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















Family - From: 1985 To: 1989

This page lists 49 cases, and was prepared on 02 April 2018.

 
Attar v Attar (No 2) [1985] FLR 653
1985


Family

1 Citers



 
 Jenkins v Livesey (formerly Jenkins); HL 1985 - [1985] AC 424; [1984] UKHL 3; [1985] FLR 813; [1985] 1 All ER 106; [1985] 2 WLR 47
 
Stead v Stead [1985] FLR 16
1985


Family, Wills and Probate
The court declined to award a widow a large capital sum from her husband's estate.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers


 
Lewis v Lewis [1985] AC 828
1985
HL

Housing, Family
The House considered the position of a statutory tenant under the 1977 Act, when application was made under the 1967 Act.
Matrimonial Homes Act 1967 Sch2 3(1) - Rent Act 1977
1 Citers


 
Vasey v Vasey [1985] FLR 596; [1985] 15 Fam Law 158
1985
CA

Family, Magistrates
The wife had deserted her husband. The magistrates reduced her maintenance saying that her behaviour was gross and obvious. Held: Her appeal was upheld. The magistrates should have first made findings on each element listed in 3(1) and only then balance those factors so as to make an order which was just and reasonable in all the circumstances. The most important function was finding the balance between needs and resources. Only if conduct was exceptional should it weigh in the balance. The court should be reluctant to make judgments about the behaviour of one party without hearing as to the entire conduct of both parties during the marriage.
Domestic Proceedings and Magistrates Courts Act 1978 2 3(1)
1 Citers



 
 Leadbeater v Leadbeater; 1985 - [1985] FLR 789
 
In re Royce (Deceased) [1985] Ch 22
1985


Family, Wills and Probate
The court considerd an application under the 1975 Act where the claimant had been convicted of the manslaughter of her husband with a finding of diminished responsibility, and was the sole beneficiary under his will. The Forfeiture Act 1982 was not yet in effect. Held: The claim was struck out as disclosing no reasonable cause of action and the appeal against that order was dismissed. Reasonable financial provision would have been made by the will, and therefore s1 and 2 of the 1975 Act precluded her application. In any event the rule against benefitting from a criminal act prevented an order.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers


 
Lawrence v Lawrence (1985) FLR 1097
1985


Family
Exceptionally the court may look at the capacity of a party to marry in a particular jursidiction by reference to the intended family home rather than the ante-nuptial domicile.
1 Citers


 
Thyssen-Bornemisza v Thyssen-Bornemisza (No 2) [1985] FLR 1069
1985

Sir John Arnold P
Family

1 Citers



 
 Chaudhary v Chaudhary; 1985 - [1985] FLR 476; [1985] Fam 19
 
Lynch v Lynch [1985] UKPC 10
21 Mar 1985
PC

Family
(Trinidad and Tobago)
[ Bailii ]
 
Abdulaziz, Cabales And Balkandali v United Kingdom 9473/81; [1985] ECHR 7; 9214/80; 9474/81; (1985) 7 EHRR 471
28 May 1985
ECHR

Human Rights, Immigration, Family
The claimants had each settled within the UK in accordance with Immigration rules, but now challenged refusal of leave to remain to their husbands who sought to join them. Held: Article 8 did not impose a "general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country".
"Whatever else the word 'family' may mean, it must at any rate include the relationship that arises from a lawful and genuine marriage . . even if a family life . . has not yet been fully established".

European Convention on Human Rights 3 8
1 Citers

[ Bailii ]

 
 Abdulaziz etc v The United Kingdom; ECHR 28-May-1985 - 9214/80; 9473/81; 9474/80; (1985) 7 EHRR 471; [1985] ECHR 7
 
S v S [1986] 1 FLR 71; [1986] 3 WLR 518
1986
FD
Waite J
Family
Both parties sought a variation of a maintenance order. The former husband sought to be allowed to pay a sufficient capital sum to his former wife to commute the payment in her favour. Held: Provided the sum could be paid and the result would not prejudice the arrangements for the children the variation sought by the husband should be made. The court should allow a clean break where possible.
Matrimonial Causes Act 1973 31(7) - Matrimonial and Family Proceedings Act 1984 6
1 Citers


