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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: 1991 To: 1991

This page lists 11 cases, and was prepared on 02 April 2018.

 
Shipman v Shipman [1991] 1 FLR 250
1991
FD
Lincoln J
Family
W sought an order under s37 of the 1973 Act restraining H in divorce proceedings from disposing of or dealing with $300,000, or one half of his severance pay, whichever was the greater, pending determination of the ancillary relief proceedings. Held: The terms of s37 had not been satisfied. But, relying on Roche, it was wrong to believe that "there is no longer any inherent jurisdiction to freeze assets which may be put beyond the reach of the applicant." Lincoln J further held: "Counsel for the husband urges me to have regard to the many restrictions and safeguards surrounding the use of worldwide Mareva injunctions, and to assimilate the use of, and procedure for, injunctions in the Family Division to those in commercial Law. In my view the matrimonial field calls for a different approach. To my mind the circumstances here call for the injunction to continue. If it were discharged, the husband could well change his intentions, however genuine and well-disposed to the wife his present state of mind may be. Both he and the assets are out of the jurisdiction. Left without a job, and with new responsibilities, he will be faced with a temptation to eat into the whole of the fund."
Matrimonial Causes Act 1973 37
1 Cites

1 Citers


 
Thompson v Thompson [1991] 2 FLR 530
1991
CA

Family

1 Citers


 
Hedges v Hedges [1991] 1 FLR 196
1991
CA

Family
The parties were middle aged, without children and the marriage was of short duration. W had worked throughout. H lived in tied accomodation, but had purchased a property as an investment and safeguard if he should lose the tied accomodation. W appealed an order providing periodical payments for 18 months and a small lump sum order. Held: W's appeal failed. W's position had not been reduced as a consequence of the marriage. H's purchase of the property had been prudent, but should be taken into account. Even so W was not entitled to such a sum by way of periodical payments as would allow her to finance a mortgage long term. The pension prospects of H were too remote to be taken account of.
Matrimonial Cause Act 1973 25 25A
1 Citers


 
Peacock v Peacock [1991] FCR 121
1991
FD
Thorpe J
Family
The court considered its ability to vary a consent order, made in 1982 on the divorce, which provided for the sale of the matrimonial home ten years later in 1992 and for the equal division of the proceeds of sale. Periodical payments were to be made to the wife and the two children who remained in the home. In 1984 the parties agreed for the husband to transfer his interest to her, but they were not ad idem because he believed that she was releasing him from all future payments not only to her but also to the children, whereas the wife understood that she would lose only her own periodical payments. When that dispute arose, the husband applied to vary the periodical payments and the wife sought specific performance of the promise to transfer the house. Her claim was transferred to the Family Division. Held: Thorpe J said: “the first conclusion at which I have arrived is that the Chancery proceedings were misconceived. All the issues between the parties related to the 1982 consent order, its implementation, and its possible variations. The fundamental, but not exclusive, consideration for any transfer of the husband's interest in the home was the wife's abandonment of her right to claim periodical payments. The implementation of that fundamental consideration would have involved the dismissal of her claim to periodical payments and her rights to claim under the Inheritance (Provision for Family and Dependants) Act 1975.
It is beyond question that such orders are not made simply upon evidence of the applicant’s consent. The court has an overriding duty to survey the sufficiency of the proposed consideration and the overall fairness of the orders proposed. Accordingly, the wife should have brought the disputed compromise before the Edmonton County Court.
In my judgment the issue of proceedings in Chancery by the wife's advisors in reaction served only to complicate an already complicated issue, to delay an adjudication from which the parties might hope to look with satisfaction for its fairness and finality, and to increase substantially the costs for a family that is not in a position to afford any waste. Nor could Chancery proceedings ever have achieved any practical advantage for the wife. How could the court order specific performance of one side of the bargain, when the plaintiff was not able to perform her side of the bargain without the concurrence of another court having completed a wide-ranging review?
In my judgment, this is, and always has been, an issue that could only be litigated within the suit. Effective jurisdiction remained exclusively in the Edmonton County Court until the suit was transferred to the Family Division. Accordingly I do not intend to grant any relief to the wife within the Chancery proceedings."
1 Citers



 
 Harwood v Harwood; CA 1991 - [1991] 1 FLR 274
 
Practice Direction (Duties and Functions of the Official Solicitor) [1991] FLR 471
1991


Family, Litigation Practice

1 Citers


 
Smith v Smith [1992] Fam 69; [1991] 2 All ER 306
20 Feb 1991
CA

Family
The wife committed suicide six months after the ancillary relief order. The husband sought to re-open out of time the ancillary relief order and to reclaim the sum paid from the estate. Held: Where an ancillary relief order came to be reconsidered because its basis had been undermined by supervening events, the court should look again at the issues, but as they stood at the time of the order. The ultimate destination of a deceased's estate was not a proper consideration. Taking all matters into account the order was varied to reduce the lump sum payable.
Matrimonial Causes Act 1973 25(2)
1 Citers


