that fate has not been kind to her. In my opinion, however, the remedy for any inequity she may have sustained is a matter for Parliament and not for this court”.
Law of Property Act 1925 - Trustees Act 1925
1 Cites

1 Citers

[ Bailii ]
 
Sutton v Sutton [1984] Ch 184
1984

John Mowbray QC
Family, Equity
The husband and his wife agreed that in consideration, inter alia, of the wife consenting to the husband divorcing her on the ground of two years' separation and consent, he would transfer the matrimonial home to her, and she would take over responsibility for the mortgage. A decree absolute was made on the husband's petition but he then refused to carry out his part of the bargain. Held: If the agreement was enforceable as a contract, it would leave nothing for the court to do under sections 23 and 24 of the 1973 Act which give the court power to order maintenance and make property adjustments because the agreement pre-judged and foreclosed all financial questions. The wife's consent to the divorce as agreed was an act of part performance, being an act referable to the contract. "her consent to the petition was in itself, in the circumstances, tied to the contract about the house". The husband "stood by and let her perform that part of her bargain irretrievably, and that raised an equity" in her favour.
Matrimonial Causes Act 1973 1(2)(d) 23 24
1 Cites

1 Citers


 
Practice Direction (Family Division: Financial Statement) [1984] 1 WLR 674
1984


Family
The decision of the Court of Appeal in Jenkins v. Livesey (formerly Jenkins) ... is a reminder that in all cases where application is made for a financial provision or property adjustment order the court is required to have before it an agreed statement of the general nature of the means of each party signed by the parties or their solicitors. If affidavits of means have been filed it will be sufficient if the statement is in the form of a certificate that there has been no change of substance since the date of the affidavit or if there has, what changes there have been. If no such evidence has been filed the statement should include a summary of the amount or value of the capital and income resources of each of the spouses . . . and any special features which require to be considered under section 25 of the Matrimonial Causes Act 1973."
Matrimonial Causes Act 1973 25
1 Citers


 
Re Besterman, decd [1984] Ch 458
1984
CA
Oliver LJ
Wills and Probate, Family
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. "In an application under section 25 of the Matrimonial Causes Act 1973 the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. In that calculation, the concept of what is `reasonable' is nowhere mentioned, although the parties' financial needs - which have been construed to mean `reasonable requirements' - constitute one element to be considered. In an application under the Inheritance (Provision for Family and Dependants) Act 1975, however, the figure resulting from the section 25 exercise is merely one of the factors to which the court is to `have regard' and the overriding consideration is what is `reasonable' in all the circumstances. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court's attention."
Inheritance (Provision for Family and Dependants) Act 1975 2 - Matrimonial Causes Act 1973 25
1 Citers


 
First National Securities v Hegerty [1984] 3 WLR 769; [1984] 3 All ER 641
1984
CA
Stephenson LJ
Land, Family, Litigation Practice
The husband had forged his wife's signature on the loan application and on the charge of the house held by himself and his wife as joint tenants. He had left the country, and the plaintiff sought to enforce the charge, and ex parte obtained an order nisi charging the husband's interest in the house. The wife petitioned for divorce. The bank appealed the master's refusal to make the charging order absolute, and the High Court upheld the appeal and refused to allow the matter to transfer to the Family Division. Held: The wife's appeal failed. The judge had identified and considered the correct issues. The plaintiffs had not delayed their action, and had begun it before the divorce. Stephenson LJ said that the courts should not defeat claims from legitimate creditors by use of a matrimonial jurisdiction, though enforcement of a charging order might be deferred until any application under section 30 of the 1925 Act had been dealt with,
Law of Property Act 1925 30 - Matrimonial Causes Act 1973