 
Layton v Martin [1986] 2 FLR 227
1986

Scott J
Wills and Probate, Family
The deceased had written to the Plaintiff offering her "what emotional security I can give, plus financial security during my life, and financial security on my death." Held: The statement could was insufficient to establish either a constructive trust or a proprietary estoppel. Scott J said: "The proprietary estoppel line of cases are concerned with the question whether an owner of a property can, by insisting on his strict legal rights therein, defeat an expectation of an interest in that property, it being an expectation which he has raised by his conduct and which has been relied on by the Claimant The question does not arise otherwise than in connection with some asset in respect of which it has been represented, or is alleged to have been represented, that the Claimant is to have some interest... A representation that "financial security" would be provided by the deceased to the Plaintiff . . is not a representation that she is to have some equitable or legal interest in any particular asset or assets."
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers


 
Harman v Glencross [1986] Fam 81; [1986] 2 FLR 241
1986

Balcombe LJ
Family, Trusts
On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H's interest. She sought its varation. The creditor said that there was little point in this since any transfer in her favour would be void against the husband's trustee in bankruptcy under section 42. Held: The decision in In Re Holliday was very much against the run of recent authorities. Balcombe LJ rejected the creitor's suggestion saying: "the wife gave up her claim for periodical payments, and it seems to me that this constituted valuable consideration on her part which would preclude a trustee in bankruptcy of the husband from maintaining that the transfer of property order was void as against him – see Re Abbott [1983] Ch 45."
Bankruptcy Act 1914 42
1 Cites

1 Citers


 
Grant v Edwards and Edwards [1986] 1 Ch 638; [1986] 2 All ER 426; [1986] 3 WLR 114; [1986] EWCA Civ 4; [1986] Fam Law 300; [1987] 1 FLR 87
24 Mar 1986
CA
Nourse LJ, Sir Nicolas Browne-Wilkinson V-C, Mustill LJ
Trusts, Family
A couple were not married but lived together in a house in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names was because she was involved in divorce proceedings and that, if the property were acquired jointly, this might operate to her prejudice in those proceedings. The title was in the defendants’ names with no express evidence of agreement her to have a beneficial interest. She had to establish a common intention acted upon by her, that she should have a beneficial interest. Equity would then not allow the defendant to deny that interest and would construct a trust to give effect to it. Two matters were need for a constructive trust. A common intention that each should have a beneficial interest. Without express words intention can be inferred from circumstances. The claimant has acted to his detriment on the basis of that common intention, with a sufficient link between the common intention and the conduct relied upon. This requires there to have been conduct on which the claimant could not reasonably have been expected to embark unless he was to have an interest in the property. (Browne-Wilkinson): "I suggest that in other cases of this kind, useful guidance may in the future be obtained from the principles underlying the law of proprietary estoppel which in my judgment are closely akin to those laid down in Gissing v Gissing [1971] A.C. 886. In both, the claimant must to the knowledge of the legal owner have acted in the belief that the claimant has or will obtain an interest in the property. In both, the claimant must have acted to his or her detriment in reliance on such belief. In both, equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. The two principles have been developed separately without cross-fertilisation between them: but they rest on the same foundation and have on all other matters reached the same conclusions."
Mustill LJ said: "(1) The law does not recognise a concept of family property, whereby people who live together in a settled relationship ipso facto share the rights of ownership in the assets acquired and used for the purposes of their life together. Nor does the law acknowledge that by the mere fact of doing work on the asset of one party to the relationship the other party will acquire a beneficial interest in that asset.
(2) The question whether one party to the relationship acquires rights to property the legal title to which is vested in the other party must be answered in terms of the existing law of trusts. There are no special doctrines of equity, applicable in this field alone.
(3) In a case such as the present the inquiry must proceed in two stages. First, by considering whether something happened between the parties in the nature of bargain, promise or tacit common intention, at the time of the acquisition. Second, if the answer is "Yes," by asking whether the claimant subsequently conducted herself in a manner which was (a) detrimental to herself, and (b) referable to whatever happened on acquisition. (I use the expression "on acquisition" for simplicity. In fact, the event happening between the parties which, if followed by the relevant type of conduct on the part of the claimant, can lead to the creation of an interest in the claimant, may itself occur after acquisition. The beneficial interests may change in the course of the relationship.)
(4) For present purposes, the event happening on acquisition may take one of the following shapes. (a) An express bargain whereby the proprietor promises the claimant an interest in the property, in return for an explicit undertaking by the claimant to act in a certain way. (b) An express but incomplete bargain whereby the proprietor promises the claimant an interest in the property, on the basis that the claimant will do something in return. The parties do not themselves make explicit what the claimant is to do. The court therefore has to complete the bargain for them by means of implication, when it comes to decide whether the proprietor's promise has been matched by conduct falling within whatever undertaking the claimant must be taken to have given sub silentio. (c) An explicit promise by the proprietor that the claimant will have an interest in the property, unaccompanied by any express or tacit agreement as to a quid pro quo. (d) A common intention, not made explicit, to the effect that the claimant will have an interest in the property, if she subsequently acts in a particular way.
(5) In order to decide whether the subsequent conduct of the claimant serves to complete the beneficial interest which has been explicitly or tacitly promised to her the court must decide whether the conduct is referable to the bargain, promise or intention. Whether the conduct satisfies this test will depend upon the nature of the conduct, and of the bargain, promise or intention.
(6) Thus, if the situation falls into category (a) above, the only question is whether the claimant's conduct is of the type explicitly promised. It is immaterial whether it takes the shape of a contribution to the cost of acquiring the property, or is of a quite different character."
Mustill LJ continued: "(7) The position is the same in relation to situations (b) and (d). No doubt it will often be easier in practice to infer that the quid pro quo was intended to take the shape of a financial or other contribution to the cost of acquisition or of improvement, but this need not always be so. Whatever the court decides the quid pro quo to have been, it will suffice if the claimant has furnished it.
(8) In considering whether there was a bargain or common intention, so as to bring the case within categories (b) and (d) and, if there was one, what were its terms, the court must look at the true state of affairs on acquisition. It must not impute to the parties a bargain which they never made, or a common intention which they never possessed.
(9) The conduct of the parties, and in particular of the claimant, after the acquisition may provide material from which the court can infer the existence of an explicit bargain, or a common intention, and also the terms of such a bargain or intention. Examining the subsequent conduct of the parties to see whether an inference can be made as to a bargain or intention is quite different from examining the conduct of the claimant to see whether it amounts to compliance with a bargain or intention which has been proved in some other way. (If this distinction is not observed, there is a risk of circularity. If the claimant's conduct is too readily assumed to be explicable only by the existence of a bargain, she will always be able to say that her side of the bargain has been performed.)"
1 Cites

