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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: 2003 To: 2003

This page lists 34 cases, and was prepared on 02 April 2018.

 
A v S (Financial Relief after Overseas US Divorce) [2003] 1 FLR 431
2003


Family, International

1 Citers


 
J v V (Disclosure: Offshore Corporations) [2004] 1 FLR 1042; [2003] EWHC 3110 (Fam)
2003
FD
Coleridge J
Family, Litigation Practice
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considerd the use of documents recovered by a party by unauthorised or improper means. He said: "The use of Hildebrand documents in English ancillary relief proceedings is perfectly permissible subject to certain conditions as to early revelation to the party who owns the documents. When that general point is added to the fact that, absent these documents, the picture of the husband's finances would be even more incomplete in a number of crucial respects than it is anyway, I find [the wife's] conduct entirely understandable, justified and above criticism. I should not have hesitated to criticise her and her lawyers if I had felt they had over-stepped the mark."
As to costs, Coleridge J said: "If clients 'duck and weave' over months or years to avoid coming clean they cannot expect much sympathy when it comes to the question of paying the costs of the enquiry which inevitably follows. And that is so whatever the outcome eventually is and whatever offers have been made before final determination. Applicants cannot be properly and fully advised about the merits of offers by their lawyers unless the disclosure is full . . and frank; all the cards must be put on the table face up at the earliest stage if huge costs bills are to be avoided."
Coleridge also commented on the readiness of the courts to deal with overcomplicated financial structures: "these sophisticated offshore structures are very familiar nowadays to the judiciary who have to try them. They neither impress, intimidate, nor fool any one. The courts have lived with them for years."
1 Cites

1 Citers


 
Mubarak v Mubarik [2003] 2 FLR 553
2003

Hughes J
Family
The court was asked as to whether the expression "in the possession of" in RSC Ord.48 extended to documents not physically held by the judgment debtor but to sight of which he has a clear and enforceable right. Held. The expression did so extend. However he did not have such a right in this case. "that a director could not be taken to have had possession of company documents even if he had an enforceable right to them"
1 Cites

1 Citers


 
M v M [2003] EWHC (Fam) 2410
2003

Bennett J
Family
The court considered how to treat periodical payments in a settlement of an ancillary relief claim where a clean break was not possible and where the husband had a substantial income.
1 Citers


 
McMinn v McMinn [2003] 2 FLR 823
2003

Black J
Family
A section 27 claim cannot be pursued by a surviving spouse. Black J said: "It is clearly established that until an ancillary relief order has been made, an ancillary relief claim is not a cause of action. This appears to be because of the discretionary nature of ancillary relief, someone seeking ancillary relief may establish the fact of marriage, the grant of a decree nisi and a number of factors which would be relevant to the court's decision as to what if any ancillary relief orders should be granted but is reliant for relief upon an exercise of the court's discretionary powers. Until those discretionary powers have been exercised he has no cause of action". A claim for ancillary relief does not constitute a cause of action for the purposes of section 1(1) of the 1934 Act.
Matrimonial Causes Act 1973 27 - Law Reform (Miscellaneous Provisions) Act 1934 1(1)
1 Citers


 
K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120
2003
FD
R Hayward Smith QC sitting as Deputy High Court Judge
Family
The court set out out a serious of questions to be considered in determining whether or not to uphold the terms of a prenuptial agreement: "I distill from the authorities the following questions, which I ask myself in determining the issue whether as against the wife the agreement is binding or influential in any of the decisions I have to make.
1. Did she understand the agreement?
2. Was she properly advised as to its terms?
3. Did the husband put her under any pressure to sign?
4. Was there full disclosure?
5. Was the wife under any other pressure?
6. Did she willingly sign the agreement?
7. Did the husband exploit a dominant position, either financially or otherwise?
8. Was the agreement entered into in the knowledge that there would be a child?
9. Has any unforeseen circumstance arisen since the agreement was made that would make it unjust to hold the parties to it?
10. What does the agreement mean?
11. Does the agreement preclude an order for periodical payments for the wife?
12. Are there any grounds for concluding that an injustice would be done by holding the parties to the terms of the agreement?
13. Is the agreement one of the circumstances of the case to be considered?"
1 Citers



