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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: 1996 To: 1996

This page lists 39 cases, and was prepared on 02 April 2018.

 
Albert v Albert [1996] BPIR 233
1996

Millett LJ
Family, Insolvency
The court considered the duty of a family court when deciding ancillary relief applications where the husband is bankrupt. Millett LJ said: "The Family Division is concerned to ascertain the amount of the bankrupt's income and to decide how much of that income should be made available to maintain the wife and child. In making its determination it must ascertain the amount of the bankrupt's income as best it may, on the evidence put before it. But the amount of that income will be affected by any order that the Insolvency Court has made, or may subsequently make , which has the effect of diverting the bankrupt's income in or towards payment of his creditors. The Family Division is concerned with the division of the cake, but the size of the cake is liable to be diminished by an order made by the Insolvency Court."
1 Citers


 
Sanders v France 31401/96; (1996) 87 B-DR 160; [1996] ECHR 99
1996
ECHR

Human Rights, Family
A male Turkish national and a female French national, living together in Istanbul, complained of delays in obtaining a certificate of capacity to marry under French law. The issue as to the obtaining of a certificate related to (alleged) concerns about the prospective wife's mental capacity to marry, under section 175 of the French Civil Code. Held: "The Commission notes that, in the present case, the issue concerns substantive rules, the purpose of which is, inter alia, to preclude marriages of convenience between French citizens and aliens. It does not find this limitation, in itself, to be contrary to Article 12 of the Convention."
European Convention on Human Rights 12
1 Citers

[ Bailii ]
 
In re Mordant [1996] 1 FLR 334
1996
CA
Sir D Nicholls V-C
Family, Insolvency
The court discussed the interplay of family and insolvency proceedings: "Since the wife is unable to prove in the husband's bankruptcy, the position… is that the husband's trustee must use the £385,000 in paying the trustee's expenses and remuneration and, subject to that, he must distribute the money between the husband's creditors but excluding the wife. This would mean there would be a substantial surplus available to be returned to the husband. No doubt the wife could take steps to intercept the surplus. Even so, the result would be that the unsecured creditors would be paid in full, save for the wife. She would not receive the whole of the lump sum ordered by the judge. Indeed, far from even sharing equally with the husband's other creditors, she would rank behind them all. She would receive the crumbs from the husband's table left unconsumed by his other creditors. This is the consequence of r 12.3(2)(a) " and "I feel bound to say that the exclusion of an obligation to pay a lump sum arising under an order in family proceedings from proof as a debt in bankruptcy is a matter which would bear re-examination as a matter of urgency…"
1 Cites

1 Citers


 
Burgess v Burgess [1996] EWCA Civ 1304; (1997) 1 FLR 89; (1996) 2 FLR 34
7 Feb 1996
CA
Waite, Morritt LJJ
Family
Appeal from ancillary relief order.
[ Bailii ]
 
The Secretary of State for the Home Department, ex Parte Zackrocki [1996] EWCA Civ 1326
29 Mar 1996
CA

Immigration, Family

[ Bailii ]
 
Church Commissioners for England v Al-Emarah and Another Gazette, 12 June 1996; Times, 13 May 1996
13 May 1996
CA

Landlord and Tenant, Family
A wife being deemed to be the sole tenant took it subject to an existing possession order.
Rent Act 1977 1998 - Matrimonial Homes Act 1983 1

 
Krubert, Re Gazette, 17 July 1996; Times, 16 July 1996; [1997] Ch 96; [1996] EWCA Civ 1346
27 Jun 1996
CA
Nourse LJ, Cazalet J
Family, Wills and Probate
The beneficiaries under the will appealed against an order under the 1975 Act, effectively transferring the entire estate to the surviving spouse. Held: The effect of sections 1, 2 and the other material provisions of the 1975 Act is that on every application under it the court must ask itself two questions: first, has reasonable financial provision been made for the applicant; second, if not, what financial provision ought he or she to receive? Provision for deceased's wife were to be read to follow the Act and not necessarily as would occur on a divorce.
As to the two cases of Besterman and Moody: "
There had been confusion arising from the conflict of approach taken in Re Bestermann and in Moody v Stevenson. The case of re Besterman was to be preferred. The Recorder had made an error of principle: "While I fully appreciate that the question what is reasonable provision is not to be determined exclusively by the financial needs of the applicant, especially when he or she is a surviving spouse, it is a consideration which must be taken into account. Looking at the matter in the round, I think that if the deceased had made reasonable provision for Mrs. Krubert out of his other resources, it would have been reasonable for him to have left his brother and sister the reversionary interest in the house; conversely, it would not have been unreasonable for him only to have left Mrs. Krubert a life interest in it. Accordingly, to award her an absolute interest in the house and all but £14,000 of the other assets was in my judgment an error of principle on the recorder's part . . Having considering the question afresh, I think there is indeed a conflict between the two decisions, if only one of emphasis. However conflict of emphasis can often cause problems at first instance for busy district and circuit judges. Moreover we have some anecdotal evidence that the approach adopted in Moody -v- Stevenson may indeed have caused confusion at that level, especially in the cases of small estates. I can understand that, if only because on a divorce there are two parties to be provided for, whereas on an application under the (inheritance legislation) there is only one. In my view Oliver LJ's approach is preferable, being more in accordance with the intention of the Act when read as a whole. I think it should be adopted accordingly."
Inheritance (Provision for Family and Dependants) Act 1975
1 Cites