1 Citers

[ Bailii ]
 
State of The Netherlands v Reed R-59/85; [1986] EUECJ R-59/85; [1987] 2 CMLR 448; [1986] ECR 1283
17 Apr 1986
ECJ

Family
1. Article 10(1) of regulation no 1612/68 cannot be interpreted as meaning that the companion, in a stable relationship, of a worker who is a national of a member state and is employed in the territory of another member state must in certain circumstances be treated as his 'spouse' for the purposes of that provision.
2. The possibility for a migrant worker of obtaining permission for his unmarried companion to reside with him, where that companion is not a national of the host member state, can assist his integration in the host state and thus contribute to the achievement of freedom of movement for workers. Consequently, that possibility must be regarded as falling within the concept of a social advantage for the purposes of article 7(2) of Regulation no 1612/68.
It must therefore be concluded that a member state which grants such an advantage to its own nationals cannot refuse to grant it to workers who are nationals of other member states without being guilty of discrimination on grounds of nationality, contrary to articles 7 and 48 of the treaty.
[ Bailii ]
 
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
30 Apr 1986

Brennan J
Litigation Practice, Commonwealth, Family
The parties disputed a settlement of property on divorce, and on appeal the court had to consider how it should approach a judgment made at the discretion of the judge at first instance. Held. After citing Bellendon, Brennan J added: "The 'generous ambit within which reasonable disagreement is possible' is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference."
1 Cites

[ Austlii ]