 
 G v G (Maintenance Pending Suit: Costs); FD 2003 - (2003) 2 FCR 339
 
Regina (R and Others, Minors) v Children and Family Court Advisory and Support Service; Regina (P, a Minor) v Same Times, 24 January 2003; Gazette, 20 March 2003
17 Jan 2003
QBD
Charles J
Children, Family
The Act established the respondent (Cafcass) with a duty to provide officers to take appointment as guardian's in proceedings involving children. Complaint was made that they did not provide such officers immediately upon request. Held: The point applied to all situations where the Service was called upon to provide an officer. The argument advanced that Cafcass was under a duty to provide an officer immediately upon notification from the court was not supported in the statute. Immediate appointments were not necessary or efficient. The general rule was that no particular time was implied from the statute. However here Cafcass had agreed that one should be made available as soon as possible given its financial resources.
Criminal Justice and Court Services Act 2000 12

 
Darke v Strout [2003] EWCA Civ 176
28 Jan 2003
CA

Family, Contract, Child Support
Abstention in exercising of a statutory right to apply for child maintenance may afford sufficient consideration to support a compromise of a contractual claim.
1 Citers

[ Bailii ]
 
Wermuth v Wermuth Times, 07 February 2003; [2003] EWCA Civ 50; [2003] 1 WLR 942
4 Feb 2003
CA
Thorpe, Latham, LJJ, Lawrence Collins J
Family, Jurisdiction, European
The husband had commenced proceedings for divorce in Germany. The husband was German, and the wife became German upon the marriage, but they had lived in London. The wife was second to issue, beginning proceedings in London. The district judge recorded the parties' agreement that the German court should be seized, save of article 12 matters. The wife obtained an ancillary relief maintenance order, which the husband now appealed. Held: The maintenance order was an unwarranted invasion of the jurisdiction of the German court. It was not protective, and nor was the case urgent. Brussels II has no direct application to ancillary relief claims. It was wrong for an English court to seek to usurp the Convention. Substantial sums had been spent on legal costs unnecessarily in London.
Council Regulation No 1347/2000/EC (OJ 2000 L160/19) 12
[ Bailii ]
 
George v George [2003] EWCA Civ 202
4 Feb 2003
CA

Family
Ancillary relief
[ Bailii ]
 
In re R (Parental responsibility: IVF baby) [2003] EWCA Civ 182; Gazette, 03 April 2003; [2003] 2 All ER 131; [2003] Fam 129
19 Feb 2003
CA
Sir Andrew Morritt VC, Hale, Dyson LJJ
Family, Children
The mother and father of the child were not married, but had consented to the terms of their infertility treatment. The father donated his sperm, but the mother was only inseminated after they had separated. The mother appealed a declaration of paternity. Held: The Act clearly provided that the embryo was created at the time the fertilised embryo was placed in the womb. The time at issue under the Act was whether the act was 'in the course of treatment services provided for her and a man together'. In this case, at that time, the father and mother were not together, and the biological father was not to be treated as the legal father.
Human Fertilisation and Embryology Act 1990 28(3) - Children Act 1989 4(1)(a) 10(4)
1 Cites

1 Citers


 
AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B [2003] EWHC 259 (QB); Gazette, 01 May 2003; [2003] 1 FLR 1091
26 Feb 2003
QBD
The President
Family, Health, Human Rights
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration. Held: Section 28 did not confer paternity. The mistake vitiated whatever consents had been given, and the concept under the Act of 'treatment together'. Any interference with the right to family life was proportionate and necessary.
Family Law Act 1986 55A - Human Fertilisation and Embryology Act 1990 28 29
1 Cites

1 Citers

[ Bailii ]
 
Corbett v Corbett [2003] EWCA Civ 559
28 Feb 2003
CA
Lord Justice Dyson, Mr Justice Gibbs
Family
After an order had been made for periodical payments to the wife, the former husband entered into a new relationship, but began to get in financial difficulties, and arrears. Over the course of time, he did not make effective disclosure of his finances. He failed to apply to vary the order, and the wife issued a judgment summons, which led to an order for imprisonment (suspended) of the husband under the Act. Held. The court had first to decide on the need for any variation before it could know whether the 1869 Act could bite. The procedure set down in Mubarak had not been followed and the appeal succeeded.
Debtors Act 1869
1 Cites

[ Bailii ]

 
 M v L; FD 28-Feb-2003 - [2003] EWHC 328 (Fam); [2003] Fam Law 563; [2003] 2 FLR 425
 
