swarb.co.uk - law index
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Family - From: 2004 To: 2004
This page lists 45 cases, and was prepared on 02 April 2018.
In Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend); FD 2004 - [2005] 2 FLR 230; [2004] EWHC 3202 (Fam); [2005] 3 All ER 421; [2006] 1 WLR 81; [2005] 2 FCR 459
Waiwaiku v Waiwaiku [2004] EWCA Civ 20
14 Jan 2004
CA
Family
Ancillary relief - variation
[ Bailii ]
Bennett v Bennett [2004] ScotSC 7
20 Jan 2004
ScSf
Sheriff Principal Sir Stephen S.T. Young
Family
[ Bailii ]
J v J; Parlour v Parlour [2004] EWHC 53 (Fam); [2004] 1 FCR 709
23 Jan 2004
FD
Bennett J
Family
Ancillary relief.
1 Citers
[ Bailii ]
K (formerly G) v G Times, 13 February 2004; Gazette, 26 February 2004
28 Jan 2004
FD
Singer J
Family
In an ancillary relief action it had been anticipated that the husband would at a future time inherit a substantial amount. An order was made but an express order for a capital sum was adjourned. The wife then remarried, and later, and after the wife's second marriage had come to an end, the former husband did receive the inheritance. The former wife sought to pursue the claim, and the husband argued that her subsequent marriage barred the action. Held: The wife's claim was not barred. The rationale behind the original order was that matters should be left unconcluded until the inheritance. Neither precedent nor statute gave assistance. The wife's contribution had been particularly effective because of the support she had given to the family's children. That element which was to have been reflected in the original claim was not affected by the subsequent remarriage, and in those circumstances the former wife's claim should be allowed to go ahead.
Matrimonial Causes Act 1973 25
CF v Secretary of State for the Home Department [2004] EWHC 111 (Fam); [2004] 2 FLR 517
30 Jan 2004
FD
Munby J
Family, Litigation Practice, Prisons
The court considered the choice or procedures arising in relation to a baby ward of court living with its mother in prison. The sentence to be served would take the child beyond the maximum age provided for in mother and baby units.
Prison Rules 1999
1 Cites
1 Citers
[ Bailii ]
N A v M O T Times, 02 March 2004; [2004] EWHC 471 (Fam)
30 Jan 2004
FD
Baron J
Family
The parties had been married for only a few weeks. The wife sought ancillary relief. Held: The marriage had been preceded by a pre-marital or pre-nutial agreement, under which if the husband sought a divorce (a talaq) she would recover her marriage portion, but if she did (a kuhla), she would have to negotiate a settlement. The court should, under the section, allow for the duration of the marriage and respect the cultural background of the parties. The wife was awarded pounds 35,000 to be increased to pounds 65,000 if the husband did not apply for a talaq within a certain time.
Matrimonial Causes Act 1973 25
[ Bailii ] - [ Bailii ]
Leon Rhys Morgan As Attorney of Sir Peter Shaffer v Diane Cilento, Carolyn Shaffer, Claudia Shaffer, Cressida Shaffer, Marie Josette Capece Minutolo [2004] EWHC 188(Ch); [2004] WTLR 457
9 Feb 2004
ChD
The Honourable Mr Justice Lewison
Wills and Probate, Family
The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not apply. Held: He had acquire a domicile of choice in Australia. His return to England was not sufficiently unconditional to evidence abandonment of his Australian domicile. "it may be that his intention to return to Queensland was withering. But I do not consider that it died before Anthony did. "
Inheritance (Provision for Family and Dependents) Act 1975
1 Cites
1 Citers
[ Bailii ]
Mark v Mark Times, 27 February 2004; [2004] EWCA Civ 361; [2004] EWCA Civ 168; Gazette, 01 April 2004
19 Feb 2004
CA
Thorpe, Waller, Latham LJJ
Family, Jurisdiction
The husband sought to stay divorce proceedings saying that his wife was an illegal overstayer, and could not therefore establish residence either as habitual or or as domicile of choice. Held: Jurisdiction existed. The law since Shah had developed and the rule was one of public policy, not of construction. The Human Rights Act required the courts to provide a remedy, and jurisdiction could be granted based upon the wife's habitual residence here. The need to prevent unlawful residence creating rights to benefits has no place in family law. The law has a margin of appreciation within which it could prevent an ouster of jurisdiction for an element of illegality.