1 Citers

[ Bailii ]
 
Dart v Dart Gazette, 02 August 1996; [1997] 1 FCR 286; [1996] 2 FLR 286; [1996] Fam Law 607; [1996] EWCA Civ 1343
2 Jul 1996
CA
Butler-Sloss LJ, Thorpe LJ, Peter Gibson LJ
Family
A strictly mathematical approach to calculating ancillary relief can be inappropriate in large sum cases. The statutory jurisdiction has to provide for all applications for ancillary financial relief, from the poverty stricken to the multi-millionaire. Held: The court to reconcile existing practice wit the statute. Reasonable requirements are more extensive than needs. What a person requires is likely to be greater than what that person needs. The objective appraisal of what the applicant requires must have regard to the other criteria of the section, including what is available, the parties' accustomed standard of living, their age and state of health and 'perhaps less obviously' the duration of the marriage, contributions and pension rights: 'Used thus the consideration of needs ceases to be paramount or determinative but an elastic consideration that does not exclude the influence of any of the others. . . in a big money case where the wife has played an equal part in creating the family fortune it would not be unreasonable for her to require what might be even an equal share.' Other court members questioned the correctness of an approach which determines the quantum of an award by reference only to the reasonable requirements of the applicant. Butler-Sloss LJ: if spouses are in business together, the traditional 'reasonable requirements' approach to a wife's application for ancillary relief is not the most appropriate method to arrive at the post-divorce adjustment of family finances.
Matrimonial Causes Act 1973
1 Cites

1 Citers

[ Bailii ]
 
Dinah-Anne Baker v Colin Victor Baker [1996] EWCA Civ 538
26 Jul 1996
CA

Family

[ Bailii ]
 
Omielan v Omielan Times, 30 July 1996
30 Jul 1996
CA

Family
Power exists to vary a condition of sale of house on divorce but not the main order.
Matrimonial Homes and Property Act 1981

 
G v G [1996] EWCA Civ 548
30 Jul 1996
CA
Ward LJ
Family
Ancillary relief - variation.
[ Bailii ]
 
Jones v Jones Times, 17 October 1996; [1996] EWCA Civ 595
29 Aug 1996
CA

Family, Housing
A transfer of property application in divorce ancillary relief proceedings was properly affected by the Local Authority's housing policies.
Matrimonial Causes Act 1973 24
[ Bailii ]
 
Patricia Alberta Allcorn v John Charles Allcorn [1996] EWCA Civ 614
26 Sep 1996
CA

Family
Application for leave to appeal out of time - ancillary relief proceedings.
[ Bailii ]
 
Mcgladdery v Mcgladdery [1996] EWCA Civ 613
26 Sep 1996
CA

Family, Company
Implementation of ancillary relief order for transfer of shares in family company.
1 Cites

1 Citers


 
Practice Direction: (Ancillary Relief: Pilot Scheme) Times, 30 September 1996
30 Sep 1996
FD

Family
New pilot directions for procedures in ancillary relief applications - FDRs.


 
 Cobbett v Cobbett; CA 3-Oct-1996 - [1996] EWCA Civ 640
 
Flavell v Flavell [1997] Fam Law 237; [1996] EWCA Civ 649; [1997] 1 FLR 353
3 Oct 1996
CA
Beldam, Ward LJJ
Family
The Court considered the approach the Court to those orders for periodical payments following divorce which impose a term on the basis that, by the end of that term, the receiving party will have been able to adjust without undue hardship to the termination of financial dependence upon the paying party.
[ Bailii ]
 
Rose Ellen Lee v Patrick Joseph Curran [1996] EWCA Civ 656
3 Oct 1996
CA

Family, Children

[ Bailii ]
 
In the Matter of an Application for Leave To Move for Judicial Review: Regina v Luton and Bury St Edmunds County Court ex parte Stanley Gerard Thomas [1996] EWCA Civ 667
7 Oct 1996
CA

Family

Domestic Violence and Matrimonial Proceedings Act 1976
[ Bailii ]