 
 Suter v Suter and Jones; CA 19-Dec-1986 - [1987] Fam 111; [1987] 3 WLR 9; [1987] 2 All ER 336; (1987) 151 JP 593; [1987] 2 FLR 232; [1987] Fam Law 239 ; (1987) 151 JPN 174; (1987) 84 LSG 1142; (1987) 131 SJ 471; [1986] EWCA Civ 7
 
In re S (Minors) (Wardship: Police Investigation); Re S (Minors) (Wardship: Disclosure of Material) [1988] 1 FLR 1; [1987] Fam 199
1987
FD
Booth J
Family, Children
Local authority case records and a verbatim extract from the case records which had been exhibited to an affidavit from a social worker had been disclosed. Held: Booth J asked as to the case records: "whether the words in the section "information relating to proceedings" should be construed to cover documents which do not themselves form part of the evidence but which contain information upon which evidence was based" She held not: "I am satisfied that so far as the case records do not relate to matters which were placed in evidence before the court, there could be no basis upon which the court could, or should, give the local authority any directions as to their use . . I have been less clear as to the position with regard to those case records upon which evidence placed before the court was based, although they do not of themselves form part of that evidence. Undoubtedly, such records continue to be protected from disclosure by reason of the principle of public interest immunity: see In re S. and W. (Minors) (Confidential Reports) (1983) 4 FLR 290. Although the court has the statutory right and duty to protect a child by means of its control over information relating to proceedings heard in private, this must be balanced against the right of the local authority to preserve the confidentiality of its records and thereby to control access to them.
Since confidentiality in the records could not be considered to have been waived by reason only of the fact that they have been relied upon as the foundation for the social workers' evidence, I have come to the conclusion that those records also do not fall within the ambit of section 12(1) of the Administration of Justice Act 1960. To come to the contrary decision could have the effect of placing an unrealistic fetter upon the local authority in the course of their day-to-day use of their records".
As to the verbatim extract from the affidavit: "So it is still necessary to seek directions from the court whenever it is proposed to take a major step in the lives of the wards.
In my judgment, the disclosure to the police of the medical records and recordings for the purpose of criminal investigations falls into this category of decision . . the effect of granting the application could be far reaching. Indeed, the result of it could lead to the direct involvement of the ward in criminal proceedings, a fact which could be regarded as detrimental to his or her interests. It is, therefore, clearly a step of considerable importance in the life of any child. Similarly, if the police are to interview and conduct medical examinations of the wards then leave of the court must first be given. Such medical examinations do not have a therapeutic purpose, but a forensic purpose and, as in the case of the disclosure of the medical records and the video recordings, they may lead to the wards' direct involvement in subsequent proceedings. But if leave is given for the disclosure of those records and video recordings it seems to me that it must follow that leave must also be given to the police to conduct interviews with and, if necessary, examinations of, the wards. Having enabled the police to start upon an inquiry it would not be realistic, save in exceptional and presently unforeseen circumstances, to impose such limits upon them."
And: "In my judgment, a distinction must be made with regard to the verbatim extract from the case records, which in this case was exhibited to an affidavit made by a social worker. This exhibit was disclosed and filed by the local authority as part of its evidence to the court. Confidentiality in respect of this part of the case records has clearly been waived. The exhibit undoubtedly contains information relating to the proceedings since it constitutes a part of the evidence. I am satisfied that for this reason the extract of the case records comes within the ambit of section 12(1) of the Administration of Justice Act 1960 and that its publication is precluded without leave of the court."
Administration of Justice Act 1960 12
1 Citers



 
 Barder v Barder (Caluori Intervening); CA 1987 - [1987] 2 FLR 480

 
 Barder v Calouri; HL 1987 - [1988] AC 20; [1987] 2 WLR 1350; [1988] Fam Law 18; [1987] 2 All ER 440

 
 Duxbury v Duxbury; CA 1987 - [1992] Fam 62; [1987] 1 FLR 7; [1991] 3 WLR 639

 
 Barder v Caluori; HL 2-Jan-1987 - [1988] AC 20; [1987] 2 All ER 440; [1987] 2 WLR 1350; [1988] Fam Law 18
 