 
Walker v Hall [1984] FLR 126
1984
CA
Lord Justice Lawton, Lord Justice Dillon, Lord Justice Kerr
Trusts, Family
The court considered the way of distributing property purchased by an unmarried couple: "When such a relationship comes to an end, just as with many divorced couples, there are likely to be disputes about the distribution of shared property. How are such disputes to be decided? They cannot be decided in the same way as similar disputes are decided when there has been a divorce. The courts have no jurisdiction to do so. They have to be decided in accordance with the law relating to property . . There is no special law relating to property shared by cohabitees any more than there is any special law relating to property used in common by partners or members of a club. The principles of law to be applied are clear, though sometimes their application to particular facts are difficult. In circumstances such as arose in this case the appropriate law is that of resulting trusts. If there is a resulting trust (and there was one in this case) the beneficiaries acquire by operation of law interests in the trust property. An interest in property which is the consequence of a legal process must be identifiable. It must be more than expectations which at some later date require to be valued by a court . ."
Dillon LJ: '. . . the law of trusts has concentrated on how the purchase money has been provided and it has consistently been held that where the purchase money for the property acquired by two or more persons in their joint names has been provided by those persons in unequal amounts, they will be beneficially entitled as between themselves in the proportions in which they provided the purchase money. This is the basic doctrine of the resulting trust and it is conveniently and cogently expounded by Lord Upjohn in Pettitt v Petitt [1970] AC 777 at p 814' and '. . . it is not open to this court, in my judgment, in the absence of specific evidence of the parties' intention, to hold that 33 Foxberry Road belongs beneficially to Mr Hall and Mrs Walker in equal shares, notwithstanding their unequal contributions to the purchase price, simply because it was bought to be their family home and they intended that their relationship should last for life. Equally it is not open to this court to 'top up' Mrs Walker's share, beyond what it would be on the mere basis of her financial contribution, on some broad notion of what would be fair simply because the house was bought as the family home; the court could no doubt do this in an appropriate case in proceedings under s.24 of the 1973 Act but the discretion under that section is not available in the present case.'
Matrimonial Proceedings and Property Act 1970 - Matrimonial Causes Act 1973
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O'Neill v Williams [1984] HLR 1
1984


Family, Housing

Domestic Violence and Matrimonial Proceedings Act 1976 1(2)
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Kapur v Kapur [1984] FLR 920; Times, 28 April 1984
1984
FD
Bush J
Family
The husband had petitioned for divorce. He came to England only in August 1981, and had only limited leave to stay. The court considered whether the court had jurisdiction. Held: There was no significant difference for this purpose between 'ordinary' and 'habitual' residence. The court had jurisdiction under the section.
Domicile and Matrimonial Proceedings Act 1973 5(2)
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 D v W; 1984 - (1984) 14 Fam Law 154
 
Re Callaghan, deceased [1985] Fam 1; [1984] 3 All ER 790
1984

Booth J
Family, Wills and Probate
An adult stepson of the deceased, who had been treated as a child of the family, was awarded a lump sum of £15,000 to enable him and his wife to avoid the burden of taking on a mortgage of £13,000 on the purchase of their council house at a most advantageous price. "I have to look at the circumstances of this particular case, and, having done so, I am left in no doubt whatever that the effect of the deceased's intestacy is such that it is unreasonable inasmuch as it makes no financial provision for the plaintiff's needs." and he made that provision by way of a lump sum: "That is the order which the plaintiff seeks, because he wishes to buy this house without the burden of a mortgage weighing upon him for the remainder of his working years. In my judgment that is a reasonable requirement for his maintenance." The claimant had demonstrated a need: "the decision to buy has been a difficult one for the plaintiff to make; without any capital behind him, he has been reluctant to commit himself to this expense. It will mean that he will have to service the mortgage for the remainder of his working life. But he has now decided to buy, regardless of the outcome of this application."
Inheritance (Provision for Family and dependants) Act 1975
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Singer (formerly Sharegin) v Sharegin [1984] FLR 114
1984

Cummin-Bruce LJ
Family, Costs
In family proceedings, the starting point for the award of costs is that they prima facie follow the event but that presumption may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court.
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Hall v Hall [1984] FLR 631
1984
CA

Family
After divorce proceedings had commenced, the wife visited the husband, then living with someone else, and stabbed him. She now appealed an order for maintenance reduced because of her conduct. Held: The conduct was clearly gross and obvious, and was separate from the general conduct within the marriage. The appeal failed.
Matrimonial Causes Act 1973 25
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Nicholas v Nicholas [1984] FLR 285
1984
CA
Cumming-Bruce and Dillon LJJ
Family, Company
The Court upheld an appeal against an order for the husband to procure the transfer to the wife of a property belonging to a company in which he held a 71% shareholding, the other 29% being held by his business associates. However, both members of the court suggested, obiter, that the result might have been different had it not been for the position of the minority shareholders.
Cumming-Bruce LJ thought that, in that situation: "the court does and will pierce the corporate veil and make an order which has the same effect as an order that would be made if the property was vested in the majority shareholder."
Dillon LJ said: "if the company was a one-man company and the alter ego of the husband, I would have no difficulty in holding that there was power to order a transfer of the property."
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Young v Young [1984] FLR 375
1984


Trusts, Family

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Regina v Birmingham Juvenile Court Ex Parte S [1984] 11 Fam 93
1984

Sir John Arnold P
Family
The court considered what was meant by the term 'household': "at the heart of the concept it is the persons who comprise the household . . . and not the place where the household is located as a matter of residence."
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