 
 Regina v North Hertfordshire Magistrates Court ex parte Capponi; Admn 7-Oct-1996 - [1996] EWHC Admin 86
 
Re C (a Minor) [1996] EWCA Civ 735
15 Oct 1996
CA

Family
Short procedural judgment.
[ Bailii ]
 
Panton v Panton [1996] EWCA Civ 772
18 Oct 1996
CA

Family
Ancillary relief.
[ Bailii ]

 
 Regina v Petty Sessional Divisions of Slough and Windsor, ex parte Lindsay; Admn 24-Oct-1996 - Times, 14 November 1996; [1996] EWHC Admin 145
 
Stephanie Margaret Rowan (Formerly Cannon) v David John Cannon [1996] EWCA Civ 815
25 Oct 1996
CA

Family

[ Bailii ]
 
Tomlinson v Tomlinson [1996] EWCA Civ 806
25 Oct 1996
CA

Family
Appeal against ancillary relief order - allegation of disguised assets.
[ Bailii ]
 
McDonald v McDonald [1996] EWCA Civ 865
1 Nov 1996
CA

Family

[ Bailii ]
 
Thomas Joseph Billington and Edith Annie Warburton (As Executors of Edith Annie Billington) v Joan Elizabeth Blackshaw [1996] EWCA Civ 876
4 Nov 1996
CA

Family, Land

[ Bailii ]
 
Annick Tavoulareas v William Peter Tavoulareas; William Peter Tavoulareas v Annick Tavoulareas [1996] EWCA Civ 993
19 Nov 1996
CA

Family

1 Cites

1 Citers

[ Bailii ]
 
Annick Tavoulareas v William Peter Tavoulareas; William Peter Tavoulareas v Annick Tavoulareas (2) [1996] EWCA Civ 994; [1998] 2 FLR 418; [1999] 1 FCR 133; [1998] Fam Law 521
19 Nov 1996
CA

Family
Both husband and wife had independent means, and neither worked. The wife had spent £100,000k on Children Act proceedings, and sought ancillary relief. The judge had made an order on capital to reflect the fact that if those costs had not been spent W would have had the money available as capital. Held: Whilst the judge may have wrongly included the costs sum, he had at the same time undervalued W's income from investments. It was also said that the provision of a house under a trust was incompatible with the need for a clean break, as to which "I see no error of principle in selecting a settlement order for the provision of accommodation in a clean break case. Such a choice may be unusual and may need to be justified by exceptional features, but it is plainly within the ambit of judicial choice. " As to the misconduct of the proceedings alleged by H: "The criterion of conduct under Section 25 (2) (g) of the Act is clearly stated to be relevant if the court concludes that it would be inequitable to disregard it. But it does seem to me that a clear distinction must be drawn in all these cases between what might loosely be described as marital conduct and what might conveniently be described as litigation conduct. It seems to me as a matter of construction that Section 25 (2) (g) is plainly aimed at marital misconduct. If the applicant's misconduct is limited to misconduct within the ancillary relief case long after the separation of the parties, it is, in my judgment, questionable whether that factor should go to diminish the quantum of the financial award. " The judge should however have created a trust reverting to the child rather than a charge.
Matrimonial Causes Act 1973 25(2)(g)
1 Cites

1 Citers

[ Bailii ]
 
Sharon Martin v David Morris Martin [1996] EWCA Civ 1007
20 Nov 1996
CA

Contempt of Court, Family

[ Bailii ]
 
J v S T (Formerly J) [1996] EWCA Civ 1016; [1998] Fam 103
21 Nov 1996
CA

Family
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in court, but the plaintiff said that his wife had known the true position. He now appealed an order refusing him ancillary relief. The marriage was annulled. Held: The majority of the court refused to dismiss the applicant's ancillary relief claim on the public policy ground. "Although the power given to the Court under Section 25 of the Matrimonial Causes Act l973 gives the court the broadest discretion "in deciding whether to exercise its powers... and, if so, in what manner", we must, if we are strictly to answer the question posed in the preliminary issue, decide whether or not this claim is debarred on grounds that it is contrary to public policy.
It seems to me that the answer to the question whether the claim is tainted with turpitude depends not on whether the person against whom the claim is made will suffer disadvantage; but rather on whether there is a discernible public interest which will be damaged by the court's sanctioning the prosecution of the claim. " The court considered the nature of marriage and whether the claimants actions had done so much to undermine it as to disallow an action.
Perjury Act 1911 3 - Matrimonial Causes Act 1973
1 Cites

1 Citers

[ Bailii ]
 