Domicile and Matrimonial Proceedings Act 1973 5(2)
1 Cites
[ Bailii ] - [ Bailii ]
Sawden v Sawden [2004] EWCA Civ 339
25 Feb 2004
CA
Family
Ancillary relief
[ Bailii ]
Charalambous v Charalambous; FD 5-Mar-2004 - [2004] 2 WLR 1467
J H v A M [2004] EWHC 625 (Fam)
17 Mar 2004
FD
Family
Ancillary relief
[ Bailii ]
M v M (Financial Relief: Substantial Earning Capacity) [2004] EWHC 688 (Fam); [2004] 2 FLR 236
29 Mar 2004
FD
Baron DBE J
Family
The parties had been married for 12 years, there were three children, one with special needs, and assets of over 12 million pounds. The court considered the application for ancillary relief. It was substantially agreed that the wife should receive half of the assets at the date of separation, but she sought a similar proportion of the increase since. Held: The case of GW was to be preferred to Foley. The wife's continuing duties of care for the children were to be taken into account. The court acknowledged the significance of the length of the marriage and of the period of cohabitation before the marriage: "there ought to be an acknowledgement in the level of award to take account of this factor. I regard this marriage as in the lower end of the bracket of medium to long term, which means that an equal division is not necessarily to be regarded as almost automatic. " As to the budget prepared for the wife: "Those who practice in this field know that a budget is a work of art (and sometimes a work of artifice) but the Court must be entitled to take a realistic view. The original budget in this case was very high in the context of previous lifestyle. " The court did not consider the husband's expected high future earnings to be a marital asset.
1 Cites
1 Citers
[ Bailii ]
C v C (Ancillary Relief: Nuptial Settlement) [2004] EWHC 742 (Fam); [2004] Fam 141
2 Apr 2004
FD
Family
Application for ancillary relief to vary post-nuptial settlement.
Matrimonial Causes Act 1973 24(1)(c)
1 Citers
[ Bailii ]
In re F (Enduring power of Attorney); ChD 2-Apr-2004 - Times, 29 April 2004
Bishop v Bishop; CA 26-Apr-2004 - [2004] EWCA Civ 738
Kerry Cox v Lawrence Jones [2004] EWHC 1006 (Ch)
6 May 2004
ChD
Mann, The Honourable Mr Justice Mann
Family, Evidence, Media, Civil Procedure Rules
In the course of the hearing some of the claimant's allegations were dropped. Newspapers having taken an interest in the case sought disclosure of the full document. Held: The parts of the statements not relied upon included allegations against third parties who would have no opportunity of reply, and which allegations were not pursued. The names would be deleted. The court made available the documents required under 5.4 but not further.
Civil Procedure Rules 5.4 32.13
[ Bailii ]
H v H [2004] EWHC 1066 (Fam)
14 May 2004
FD
Baron J
Family
Ancillary relief - family assets held in trusts.
[ Bailii ]
Thompson v Prater [2004] EWCA Civ 989
28 Jun 2004
CA
Family
[ Bailii ]
Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening (2004) 2 FLR 823; [2004] EWCA Civ 845; [2004] 3 All ER 875
5 Jul 2004
CA
Lord Justice Sedley Lord Justice Thorpe Lady Justice Arden
Family, Litigation Practice
The applicant sought an order that his application for a joint residence order should be held in public. Held: Though there was some attractiveness in the applicant's arguments, the issue had been fully canvassed by the ECHR. The time had come for the court to consider in each case whether a proper balance of competing rights requires the anonymisation of any report of the proceedings and judgment but only following a hearing which was conducted in public and therefore open to all who cared to attend. Otherwise the application failed.
Family Proceedings Rules 1991 4.16 - Children Act 1989 97(2)
1 Cites
1 Citers
[ Bailii ]
Clarke v Clarke [2004] EWCA Civ 1185
5 Jul 2004
CA
Family, Contempt of Court
[ Bailii ]
McFarlane v McFarlane; Parlour v Parlour [2004] EWCA (Civ) 872; Times, 09 July 2004; [2004] 2 FCR 657; [2005] Fam 171
7 Jul 2004
CA
Lord Justice Thorpe Lord Justice Latham Lord Justice Wall
Family
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income. Held: The distinction between capital and income awards is no longer conclusive, having arisen in part from historical causes. Once each party had been put in a position to satisfy their reasonable income needs, the balance of available income could be divided between the parties: "The statute is a flexible code designed to enable the court to achieve a fair outcome. Periodical payments are one part of that code. The principle of the clean break is now, in my judgment, contained in section 25A. If, in exceptional cases such as the present, periodical payments can be used to enable a payee to accumulate capital and thus facilitate a termination of financial obligations within a reasonable time, such a use seems to me fair and square within the statutory objective. " In Parlour, the wife had supported her husband in a way which had facilitated his continued high earnings, and she should be allowed an excess income to build up capital over the next four years, whilst her husban would still have a high income. The appeal was also allowed in McFarlane.