GW v RW (Financial Provision: Departure from Equality) [2003] EWHC 611 (Fam); [2003] Fam Law 386; [2003] 2 FLR 108; [2003] 2 FCR 289
18 Mar 2003
FD
Mostyn QC J
Costs, Family
An entitlement to an equal division must reflect not only the parties' respective contributions 'but also an accrual over time', and it would be 'fundamentally unfair' that a party who has made domestic contributions during a marriage of 12 years should be awarded the same proportion of the assets as a party who has made the domestic contributions for more than 20 years.
Mostyn QC J said: "[Foley] . . is now nearly 22 years old. The case of White v White has emphasised that the law in this area is not moribund but must move to reflect changing social values. I cannot imagine anyone nowadays seriously stigmatising pre-marital cohabitation as 'living in sin' or lacking the quality of emotional commitment assumed in marriage. Thus, in my judgment, where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently. On the other hand, if it is found that the pre-marital cohabitation was on the basis of a trial period to see if there was any basis for later marriage then I would be of the view that it would not be right to include it as part of the 'duration of the marriage'. This was the finding made in the recent case of F v F (unreported) 14 January 2003 by Hartmann J in the High Court of Hong Kong, which decision contains some valuable insights on this and other aspects of the law of ancillary relief. There is no basis for such a finding in this case, and I therefore include the 18 months of pre-marital cohabitation here as part of the 'duration of the marriage'
and "I do not shrink from saying that this is a difficult issue. The logic deployed by Mr. Pointer has obvious force. But on the other hand it seems to me that to adopt it requires me to put a blue pencil straight through the statutory criterion of the duration of the marriage. The failure of the judge in L v L (Financial Provision: Contributions) [2002] 1 FLR 642 (Lambert) to give sufficient weight to this factor was specifically criticised by the Court of Appeal. It seems to me that the assumption of equal value of contribution is very obvious where the marriage is over 20 years. For shorter periods the assumption seems to me to be more problematic. I am not attracted to a formulaic solution, as suggested by John Eekelaar, but I do in essence accept his proposition that the entitlement to an equal division must reflect not only the parties' respective contributions but also an accrual over time".
Family Proceedings (Amendment No 2) Rules 1999 (1999 No 3491) 2.69B - Matrimonial Causes Act 1973 23
1 Citers

[ Bailii ]
 
Rose v Rose [2003] EWHC 505 (Fam)
20 Mar 2003
FD

Family
Appeal against ancillary relief order by consent on divorce.
1 Cites

[ Bailii ]

 
 Bellinger v Bellinger; HL 10-Apr-2003 - [2003] UKHL 21; Times, 11 April 2003; [2003] 2 AC 467; [2003] 2 All ER 593; [2003] Fam Law 485; 14 BHRC 127; [2003] 2 WLR 1174; 72 BMLR 147; [2003] 2 FCR 1; [2003] HRLR 22; [2003] 1 FLR 1043; [2003] UKHRR 679; [2003] ACD 74
 
Regina (K) v Lambeth London Borough Council Times, 14 May 2003
16 Apr 2003
QBD
Silber J
Benefits, Family, Immigration
The applicant sought payment of benefits. She was an asylum seeker but had married after arrival. It seemed to be a marriage of convenience, and had been deemed such by the Home Secretary for the purposes of her intended repatriation. Held: Family law recognised no status of a marriage of convenience. She was deemed to be properly, married, and the rules aplied on that basis. As a dependent asylum seeker she was not entitled to benefits unless refusal would constitute an infringement of her human rights.
National Immigration and Asylum Act 2002 54

 
Foster v Foster [2003] EWCA Civ 565; Times, 02 May 2003; Gazette, 03 July 2003; [2003] 2 FLR 299
16 Apr 2003
CA
Peter Gibson, Chadwick, Hale LJJ
Family
The marriage had been short, there were no children, both parties were working, and each could support themselves providing themselves with accomodation. The wife had successfully appealed a finding of the district judge for an equal distribution. The husband sought to restore it. Held: The district judge's findings were not so wrong (if at all) as to have allowed the appeal by the wife. The principles on such appeals were now the same as for any other appeal. There were no special principle to be applied in short marriages. In considering the contributions made, the court could include not only direct financial contributions, but also the parts played in acquiring and realising assets, and the fact that each had done what they could. The court should always return to and work from the words of the section. Reasons for departing from equal shares were not present here, and the original judgement was restored.
Matrimonial Causes Act 1973 25(2)(d) 25(2)(f)
1 Cites

1 Citers

[ Bailii ]
 
