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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: 1995 To: 1995

This page lists 23 cases, and was prepared on 02 April 2018.


 
 F v F (Ancillary Relief: Substantial Assets); FD 1995 - Ind Summary, 26 February 1996; [1995] 2 FLR 45
 
Cornick v Cornick (No 2) [1995] 2 FLR 490
1995
FD
Hale J
Family
The court considered an application to vary an ancillary relief award and gave a wife more than the sum set out in the budget in circumstances where she had received a capital sum that, with hindsight, was far too low.
Hale J said: "Where such a dramatic change in the comparative wealth of the parties takes place very shortly after a capital settlement in divorce proceedings, it is not surprising that the disadvantaged party should want the settlement set aside in some way. But it is only possible to do this in very limited circumstances and it is important not to allow ones natural sympathy for the position in which the wife finds herself to colour the application of those principles to the facts of the particular case." and "There are three possible interpretations of a situation such as this. The first is that it is simply a change in the parties circumstances which has taken place since the order. This would not normally give rise to any case for reopening matters. The Matrimonial Causes Act 1973 does not allow for the variation of capital settlements, including lump sum orders save as to instalments. Capital settlements are by their nature intended to be final. They have to be based upon a snapshot taken at the time of trial. The court has to do its best with the evidence available to apply the considerations which the court has, under section 25 of the 1973 Act to take into account at the time. Under section 25(2)(a), these include the assets which each party has or is likely to have in the foreseeable future."
and "On analysis, therefore, there are three possible causes of a difference in the value of assets taken into account at the hearing, each coinciding with one of the three situations mentioned earlier:
(1) An asset which was taken into account and correctly valued at the date of the hearing changes value within a relatively short time owing to natural processes of price fluctuation. The court should not then manipulate the power to grant leave to appeal out of time to provide a disguised power of variation which Parliament has quite obviously and deliberately declined to enact.
(2) A wrong value was put upon that asset at the hearing, which had it been known about at the time would have led to a different order. Provided that it is not the fault of the person alleging the mistake, it is open to the court to give leave for the matter to be reopened. Although falling within the Barder principle it is more akin to the misrepresentation or non-disclosure cases than to Barder itself.,br />(3) Something unforeseen and unforeseeable had happened since the date of the hearing which has altered the value of the assets so dramatically as to bring about a substantial change in the balance of assets brought about by the order. Then, provided that the other three conditions are fulfilled, the Barder principle may apply. However, the circumstances in which this can happen are very few and far between. The case-law, taken as a whole, does not suggest that the natural processes of price fluctuation, whether in houses, shares or any other property, and however dramatic, fall within this principle.
In my judgment this case clearly falls within the first category. There was no misevaluation or mistake at the trial. Nothing has happened since then other than a natural albeit dramatic change in the value of the husband's shareholding. The wife's case amounts in effect to saying that it is all terribly unfair."
1 Cites

1 Citers


 
M v M [1995] 3 FCR 321
1995

Thorpe J
Family
The court considered the consequences of mis-disclosure in ancillary relief proceedings. Thorpe J said: "Conduct is only relevant in so far as the wife relies upon the manner in which the husband has conducted these proceedings. Ordinarily speaking, it seems to me that the manner in which proceedings are misconducted is to be reflected in orders for costs rather than directly in the scale of the awarded sum. However, this seems to me to be the exceptional case where the husband's strategy has been so extreme that it would be inequitable to disregard it. It seems to me that it is appropriate to look at the quantification of the wife's share not of what remains today but of what would remain today had that policy of waste and destruction not been pursued."
Matrimonial Causes Act 1989 25(2)(g)
1 Citers



 
 Morrow v Morrow; 1995 - [1995] NIJB 46
 
Cornick v Cornick (No 2) [1995] 2 FLR 490
2 Jan 1995
CA
Sir Stephen Brown P
Family
The court considered the boundary of its power in ordering periodical payments: "I do not believe that Hale J erred in her approach in principle to this case, and I reject the submission which Mr Mostyn has made that there was a delimiting factor (as he termed it) which should have had the effect of restricting a judge hearing an application for variation to what he termed the budgetary or marital standard."
1 Cites

1 Citers


 
Berkovits v Brinberg, Attorney General Intervening Independent, 24 January 1995; Times, 13 January 1995
13 Jan 1995
FD

Family
A 'Get' issued in London according to Judaic law against a wife resident in Israel, was not recognised as a decree of divorce in the UK.
Family Law Act 1986 45


 
 Practice Direction (Family Proceedings: Case Management); FD 31-Jan-1995 - Times, 08 February 1995
 
S v S (Family Proceedings: Reserved Costs Orders) Times, 23 February 1995; Ind Summary, 27 March 1995
23 Feb 1995
FD

Family, Costs
Judge may make an order for reserved costs even though this had not been requested at an earlier interlocutory hearing.

