The court considered its power to vary a post-nuptial settlement. Barnard J said: ‘No one could quarrel with this statement as a guiding principle, but at the same time I think it would be wrong to interpret it as meaning that it is a principle which must be applied in every case, regardless of its facts. That would, in my opinion, be placing fetters on the discretion of the court which the legislature never intended.’

Judges:

Barnard J

Citations:

[1949] 1 All ER 670

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Cited – Smith v Smith CA 1970
The husband had deserted the wife and gone abroad to work; the sole asset was the matrimonial home which was in joint names, and which constituted a post-nuptial settlement. The wife applied for variation of the settlement, whereby, on obtaining the . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652167

Any variation of a post-nuptial settlement should be addressed so as to place the parties in the same position as if the marriage had not come to an end.

Judges:

Langton J

Citations:

[1933] P 143

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652168

Pearce J said: ‘It is, in my view, to the child’s interest in another respect to allow the husband to remove a part of his fund from the settlement. He brought into the settlement reversions that were substantially all that he possessed; he now has, apart from these funds, no expectations and very little property; if, as seems likely in view of his age, he remarries, he has extremely little to settle on any future wife or children. If I refuse his request and devote exclusively to this child all the money that came from him, allowing none of it to go to any future wife or child of his, it may quite reasonably give him a feeling of injustice and impair the satisfactory relationship between father and child, a relationship of whose existence his generous dealing with the question of her maintenance gives some indication. Moreover, in the eyes of fair-minded members of the family, or friends, and of the child herself when she grows up, such an order will probably seem unjust and an excessive preference of the child’s interests to those of her father. To produce this result would cause a loss to the child which the retention of the money would not compensate. To produce a happier result by the surrender of some part of the husband’s fund would, in my view, be a benefit to the child. There may be cases where financial stringency might compel one to disregard such a benefit, owing to the necessity of keeping every available penny for the child, but this is not such a case.’

Judges:

Pearce J

Citations:

[1951] P 218

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652169

Sir Francis Jeune P said: ‘But one has in these cases to consider what is really for the benefit of the children, because I think the authorities shew that nothing must be done that on the whole would be for the disadvantage of the children. This does not so much turn on the words of the Act of Parliament, but generally on the principle that the children, being innocent parties, ought not to have their interests injuriously affected by the conduct of either of their parents.’
and: ‘It would be hard that a wife who is freed by the misconduct of her husband should not be able to appoint anything at all in favour of a second husband, or in favour of the children of a second marriage; and if, without substantial injury to the interests of the children of the first marriage, such an arrangement can be made, I think it is desirable and is in accordance with the spirit of the Act of Parliament.’

Judges:

Sir Francis Jeune P

Citations:

[1901] P 348

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652170

Cairns J considered a request for the variation of a post-nuptial trust and said: ‘Now it is well established by authority that the variation may be such as to confer a benefit on a stranger to the settlement provided it also confers a benefit on children interested in the settlement, and I think the authorities establish that it is sufficient if the variation contains some benefit to those children which can be regarded as being approximately equivalent to what is taken from them for the benefit of the stranger.
. . the court has jurisdiction to admit an adopted child to benefit under the settlement, provided that anything which the natural children of the marriage are called upon to give up is compensated for in some sufficient way. In considering this compensation the court cannot do any exact sum, because such intangible factors as the benefit of equality, or something approaching equality, within the family can be taken into account, though there must be some pecuniary benefit as well.’

Judges:

Cairns J

Citations:

[1961] P 141

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652171

The marriage settlement included an annual sum of pounds 500 appointed by the settler. The question was whether there was any property settled other than the pounds 500.
Held: There was not: ‘to my mind, the property settled is not the whole fund out of which the 500l. was carved, but it is the 500l. and nothing else.’

Judges:

Hill J

Citations:

[1926] P 42

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652163

Gorell Barnes J, considered the ambit of section 5 of the 1859 Act, and said: ‘Those words are extremely wide, and I am anxious that they should not, by any construction the Court may put upon them, be narrowed in any way. To narrow them would be undesirable for this reason: the various circumstances which come before the Court, and for which this section is brought into operation, are so diverse that it is to my mind extremely important that, so far as possible, the Court should have power to deal with all the cases that come before it, and, in dealing with them, to meet the justice of the case. I, therefore, do not desire to see any narrow interpretation placed upon the words of the section.’