 
Gojkovic v Gojkovic (No 2) [1991] 2 FLR 233; [1992] Fam 40; Times, 01 May 1991; [1992] 1 All ER 267
1 Apr 1991
CA
Butler-Sloss LJ, Russell LJ
Family, Costs
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of £600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump sum of £1 million. The judge made no order as to costs after the date when the wife's solicitors had rejected an earlier, lower, offer by the husband. From that date both sides had acted reasonably. The wife appealed. No counter-offer had been made by the wife. Held: The starting point, is that costs prima facie follow the event but in family cases this rule may be displaced more easily, and it is unusual to order costs in children cases. For financial relief the applicant has to make the application in order to obtain an order. Orders by consent; usually include the applicant's costs. If contested and the applicant succeeds, where money available and no special factors, the applicant spouse is likely to obtain an order for costs. The behaviour of one party, such as in material non-disclosure of documents, may be a material factor. In some few cases the assets are substantial and an order for costs can (if appropriate) be made. The court rules reflect the need for Calderbank offers, subject to conditions, to have teeth. The respondent must make a serious offer worthy of consideration. If he does so, the applicant should accept or reject the offer and make clear any counter-offer. Both should negotiate. There is a very wide discretion in the court in awarding costs. Many reasons may affect costs including material non-disclosure, and delay or excessive zeal. The need to use all the available money to house the spouse and children of the family may be constraints. It would be inappropriate to constrain that wide of discretion. But the starting point in a case where there has been an offer is that, prima facie, if the applicant receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. "I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case prima facie costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that prima facie position."
Russell LJ: "In his opening submissions to this court, counsel for the husband invited us to lay down guidelines which would, he said, be of assistance to those charged with the responsibility of deciding what, after divorce, is the appropriate level of lump sum payments in cases where very substantial capital assets are available. I do not think that such an exercise is possible. The guidelines already exist. Section 23 of the Matrimonial Causes Act 1973 is the enabling provision for an order for the payment of a lump sum. Section 25, as amended by the Matrimonial and Family Proceedings Act 1984, in terms, requires the court to have regard to all the circumstances of the case and subsection (2), under no less than eight sub-paragraphs, sets out the matters to which the court in particular shall have regard.
In the individual case, some of those matters will assume greater importance than others and, indeed, the facts of this case well illustrate that proposition. In my judgment in this case we are concerned with a wholly exceptional set of circumstances ……"
1 Cites

1 Citers


 
Moody v Stevenson [1992] Ch 486; [1992] 2 WLR 640; [1992] 2 All ER 524; Independent, 17 September 1991; Times, 30 July 1991
12 Jul 1991
CA
Mustill LJ and Waite J
Wills and Probate, Family
The widower aged 81, appealed against refusal of provision under the 1975 Act from his wife's estate. She had left him nothing. The judge at first instance had found, applying Styler, that her treatment was not unreasonable, and that therefore no jurisdiction to make an award arose. Held: The court considered the application of section 3(2): "and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce."
Waite J said: "The objective is that the acceptable minimum posthumous provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse in the deceased's lifetime by virtue of his or her prospective entitlement under the matrimonial law." and "In other words the Act of 1975, when stripped down to its barest terms, amounts to a direction to the judge to ask himself in surviving spouses cases: `What would a family judge have ordered for this couple if divorce instead of death had divided them; what is the effect of any other section 3 factors of which I have not taken account already in answering that question; and what, in the light of those two inquiries, am I to make of the reasonableness, when viewed objectively, of the dispositions made by the will and/or intestacy of the deceased?' If the judge finds those dispositions unreasonable, he will go on to ask himself: `What, in the light of those same inquiries, would be a reasonable provision for me to order for the applicant under section 2?'" and "The starting point when fixing an appropriate provision under section 2 of the Act will, as already explained, be a consideration of the presumed entitlement of the husband under a notional divorce." In this case, the result was an order permitting him to continue to occupy the house.
Inheritance (Provision for Family and Dependants) Act 1975 3(2)
1 Cites

1 Citers



 
 Birch v Birch; CA 22-Oct-1991 - [1991] EWCA Civ 5; [1992] Fam Law 290; [1992] 2 FCR 545; [1992] 1 FLR 564

 
 Regina v R; HL 23-Oct-1991 - [1991] 4 All ER 481; [1992] 1 AC 599; [1990] UKHL 9; [1991] UKHL 12; [1991] UKHL 14; (1992) 94 Cr App R 216; (1991) 155 JPN 752; [1992] 1 FLR 217; [1991] 3 WLR 767; (1991) 155 JP 989; [1992] Crim LR 207; [1992] Fam Law 108
 
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