 
Practice Direction: Case Management (Family Division) Gazette, 01 March 1995
1 Mar 1995
FD

Family
Sets out substantial limits and new procedures applicable in Family Division.

 
Thomas v Thomas Independent, 04 May 1995; [1995] EWCA Civ 51; [1995] 2 FLR 668; [1996] 2 FCR 544; [1995] Fam Law 672
2 May 1995
CA
Waite LJ, Glidewell LJ
Family
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, putting more into pension funds for the directors. Held: The appeal failed. A judge may allow for the ability of other family members to assist on making a financial relief order. The court had been entitled on the evidence to "draw inferences as to the availability of funds to provide alternative security for the guarantee and for the Lloyds losses loan, and thus liberate the primary equity in the family home to provide a lump sum appropriate to the rehousing needs of the wife and children and of sufficient scale to justify shutting her out from any future capital relief."
Waite LJ said: "But certain principles emerge from the authorities. One is that the court is not obliged to limit its orders exclusively to resources of capital or income which are shown actually to exist. The availability of unidentified resources may, for example, be inferred from a spouse's expenditure or style of living, or from his inability or unwillingness to allow the complexity of his affairs to be penetrated with the precision necessary to ascertain his actual wealth or the degree of liquidity of his assets. Another is that where a spouse enjoys access to wealth but no absolute entitlement to it (as in the case, for example, of a beneficiary under a discretionary trust or someone who is dependent on the generosity of a relative), the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. Nor will it put upon a third party undue pressure to act in a way which will enhance the means of the maintaining spouse. This does not, however, mean that the court acts in total disregard of the potential availability of wealth from sources owned or administered by others. There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court's view of the justice of the case. There are bound to be instances where the boundary between improper pressure and judicious encouragement proves to be a fine one, and it will require attention to the particular circumstances of each case to see whether it has been crossed."
Matrimonial Causes Act 1973 25
1 Cites

[ Bailii ] - [ FLW ]
 
Whiston v Whiston Ind Summary, 08 May 1995; [1995] Fam 198
8 May 1995
CA
Ward, Henry and Russell LJJ
Family
A bigamist is unable to claim ancillary relief in the second marriage; would be against public policy. Since bigamy was a serious crime which undermined fundamental notions of monogamous marriage, the Court would not as a matter of public policy entertain an application for financial relief under the Matrimonial Causes Act 1973 from a person who had knowingly contracted a bigamous marriage since that would allow the bigamist to profit from her crime. Ward LJ echoed that bigamy is 'an outrage upon public decency by the profanation of a solemn ceremony' and "Where the criminal act undermines our fundamental notions of monogamous marriage I would be slow to allow a bigamist then to assert a claim, an entitlement at which she only arrives by reason of her offending. It is obviously proper that the Act of 1973 should afford the innocent party to a bigamous marriage relief. Where an applicant entered into another 'marriage' genuinely and reasonably believing he or she was free to do so, and was therefore innocent of the crime of bigamy, that person too may have an entitlement, though that is not the matter for us to consider today.
Today we have this respondent seeking to profit from the crime. Her claim derives from the crime. Without her having entered into this bigamous ceremony she would not have got to the judgment seat at all. She should now, in my judgment, be prevented from going any further."
Henry LJ: "This case falls squarely within the principle that as a matter of policy the court will not lend its aid to one who, to succeed, must found her claim on a criminal offence of sufficient gravity, as this crime of bigamy in my judgment was."
Russell LJ: "Bigamy is a crime which, of course, involves mens rea. There is no such person as an innocent bigamist. Bigamy, as opposed to mere cohabitation, strikes at the very heart of the institution of marriage. In these circumstances, the fact that this respondent has contracted a bigamous marriage would be a necessary foundation for her claim for financial relief under the Matrimonial Causes Act 1973.
For a litigant to have to rely upon his or her criminal behaviour in order to get a claim on its feet is, in my judgment, offensive to the public conscience and contrary to public policy."
Russell LJ: "Bigamy is a crime which, of course, involves mens rea. There is no such person as an innocent bigamist. Bigamy, as opposed to mere cohabitation, strikes at the very heart of the institution of marriage. In these circumstances, the fact that this respondent has contracted a bigamous marriage would be a necessary foundation for her claim for financial relief under the Matrimonial Causes Act 1973.
For a litigant to have to rely upon his or her criminal behaviour in order to get a claim on its feet is, in my judgment, offensive to the public conscience and contrary to public policy."
Matriminial Causes Act 1973 25(2)(g)
1 Citers


 
Manchanda v Manchanda Gazette, 14 June 1995; Ind Summary, 12 June 1995
14 Jun 1995
CA

Family
Decree absolute made early and without the necessary service on the Wife respondent was void not voidable.
Family Proceedings Rules 1991 2.50