Matrimonial Causes Act 1973 25
1 Cites
1 Citers
[ Bailii ]
In re S-M (Children) [2004] EWCA Civ 1238
19 Jul 2004
CA
Family
[ Bailii ]
Taylor v Taylor; CA 20-Jul-2004 - [2004] EWCA Civ 1022; Times, 06 September 2004
Regina (on the Application of Susan Joan Smith) v Secretary of State for Defence - and -Secretary of State for Work and Pensions [2004] EWHC 1797 (Admin)
26 Jul 2004
QBD
Mr Justice Wilson
Family, Discrimination, Human Rights
The claimant was divorced from her husband, a member of the armed forces, and was to receive a share of his pension. She complained that although he had been able to take his share of the pension early, she had been obliged to wait. Held: There was no discrimination. The provisions fell within the ambit of article 8, but there was no infringement. The alternative might lead to absurd results. The scheme was clear, and could be allowed for as necessary in the negotiations in the divorce, though in this case no external transfer of the rights was available to the claimant.
Pension Schemes Act 1993 101C(1) 101B - European Convention on Human Rights 8
1 Citers
[ Bailii ]
Moore v Moore [2004] EWCA Civ 1243
29 Jul 2004
CA
Family, Jurisdiction
[ Bailii ]
Burns v Burns [2004] EWCA Civ 1258; [2004] 3 FCR 263
30 Jul 2004
CA
Family
Application for leave to appeal against ancillary relief order.
1 Citers
[ Bailii ]
Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement); CA 30-Jul-2004 - [2004] EWCA Civ 1030; Times, 07 September 2004; [2005] Fam 250
Myers v Myers and Orhers [2005] WTLR 851; [2004] EWHC 1944 (Fam)
3 Aug 2004
FD
Munvy J
Family, Wills and Probate
The court ordered, from a very large estate, provision which included housing, but he did so by way not of an outright capital sum but of a life interest in a trust fund together with power of advancement designed to cater for the possibility of care expenses in advanced old age. If housing is provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.
Inheritance (Provision for Family and Dependants) Act 1975
1 Citers
[ Bailii ]
De Montford v Mckenzie [2004] EWCA Civ 1189
17 Aug 2004
CA
Family, Contempt of Court
[ Bailii ]
W Healthcare NHS Trust v KH and Others Times, 09 December 2004; [2004] EWCA Civ 1324; Unreported, 17 September 2004
17 Sep 2004
CA
Brooke LJ, Clarke LJ, Maurice Kay J
Family, Health
The patient was very severely disabled. She was a lady of 59 suffering from multiple sclerosis. She was not competent to make decisions about her own treatment. She was in a pitiful state, and had to be fed through a percutaneous gastronomy tube but she was not in a vegetative state. Her family and the Official solicitor considered that treatment should be withdrawn, but her doctors disagreed. Held: The patient was incapable of deciding her own fate. There was no sufficiently clear advance directive. The court was left to decide her best interests. The proposed action would be a course of starvation, which the patient would feel. The judge had held that death by this means would be even more undignified. Here the court was acting as a court of appeal, and should be reluctant to substitute its own view of the facts for that of the judge. The judge had carefully balanced the arguments and facts and applied the law as it stands. English law places a heavy burden of proof on those who suggest a course of action which will lead to a death. The appeal failed.
Brooke LJ: "Lord Justice Taylor referred to a case of extremely painful treatment causing continuous agony or such continuous sedation as to lead to there being no conscious life at all. He concluded that part of his judgment by saying that the test must be whether "the child in question is capable of exercising sound judgment or would consider the life tolerable.
Mr Francis' submissions have convinced me that there is a danger of detecting a substituted choice test in this passage. Normally the approach that the law should adopt is to determine whether, in the judgment of the court, the continuation of life would be intolerable. In one of the cases Lord Justice Thorpe has suggested that in these best interests cases the law should draw up a balance sheet, putting the advantages on one side and the disadvantages on another.
The way that the judge came to the conclusion was that in KH's present state he was unable to say that life prolonging treatment would provide no benefit, and that death by, in effect, starvation would be even less dignified than the death which she will face in due course if kept artificially alive for more weeks or months or possibly years.
The judgment is not ours to make. This is a court of appeal. The balance is for the judge of first instance to assess, and this court can only interfere on well recognised grounds if the judge has misdirected himself in law or there are reasons why we are entitled to fault the exercise of the judgment he concluded.
The judge, having rightly put on one side the question whether there was a legally binding advance directive, looked, on the one hand, at the consequences of withdrawing nutrition and the effect this would have and, on the other hand, at the continuance of a life in which there is some feeling of pain, some sensation and some slight ability to answer questions. He came to the conclusion that it was in the best interests of the patient to accede to the unanimous wish of those who are responsible for her treatment.