Kyte v Kyte [1988] Fam 145; [1987] 3 WLR 1114; [1987] 3 All ER 1041; [1988] FCR 325; [1988] Fam Law 86; (1988) 152 JPN 223; (1987) 84 LSG 3529
22 Jul 1987
CA
Purchas, Nicholls and Russell LJJ
Family
The parties disputed an ancillary relief claim on their divorce. The husband had been suicidally depressed. The wife had committed adultery over a long time and also assisted her husband's failed suicide. The husband now sought to rely upon her behaviour, saying it would be inequitable to ignore it. Held: The husband's appeal was allowed. The court was obliged to consider the behaviour of both parties. The wife's deceit had been motivated by gain, and it would be wrong to ignore it. Referring to section 23(2)(g) (Purchas LJ): 'The section refers to "the conduct of each of the parties" and this must relate to relevant conduct and does not envisage one or the other being blameless. . . .The court is entitled, in my judgment, to look at the whole of the picture, including the conduct during the marriage and after the marriage which may or may not have contributed to the breakdown of the marriage or which in some other way makes it inequitable to ignore the conduct of each of the parties. A clear example of such a case is where the parties may each not have been blameless (almost inevitably in a normal marriage) but where the imbalance of conduct one way or other would make it inequitable to ignore the comparative conduct of the parties".
"The conduct of the wife not only in actively assisting or, alternatively, taking no steps to prevent the husband's attempts at suicide in the presence of the motive of gain which the registrar found on ample evidence to be established, together with her wholly deceitful conduct in relation to her association with Gregory, would amount to conduct of a gross and obvious kind which would have fallen within the concept under the old law and, in my judgment, could certainly render it inequitable to ignore it even against the conduct of the husband which contributed to the unhappy conditions which existed during the marriage and afterwards as a result of the husband's manic depression." W's lump sum was reduced accordingly.
Matrimonial Causes Act 1973 25(2)(g) - Matrimonial and Family Proceedings Act 1984 3
1 Cites


 
Buffery v Buffery [1988] 2 FLR 365; [1987] EWCA Civ 4
30 Nov 1987
CA
May LJ, Ewbank J
Family
The court considered a petition for divorce beased upon unreasonable behaviour. The Wife petitioner appealed from the decision dismissing her petition for the dissolution of her marriage to the respondent. Held: After discussing O'Neill: "one looks to this husband and this wife, or vice versa, but one also looks at what is reasonable. That is the point referred to by Roskill LJ in his judgment in the same case at p 1125, where he adopted as correct the test which Dunn J had applied in the Livingstone-Stallard case. And again referring to O'Neill: "That, in effect, is proposing precisely the same test as referred to by Cairns LJ quoting from Rayden. One considers a right-thinking person looking at the particular husband and wife and asks whether the one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities of the two parties concerned. That, it will readily be appreciated, is a substantially different test from that applied by the recorder in directing himself in the instant case."
May LJ said: "the gravity or otherwise of the conduct complained of is of itself immaterial. What has to be asked, as will appear from the judgment in O'Neill, is whether the behaviour is such that the petitioner cannot reasonably be expected to live with the respondent."
Matrimonial Causes Act 1973 1(2)(b)
1 Cites

1 Citers

[ Bailii ]
 
Regina v Immigration Appeal Tribunal Ex parte Tohur Ali [1988] 2 FLR 523; [1988] Imm AR 237; [1988] Fam Law 289
18 Dec 1987
CA
May, Balcombe, Woolf LJJ
Immigration, Family
The Court considered rule 50 under which "parent" was defined as including - "an adoptive parent, where there has been a genuine transfer of parental responsibility on the ground of the original parents' inability to care for the child . . " Held: (a majority) This expression was not confined to adoption under a "legally recognizable adoptive process".
Immigration Rules 50
1 Citers

[ Refworld ]

 
 F v Switzerland; ECHR 18-Dec-1987 - (1987) 10 EHRR 411; 11329/85; [1987] ECHR 32
 
Re F (In Utero) [1988] (Fam) 122
1988


Family
A foetus prior to the moment of birth does not have independent rights or interests.
1 Citers


 
de Dampierre v de Dampierre [1988] 1 AC 92
1988
HL
Lord Goff
Jurisdiction, Family
The existence and state of foreign proceedings are relevant to the exercise of the court's discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition is if the court, as Lord Goff said, "is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of the parties and for the ends of justice."
1 Citers