 
 Brooks v Brooks; HL 29-Jun-1995 - Gazette, 06 September 1995; Independent, 04 July 1995; Times, 03 July 1995; [1996] AC 375; [1995] 2 FLR 13; [1995] UKHL 19; [1995] Fam Law 545; [1995] 3 All ER 257; [1995] 3 FCR 214; [1995] 3 WLR 141
 
Midland Bank Plc v Cooke and Another [1995] EWCA Civ 12; [1995] 2 FLR 915; [1996] 1 FCR 442; [1995] 4 All ER 562
7 Jul 1995
CA
Stuart Smith, Waite, Schiemann LJJ
Family, Trusts

1 Citers

[ Bailii ]

 
 McCann v Wright; CA 10-Jul-1995 - Times, 10 July 1995; Ind Summary, 17 July 1995; Gazette, 19 July 1995
 
Marya v Marya Ind Summary, 07 August 1995; Times, 25 July 1995
7 Aug 1995
CA

Family
An appeal against a district judge's grant of a decree nisi of divorce is to a county court judge, not the Court of Appeal.

 
Principal Registry of Family Division: Notice to Quit -Service On Public Trustee Gazette, 31 August 1995
31 Aug 1995
FD

Family
Rules now requiring service of notices on Public Trustee not FD President.

 
Beach v Beach Gazette, 15 November 1995; [1995] 2 FLR 160
15 Nov 1995
FD

Family
Note on cases where there had been separation agreements not supported by courts.

 
B v B (Production Appointment Procedure) Gazette, 29 November 1995; [1995] 1 FLR 913
29 Nov 1995
FD

Family
Application for production order to be made inter parties on affidavit.

 
D v D (Production Appointment) Gazette, 29 November 1995; [1995] 2 FLR 497
29 Nov 1995
FD
Thorpe J
Family
An accountant's professional privilege was overborne by the court, and a wider disclosure was approved. The court set a wide boundary around the scope of the documents which he was ordering the wife's accountant to produce: "If the boundary is set narrow, there is the risk that information as to the nature and extent of the [wife's] financial circumstances may be lost to the detriment of the husband and to the obstruction of the court in its duty to carry out the s.25 exercise as between the husband and the wife."
Matrimonial Causes Act 1973 825
1 Citers



 
 Drake v Whipp; CA 30-Nov-1995 - Times, 19 December 1995; [1996] 2 FCR 296; [1995] EWCA Civ 25; [1996] 2 FCR 296; (1996) 28 HLR 531; [1996] CLY 5780
 
Goodchild v Goodchild Times, 22 December 1995; Ind Summary, 08 January 1996; [1996] 1 WLR 694
13 Dec 1995
ChD
Carnwath J
Wills and Probate, Family
The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife. Held: The wills were in identical terms, but nevertheless, fell short of having full and explicit status as mutual wills. Even so they could still create a trust, with a like result. The court granted an order under section 2 of the 1975 Act on the ground that wife's mistaken belief that the terms of the wills were mutually binding imposed a moral obligation on the deceased. That constituted a special circumstance which exceptionally justified a claim by the son under the Act of 1975. "It is also clear from Birmingham v Renfrew .... that these cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust .... The principle of all these cases is that a court of equity will not permit a person to whom property is transferred by way of gift, but on the faith of an agreement or clear understanding that it is to be dealt with in a particular way for the benefit of a third person, to deal with that property inconsistently with that agreement or understanding." and 'the agreement or understanding must be such as to impose on the donee a legally binding obligation to deal with the property in the particular way and that the other two certainties, namely, those as to the subject matter of the trust and the persons intended to benefit under it, are as essential to this species of trust as they are to any other.'
Inheritance (Provision for Family and Dependants) Act 1975 - Wills Act 1837 18
1 Cites

1 Citers


 
Zyk v Zyk [1995] FamCA 135
15 Dec 1995

Nicholson CJ, Fogarty and Baker JJ
Family, Commonwealth
Austlii (Family Court of Australia) Property Settlement - Global or asset by asset approach - Treatment of lottery winnings The wife appealed against orders for the alteration of the property interests. The husband was aged 69 at trial, and the wife aged 63. The period of cohabitation was approximately 8 years.
The wife owned assets of a substantially higher value than did the husband at the date of marriage and some of the assets of each were retained at separation.
About two years after the marriage the husband had a lottery win of approximately $95,000. He had been involved in a syndicate prior to the marriage, and the wife had had no involvement in the lottery purchases but the winnings were used by the parties for joint purposes. During most of the marriage both parties worked and throughout shared income and expenses. His Honour treated the winnings as a contribution by the husband. Otherwise he treated their contributions as equal.
Taking that win into account as a contribution by the husband, his Honour assessed the parties' contributions arising from their initial contribution at 72/28 in the wife's favour, made a 2% adjustment to the husband for provision the wife had made for her children, a further 3% for contributions during marriage, and 2% for s.75(2) factors, arriving at a 65/35 division of the parties' assets in the wife's favour.
1 Citers

[ Austlii ]
 
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