As I have said, the Official Solicitor supports this application. These cases are always agonisingly difficult. Nobody would wish to be in the position in which the members of this family find themselves. But judges have to apply the law as they find it. English law, as it stands at present, places a very heavy burden on those who are advocating a course which would lead inevitably to the cessation of a human life. In my judgment, it is impossible for this court to interfere with the judge's judgment.
Accordingly I would dismiss this appeal."
1 Cites
1 Citers
Moses-Taiga v Taiga; CA 23-Sep-2004 - [2004] EWCA Civ 1399
Al-Khatib v Masry and others [2004] EWCA Civ 1353; Times, 21 October 2004; [2005] 1 FLR 381
5 Oct 2004
CA
Thorpe LJ
Family, Litigation Practice
The parties had been involved in protracted and bitter family disputes. After a previous appeal they had been invited to refer their disputes to mediation. Held: At that time, mediation within the Appeal Court was managed by commercial mediators. No attempt had been made to supervise the mediation, and it had failed. There is no good reason why the court should not maintain some supervisory role. The court noted that the mediation had been resumed and been successful.
Thorpe LJ observed: "there is no case, however conflicted, which is not potentially open to successful mediation, even if mediation has not been attempted or has failed during the trial process"
1 Cites
1 Citers
[ Bailii ]
Os v Ds [2004] EWHC 2376 (Fam)
6 Oct 2004
FD
Family
Ancillary relief - substantial assets - procedure of settlement.
[ Bailii ]
Bibi, Regina (on the Application Of) v London Borough of Camden [2004] EWHC 2527 (Admin)
11 Oct 2004
Admn
Housing, Family
The court had made a joint residence order, but the housing department offered the wife only a one bedroomed department which would not allow her children to stay with her. Held: The local authority decision had to be set aside. In future when making such orders the exact for of residence required might be set out and the local authority consulted.
[ Bailii ]
Matin v Hm Attorney General and Another [2004] EWCA Civ 1621
2 Nov 2004
CA
Contempt of Court, Family
[ Bailii ]
Ram v Ram and others [2004] EWCA Civ 1684
16 Nov 2004
CA
Family, Insolvency
Insolvency Act 1986 423
[ Bailii ]
Sheffield City Council v E; Re E (An Alleged Patient); FD 2-Dec-2004 - Times, 20 January 2005; [2005] 2 WLR 953; [2004] EWHC 2808 (Fam); [2005] 1 FLR 965
Blunkett v Quinn Times, 07 December 2004; [2004] EWHC 2816 (Fam); [2005]1 FLR 648
3 Dec 2004
FD
The Honourable Mr Justice Ryder
Family
The court considered it necessary an appropriate to make public its decision not to grant a stay of conciliation of proceedings under the Act. The parties were famous and there had been much false publicity about th efacts underlying the case.
[ Bailii ]
Rogers-Headicar v Headicar [2004] EWCA Civ 1867
9 Dec 2004
CA
Family, European, Jurisdiction
Council Regulation (EC) No 1347/2000
[ Bailii ]
Challinor v Challinor [2004] EWCA Civ 1674
10 Dec 2004
CA
Sir Martin Nourse Lord Justice Wall
Family, Costs
[ Bailii ]
Johan Michael Richard Foenander v Carol Iris Foenander [2004] EWCA Civ 1675
10 Dec 2004
CA
Lord Justice Wall
Family
Civil restraint order
[ Bailii ]
Hipgrave and Another v Jones Times, 11 January 2005; [2004] EWHC 2901 (QB)
15 Dec 2004
QBD
Tugendhat J
Family
The defendant appealed an order under the 1997 Act saying that it was akin to an order made under the 1998 Act where proof was required to a criminal standard, and that the court had applied only the civil standard. Held: There was a real distinction between the two Acts. The civil standard of proof was sufficient to protect a defendant to harassment proceedings.
Protection from Harassment Act 1997 3 - Crime and Disorder Act 1998 1
1 Citers
Damon Head v Carol Orrow [2004] EWCA Civ 1691; [2005] 2 FLR 329
16 Dec 2004
CA
Mr Justice Wall The Hon. Mr Justice Dyson The Right Honourable Lord Justice May
Contempt of Court, Family
A court asked to sentence for contempt of court is not sentencing for the criminal equivalent of what the contemnor has done, and "Great care must be taken, if there are concurrent criminal or civil proceedings, to ensure that sentences in two or more courts do not punish twice for the same thing."
Family Law Act 1996 42
1 Citers
[ Bailii ]
T Messer and Another v Messer [2004] EWCA Civ 913
21 Dec 2004
CA
Lord Justice Waller
Land, Family
Order for possession
1 Cites
1 Citers
[ Bailii ]