 
Campbell v Campbell [1988] 1 FLR 828
1988

Thorpe J
Family
Thorpe J said: "It has never been the custom in ancillary relief litigation to look with scrupulous care at the budget items of the prospective payer. Of course, it is incumbent on the judge to cross check to ensure that the adjudication that meets the applicant's needs is an adjudication which the respondent can afford. But that essential task the judge specifically performed as is plain from the passage which I have already cited."
1 Citers


 
Boylan v Boylan [1988] 1 FLR 282
1988


Family

1 Citers


 
Barder v Barder; Barder v Caluori [1988] AC 20; [1987] 2 All ER 440; [1987] 2 WLR 1350; [1988] Fam Law 18
1988
HL
Lord Brandon
Litigation Practice, Family
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the wife committed suicide. The husband applied for leave to appeal. Held: The House described the conditions for appealing an order made by consent. A consent order in an ancillary relief case could be set aside on the ground that there had been a supervening event which had led to such a change of circumstances as to undermine or invalidate the basis of the consent order: "new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed . . the new events should have occurred within a relatively short time of the order having been made . . the application for leave to appeal out of time should be made reasonably promptly and third parties should not be adversely affected." Lord Brandon reviewed the case law and said: "I would state the conclusions to which I think that these authorities lead in this way. First, there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it. The passage in the judgment of Shearman J. in Maconochie v. Maconochie [1916] P. 326, 328, in which he stated that such a general rule existed, cannot be supported. Secondly, it is unhelpful, in cases of the kind under discussion, to refer to abatement at all. The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken. Thirdly, the answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third. The first matter is the nature of the further proceedings sought to be taken. The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both. The third matter is the applicability of section 1(1) of the Act of 1934."
1 Cites

1 Citers


 
Turton v Turton [1988] Ch 542
1988
CA
Lord Justice Nourse
Trusts, Family
When ascertaining the beneficial interests in a family home purchased by an unmarried couple, those interests had to be ascertained from consideration of the intentions of the parties at the time of the purchase; they were not to be left for determination in the light of subsequent events. Referring to Walker v Hall, Nourse LJ: "It is thus made clear that Dillon and Lawton LJJ were of the opinion that a beneficial interest acquired under an application of the principles stated in Gissing v Gissing can only be an absolute and indefeasible interest. It cannot be one which is liable to determine or to be defeated or diminished – either automatically or by the exercise of some discretion – on the happening of some future event, for example the separation of an unmarried couple who were living together at the time of its acquisition. The validity of that proposition is in my judgment beyond doubt. It must always be remembered that the basis on which the court proceeds is a common intention, usually to be inferred from the conduct of the parties, that the claimant is to have a beneficial interest in the house. In the common case where the intention can be inferred only from the respective contributions, either initial or under a mortgage, to the cost of its acquisition it is held that the house belongs to the parties beneficially in proportions corresponding to those contributions. . . ." Lord Justice Kerr: ". . . once the court had found the existence of a constructive or implied trust whereby the beneficial rights to the property belonged to the parties in whatever shares the court determined, then the necessary consequence was the recognition by the court of rights which are proprietary in their nature and which lie wholly outside the exercise of any discretionary powers. That was made clear, inter alia, in Gissing v Gissing [1971] AC 886."
1 Cites

1 Citers


 
Hemain v Hemain [1988] 2 FLR 388
1988


Family, Litigation Practice
The court confirmed its the power to grant a temporary injunction restraining the party from pursuing proceedings in a foreign jurisdiction to prevent that party from obtaining unfair advantage. The injunction would typically preserve the status quo pending an application or trial.
1 Citers


 
Passee v Passee [1988] 1 FLR 263
1988


Trusts, Family

1 Citers


 
McTaggart v McTaggart (1988) FLC 91-920
1988

Mullane J
Commonwealth, Family
The court was asked as to the treatment of a lottery win on a divorce. Held: The prize was a windfall enuring to the benefit of both parties. Mullane J said: "My view is that these arguments are misconceived. The $500,000 was a windfall. It is nothing more. It was not the fruit of some labour or skill of the husband. It was not a contribution by him to the matrimonial property. The courts have declined to recognise windfalls during the marriage as contributions by one of the parties . . I do not accept that the lottery winnings should be treated as a contribution by either party. I do not accept that they should be treated differently to any other matrimonial property acquired by the parties during the marriage."
1 Citers