White v White [2003] EWCA Civ 924
19 May 2003
CA
Lord Justice Thorpe, Lady Justice Arden, Mr Justice Bodey
Family, Trusts, Children, Land
The parties to the marriage owned a property which they had extended. The relationship deteriorated, and the mother sought an order under the 1996 Act. The mother left the home, and the father cared for the children. He sought orders under the 1989 Act for the transfer of the property. Those proceedings were made subject to the current proceedings. Held: Sensible case management demands that competing applications be conjoined. The current order was wrong in principle. When the court looked at the intentions of the parties under a trust, it should look to the time before the trust, not from time to time later. The powers under each Act are not co-extensive. Unless for some special reason the application should be under both Acts and the exercise of the powers under each Act should be considered by the same court and at the same time.
Trusts of Land and Appointment of Trustees Act 1996 14 - Children Act 1989 Sch1
1 Citers

[ Bailii ]
 
Roy Green v Vivia Green [2003] UKPC 39
20 May 2003
PC
Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Millett, Lord Rodger of Earlsferry
Commonwealth, Family
PC (Jamaica) The claimant sought a declaration that he was entitled to one half of the marriage assets on divorce. They had each acquired various properties and assets both in Jamaica and the USA. The judge at first instance had found for an equal share, and he now appealed a finding on appeal that he was entitled only to a one third share. Held: An appellate court must interfere in a judge's finding only if he was clearly in error. That could not be shown here, and te judge's order was restored.
1 Cites

[ Bailii ] - [ PC ]
 
In re P (Child: Financial Provision) Times, 24 July 2003; Gazette, 04 September 2003; [2003] 2 FLR 865
24 Jun 2003
CA
Thorpe, May LJJ, Bodey J
Child Support, Family
The court considered the amount of an allowance to be provided to a parent which would, on divorce, take care of a child of the family in a moderate to high income case. Held: The carer would not themselves be entitled to an allowance personally, but only in his or her capacity as carer. The exercise was one of discretion, involving a broad commonsense approach. It can be easier to decide first what was to happen to any capital sum with a view to providing a home. A balance had then to be found between competing principles. The carer was not herself entitled to an allowance but would inevitably make sacrifices. The carer should be allowed a budget which reflected her position and that of the father, both social and financial.
1 Citers


 
Pearce v Pearce [2003] EWCA Civ 1054; Times, 01 September 2003; [2003] 3 FLR 1144; [2004] 1 WLR 68
28 Jul 2003
CA
The President, Lord Justice Thorpe, And Lord Justice Mantell
Family, Child Support
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an order finalising the arrangements. Held: The judge should have restricted himself to capitalisation of the increased periodical payments order and abstained from the addition of a substantial uplift. He should not have allowed the wife to discharge her mortgage at the husband's expense, which violates the principle that capital claims once compromised could not be revisited. There is simply no power or discretion to embark on further adjustment of capital to reflect the outcome of unwise or unfortunate investment on one side or prudent or lucky investment on the other.
Thorpe LJ said: "Both as a matter of principle and as a matter of good practice, in my opinion the judge had to decide three questions in the following sequence. First he had to decide what variation to make in the order for periodical payments agreed in 1997. An increase was inevitable given inflation and the husband's overall increased prosperity despite the decline in his income. The judge's second task was to fix the date from which the increased order was to commence. That would dispose of the past and present account between the parties. Then, and only then, should he have moved to the future, substituting a capital payment calculated in accordance with the Duxbury tables for the income stream that he was terminating.
Of course I do not seek to put the trial judge in a straitjacket. He exercises a broad discretion at the first stage. Equally at the third stage he exercises a discretion, albeit a narrower one, in departing from the mathematics of the Duxbury tables to reflect special factors which individual cases will regularly generate."
Matrimonial Causes Act 1973 31(7B)
1 Cites

1 Citers

[ Bailii ]
 
Norris v Norris, Haskins v Haskins [2003] EWCA Civ 1084; Times, 26 August 2003
28 Jul 2003
CA
Dame Butler Sloss, Thorpe and Mantell LJJ
Family, Costs
The court considered how orders for costs were to be made in 'big money' cases. Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range of circumstances of each case. The court required a full discretion, and that should be retained. When looking at Calderbank offers, the court could make fuller use of the provisions of the 1999 Rules, GW -v- RW needs rethinking, and the rules should be amended.
Family Proceedings (Amendment No 2) Rules 1999 (1999 No 3491) 2.69B - Civil Procedure Rules 44.3
1 Cites