S v S-T (Formerly J) Times, 25 November 1996; [1998] Fam 103; [1997] 3 WLR 1287
25 Nov 1996
CA
Ward and Potter LJJ and Sir Brian Neill
Family
The parties had gone through a form of marriage, but the purported husband was many years later revealed to be a female to male transsexual. The marriage had been annulled. There was now an application for ancillary relief. Held: Ancillary relief might be available to a trans-sexual whose marriage is annulled. The principle of public policy identified was not determinative, but on the facts, and in the light of Mr. J's conduct, no court could properly have exercised its discretion to grant him ancillary relief.
CS Potter LJ: "By s 11(c) of the 1973 Act, a marriage is void if the parties are not respectively male and female. It is plain that the use of the word 'marriage' in such a case is no more than convenient shorthand for a purported ceremony of marriage. . . . For the purpose of determining whether a particular human being is of a particular sex, the criteria are biological: see Corbett v Corbett (orse Ashley) [1970] 2 All ER 33 at 48, [1971] P 83 at 106 and Rees v UK (1985) 7 EHRR 429 (App 9532/81), (1986) 9 EHRR 56 and Cossey v UK (1990) 13 EHRR 622. While it may be that the advance of medical science may lead to a shift in the criteria applied by the English courts, it is plain that at present, the position is that laid down in Corbett v Corbett and that, even in jurisdictions which have extended the criteria in the case of transsexuals, a 'female to male' transsexual is not generally regarded as having satisfied the criteria of masculinity unless endowed (by surgery or otherwise) with apparent male genitalia. In those circumstances it is also plain that the defendant was well advised not to defend the suit for nullity brought against him by the plaintiff.
However, although a marriage void for the reason that the two parties are of the same sex is not merely a void but a meretricious marriage which cannot give rise to anything remotely matrimonial in character, this has not historically prevented a party from seeking a decree of nullity in respect of it."
Ward LJ (dissenting) took the view that the principle of public policy that no one should profit from their own wrong applied. He also commented on the fact that they had received fertility treatment together: "The apparent ease with which they were able to obtain this treatment without the truth being disclosed or discovered is, for me, one of the puzzling and, I feel bound to add, unsatisfactory features of the case." and
"It is suggested that the Act has made a subtle but perhaps important change to the terminology. What governed Ormrod J's decision in Corbett's case, based as it was on ecclesiastical principles, was whether the parties were " a man and a woman". It may be - but I express no view about it - that the choice "male and female" has left the way open for a future court, relying on the developments of medical knowledge, to place greater emphasis on gender than on sex in deciding whether a person is to be regarded as male or female. There is a body of very respectable academic opinion making that point: see, for example, Cretney and Masson Principles of Family Law, 5th ed (1990) pp 46-48; S Poulter "The Definition of marriage in English Law" (1979) 42 M.L.R. 409, 421-425 and A. Bradney, "Transsexuals and the Law" [1987] Fam. Law 350."
Sir Brian Neill said: "It is not necessary for the purpose of this appeal to consider whether the decision of Ormrod J in Corbett v Corbett ... requires re-examination in the light of modern medical advances and in the light of decisions in other jurisdictions, or whether it is distinguishable because the words used in section 11(c) of the Act of 1973 are 'male' and 'female' which, I suppose, it might be argued, indicate a test of gender rather than sex."
Matrimonial Causes Act 1973 25(1)
1 Cites

1 Citers


 
Regina v St Albans and Mid-Hertfordshire Magistrates' Court ex parte Whittlesea [1996] EWHC Admin 286
27 Nov 1996
Admn

Family

[ Bailii ]

 
 Lightbody (Or Jacques) v Jacques; HL 28-Nov-1996 - Times, 06 December 1996; [1996] UKHL 2; [1997] Fam Law 395; 1997 SC (HL) 20; [1997] 1 FLR 748
 
Kelley v Matthei, Kelley v Matthei [1996] EWCA Civ 1055
28 Nov 1996
CA

Family

[ Bailii ]
 
A Blyth v A G Blyth [1996] EWCA Civ 1107
5 Dec 1996
CA

Family, Costs
Appeal against garnishee order.
[ Bailii ]
 
Michael Anthony Butler v Griselda Elizabeth Butler [1996] EWCA Civ 1116
5 Dec 1996
CA

Family

1 Citers

[ Bailii ]
 
C v C [1996] EWCA Civ 1226
17 Dec 1996
CA

Family

[ Bailii ]
 
Curtis v Hernandez [1996] EWCA Civ 1288
24 Dec 1996
CA
Lord Justice Swinton Thomas And Lord Justice Thorpe
Family
The respondent appealed an order for possession following an order under the 1983 Act. The house had been bought, and a sale had been agreed. He complained that the sale price was too low, but the equity was very small on any calculation. His right of occupation had been terminated by the order. Held: The judge had a wide discretion, and the order was within that range.
Matrimonial Homes Act 1983 81(1)
[ Bailii ]
 
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