 
Patel v Patel [1988] 2 FLR 179
1988
CA
Waterhouse J, May LJ
Torts - Other, Family
An exclusion zone order had been removed from an injunction granted to a father-in-law against his son-in-law. May LJ observed that an injunction 'can only be an appropriate remedy where an actual tortious act has been or is likely to be committed'. Waterhouse J said that 'in the present state of the law there is no tort of harassment'.
1 Citers



 
 B v B; 1988 - [1988] 2 FLR 490
 
Re Bramwell (Deceased) and Campbell v Tobin and Another [1988] 2 FLR 263
1988
FD
Sheldon J
Family
The court considered the effect on an ancillary relief claim where one pary died: "In these circumstances, in my judgment, it is clear – as has been recognized and acknowledged without recorded dissent for over 40 years – that in matrimonial proceedings a claim for financial provision neither gives rise to nor becomes a 'cause of action' within s. 1(1) of the 1934 Act unless an order has been made in respect of it before the death of the deceased: until such an order has been made, therefore, in remains a mere hope or contingency which survives neither against nor for the benefit of the deceased's estate."
1 Citers



 
 Kemmis v Kemmis (Welland and Others Intervening); CA 1988 - [1988] 1 WLR 1307; [1988] 2 FLR 223
 
The Attorney General (ex rel The Society for the Protection of Unborn Children Ireland Ltd) v Open Door Counselling Ltd and Dublin Wellwoman Centre Ltd [1988] IR 592
1988

Hamilton P
Family
(High Court in Ireland) Hamilton P said: "Sections 58 and 59 of the Offences Against the Person Act 1861 protected and protect the foetus in the womb and having regard to the omission of the words "Quick with child" which were contained in the statute of 1803 . . that protection dates from conception. Consequently, the right to life of the foetus, the unborn, is afforded statutory protection from the date of its conception."
Offences against the Person Act 1861
1 Citers


 
Berrehab v The Netherlands [1988] ECHR 14; 10730/84; [1988] ECHR 14
21 Jun 1988
ECHR

Human Rights, Family
Family life arises ipso jure as between father and child where the child was conceived in wedlock
1 Citers

[ Bailii ] - [ Bailii ]

 
 Fisher v Fisher; CA 21-Dec-1988 - [1988] EWCA Civ 4; [1989] 1 FLR 423; [1989] FCR 308

 
 Holmes v Holmes; CA 1989 - [1989] Fam 47
 
Browne v Browne [1989] 1 FLR 291
1989
CA
Butler-Sloss LJ
Family, Trusts
The court considered under what circumstances money held in trust for a party could be included within assets to be considered in an application for ancillary relief in family proceedings. Held: The question is more appropriately expressed as whether the spouse has "immediate access to the funds" of the trust than "effective control" over it.
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Mansour v Mansour [1989] 1 FLR 418
1989
CA
Sir John Donaldson MR
Litigation Practice, Family


 
Gaskin v The United Kingdom 10454/83; [1990] 1 FLR 167; [1989] ECHR 13; (1989) 12 EHRR 36
7 Jul 1989
ECHR
R Ryssdal, P
Human Rights, Family, Information
The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied. Held: The refusal to allow him access to his records involved a breach of his rights under Article 8, because there was no independent mechanism for determining whether or not access should be permitted where the consent of third party contributors could not be obtained. The Court emphasised the need for specific justification for preventing individuals from having access to information which forms part of their private and family life. Relationships between children and foster parents or carers fall within the definition of "family" within the meaning of Article 8.
The Court rejected any claim under article 10 "in the circumstances of the case" for essentially the same reason as it had in Leander, which it followed.
However, the court rejected a submission that Article 10 provided the applicant with a right of access to social services care records concerning periods of his childhood spent in foster care, saying: "The Court holds, as it did in Leander v. Sweden, that 'the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.' Also in the circumstances of this case, Article 10 does not embody an obligation on the State concerned to impart the information in question to the individual.
There has thus been no interference with Mr Gaskin's right to receive information as protected by Article 10."
European Convention on Human Rights 8 10
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