1 Citers

[ Bailii ]
 
L v G [2003] EWCA Civ 1458
18 Sep 2003
CA

Family

[ Bailii ]
 
Franklyn Dailey v Harriet Dailey [2003] UKPC 65
2 Oct 2003
PC
Lord Hope of Craighead, Lord Clyde, Lord Hutton, Sir Andrew Leggatt, Sir Philip Otton
Family, Commonwealth, Undue Influence
PC (British Virgin Islands) The husband and wife had developed a business together. Transfers between the parties had taken place and there were suspicions about misappropriation of money. Held: The relationship of husband and wife does not, as a matter of law, raise a presumption of undue influence. The trial judge was here entitled to hold that the transaction was at arm's length, and the wife could not set it aside. The husband had failed to establish his claim that the respondent had taken money from this account for her own use. The amount which he took from the account fell to be divided between the parties equally.
1 Cites

[ PC ] - [ Bailii ]
 
P v P (Ancillary Relief: Proceeds of Crime) [2003] EWHC 2260 (Fam); Times, 14 October 2003; Gazette, 16 October 2003; [2004] Fam 1
8 Oct 2003
FD
Dame Elizabeth Butler-Sloss
Legal Professions, Criminal Practice, Family, Litigation Practice
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief proceedings, the parties legal representatives concluded that some part of the matrimonial assets might represent the proceeds of crime. If they succeeded in obtaining part of the assets for their client they would commit an offence. They disclosed their concerns but were refused permission to disclose their own disclosure. Held: The representatives had a duty to disclose their concerns to the authorities, but if it was necessary to disclose the tip off for the proceedings and it formed no part of any criminal purpose, they could disclose the tipping off to the other party. The Act envisaged permission to a party to make authorised disclosures. The ambit of the Act was wider than for earlier provisions, and might affect many proceedings. Negotiations could be affected just as much as any actual transfer. The Act makes no distinction between degrees of criminal property. An illegally obtained sum of £10 is no less susceptible to the definition of "criminal property" than a sum of £1million.
Proceeds of Crime Act 2002 333(4)
1 Cites

1 Citers

[ Bailii ]
 
W v W [2003] EWHC 2254 (Fam)
9 Oct 2003
FD

Family
Ancillary relief - need for honesty accuracy and openness in completion of form E.
[ Bailii ]
 
Sherwin v Sherwin [2003] EWCA Civ 1726
12 Nov 2003
CA

Contempt of Court, Family

[ Bailii ]
 
Fleming v Fleming [2003] EWCA Civ 1841; [2004] 1 FLR 667
17 Nov 2003
CA

Family
An application for extension of a periodical payments order made for a finite period the applicant must surmount a high threshold.
Matrimonial Causes Act 1973
1 Citers

[ Bailii ]
 
Graham v Graham and Another [2003] NIfam 14
3 Dec 2003
FdNI

Family

[ Bailii ]

 
 Currey v Currey; CA 8-Dec-2003 - [2003] EWCA Civ 1974; Times, 26 November 2004
 
Lomas v Parle [2003] EWCA Civ 1804; Times, 13 January 2004; [2004] 1 All ER 1173; [2004] 1 FLR 812
18 Dec 2003
CA
The President Of The Family Division Lord Justice Thorpe and Lord Justice Mance
Contempt of Court, Family, Criminal Sentencing
The respondent had been sentenced to two months imprisonment for breaches of orders under the Act. The wife appealed, seeking to increase the sentence. The maximum sentence was two years. Held: The court had to consider such cases in the light of any parallel criminal or civil proceedings under the 1997 Act. "This was a case with an appalling history of intimidation and abuse. At every turn the husband had flouted the orders of the court and seized any leniency as little more than an opportunity to resume his campaign against the wife. The two breaches in respect of which he was sentenced were both individually extremely sinister in their presentation and implication. We are of the opinion that a sentence of less than ten months' imprisonment would have been unduly lenient. We only fixed a lesser sentence to reflect the element of double jeopardy. Accordingly the sentence which we passed on 30 October was a sentence of eight months' imprisonment concurrent on each of the admitted breaches. " and "the first court to sentence must not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence."
Family Law Act 1996 42 - Contempt of Court Act 1981 14 - Protection from Harrassment Act 1997
1 Cites

1 Citers

[ Bailii ]
 
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