Judges:

Gorell Barnes J

Citations:

[1902] P 78

Statutes:

Matrimonial Causes Act 1859 5

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652160

Hill J considered what is meant by a nuptial settlement: ‘Is it upon the husband in the character of husband or in the wife in the character of wife, or upon both in the character of husband and wife? If it is, it is a settlement on the parties within the meaning of the section. The particular form of it does not matter. It may be a settlement in the strictest sense of the term, it may be a covenant to pay by one spouse to the other, or by a third person to a spouse. What does matter is that it should provide for the financial benefit of one or other or both of the spouses as spouses and with reference to their married state.’
and: ‘But whether a settlement is within s. 192 does not depend on who is the settlor. In many ante-nuptial settlements, neither the husband nor the wife are themselves the settlors . . But whether a settlement is within s. 192 must depend on what it effects. If, in fact, it is a settlement on either husband or wife, or both in the character of husband or wife, it is wholly immaterial that it is prompted and stated to be prompted by affection only for one of them.
On the question whether a settlement is a settlement within s. 192, the motive of the settlor seems to me immaterial, except so far as it is given effect to by the terms of the deed.’
‘The main object of variation is to make proper provision for the injured spouse and the children of the marriage. And prima facie, settlements ought not to be interfered with further than is necessary for that purpose. But the Court which has annulled the marriage must not only protect the injured party, but also be fair to the wrongdoing party.’

Judges:

Hill J

Citations:

[1929] P 225

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652161

One of the assets included in the marriage settlement was a jointure rent-charge charged on certain specified hereditaments. The CA considered whether what was brought into the settlement so as to be amenable to the court’s statutory jurisdiction was the rent-charge or the hereditaments on which it was charged.
Held: Vaughan Williams LJ (with whom the Lord Chancellor and the Master of the Rolls agreed) said that it was the rent-charge: ‘I agree with what I understand to be the opinion of Gorell Barnes J, that what has been brought into settlement, in this Settlement, so far as the charges are concerned, is not the property upon which the charges are made, but the charges themselves; but there is one argument which was brought before us by Mr Danckwerts, and was also urged by him before Gorell Barnes J, with which I have yet to deal. It is this – that the whole of the hereditaments and premises comprised in the schedules to the marriage settlement were property settled by that settlement, and that the Court could therefore under the terms of s 5, which gives the Court power to make orders with reference to the application of the whole or a portion of the property settled for the benefit of children or their respective parents, order that the whole or a portion of the hereditaments and premises be applied for the benefit of the petitioner. The learned judge answers this by saying, ‘It seems a very extraordinary proposition that, because a charge – it may be a very small one – is created on a large real estate by a marriage settlement, the whole estate can be dealt with by the Court under the powers created by the sections aforesaid.’ I agree with him as to this’.

Judges:

Lord Halsbury LC, Sir A L Smith MR and Vaughan Williams LJ

Citations:

[1901] P 20

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652162

A moiety of a freehold was settled during the life of the trustees and the survivor of them for the benefit of the two daughters of the settlor, their husbands and issue. The reversion in fee expectant remained with the settlor. It was common ground that no greater estate than an estate pur autre vie in one moiety passed by the settlement. The question was whether the daughters could sell and convey the fee simple in one moiety or only a moiety in the estate pur autre vie. The reversion was separated from the estate. Could the daughters make a good title as tenants for life under the Settled Land Act 1882 to the moiety comprised in the settlement.
Held: They could.
Swinfen Eady J said: ‘Although the reversion is separated off from the particular estate by the settlement itself and remains vested in the grantor, and is not in fact comprised in the settlement, the effect of the Act is to treat it for the purposes of the Act as if it were comprised in the subject of the settlement. Therefore the settlement is for the purposes of the Settled Land Act a settlement of the moiety of the fee, that moiety is settled land for the purposes of the Act; and each daughter, having the powers of a tenant for life, can sell and convey a half part of the moiety, the purchase-money being paid to the trustees of the settlement.’

Judges:

Swinfen Eady J

Citations:

[1907] 1 Ch 46

Statutes:

Settled Land Act 1882

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652164