No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be reluctant to allow repeated appeals from appeals so as to consume all the assets in legal costs, and lawyers must be aware and act accordingly.
Lord Hoffmann discussed the need to be cautious in reversing a first instance decision: ‘the exigencies of daily Court life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the Judge gave in this case but also of a reserved judgment based upon notes such as were given by the District Judge. These reasons should be read on the assumption that unless he has demonstrated to the contrary the Judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973 setting out the factors to take into account in making orders for ancillary relief]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.’
Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Wood-borough, Lord Millett
Times 25-Jun-1999, Gazette 07-Jul-1999, Gazette 20-Oct-1999, [1999] UKHL 27, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FCR 481, [1999] 2 FLR 763, [1999] Fam Law 617
House of Lords, Bailii
Matrimonial Causes Act 1973 25
England and Wales
Citing:
Appeal from – Piglowska v Piglowski CA 3-Nov-1997
The husband appealed against an order made on an ancillary relief application saying that the judge had refused to admit further evidence. . .
Cited – Evans v Evans (Practice Note) FD 1990
The parties had assets worth about andpound;350,000, most of which consisted of business assets which provided the family income and could not be sold. They ran up costs of andpound;60,000 in contesting the application for ancillary relief. The . .
Cited – Evans v Bartram HL 1937
When a defendant seeks to set aside a regular judgment which had been obtained by default, the test for setting it aside is: ‘In a case like the present there is a judgment, which, though by default, is a regular judgment, and the applicant must . .
Cited – M v B (Ancillary Proceedings: Lump Sum) CA 15-Oct-1997
The couple had two children aged 10 and 6 and the question was whether the wife should have a house which cost pounds 210,000, leaving the husband without enough to buy a property of his own, or a house costing pounds 135,000, leaving the husband . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Marsh v Marsh CA 1-Mar-1993
Appeals under the Family Proceedings Rules had to be read in conjunction with the CCR Order 37 r 6, and the judge hearing the appeal had discretion to substitute his own view for that of the court below. This is different from what applies on appeal . .
Cited – Bellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .
Cited – Sansom v Sansom 1966
An appellate judge in ancillary proceedings who has seen the witnesses, is entitled to give weight to his advantages in having seen the witnesses and his experience in dealing with such issues. . .
Cited – Martin v Martin CA 10-Mar-1977
The court urged caution in a judge using his own experience of the property market by way of judicial notice: ‘[W]herever it is to be argued that the wife could find alternative accommodation for herself out of her share of the equity, whatever that . .
Cited by:
Applied – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Fidelity Management Sa and others v Myriad International Holdings Bv and others ComC 9-Jun-2005
. .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited – AG for the Sovereign Base Areas of Akrotiri and Dhekelia v Steinhoff PC 19-Jul-2005
(Akrotiri and Dhekelia) The defendant had appealed convictions for rape and attempted rape. He had criticised the arrangements for protecting the complainant when giving evidence, which had not complied with the 1999 Act. His appeal succeeded in . .
Cited – Otobo v Otobo; O v O (Appeal against Stay: Divorce Petition) CA 2-Jul-2002
The husband, a wealthy Nigerian had supported further traditional families outside the UK. The wife appealed a stay on her divorce petition. The husband argued that her habitual residence did not support jurisdiction. Agreed expert evidence . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – Crown Prosecution Service v Richards and Richards CA 27-Jun-2006
The court was asked how to resolve the conflict between a public policy imperative to deprive offenders of the fruits of their crime and the requirement that dependants are provided for after divorce when the only funds available for both are the . .
Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
Cited – North v North CA 25-Jul-2007
The husband appealed a consent order for payment of pounds 202,000 to commute a varied nominal maintenance order. The original order had been made many years before. In the meantime, the former husband had grown wealthy, and she had suffered . .
Cited – S v S FD 19-Mar-2008
The husband appealed against an ancillary relief order, and particularly as to an order that he should continue to pay maintenance for the joint lives of the parties rater than for five years. He was earning a substantial income but anticipated that . .
Cited – Bahouse and Another v Negus CA 28-Feb-2008
The court heard a renewed application for leave to appeal against an order in an action under the 1975 Act. The executors said that the judge had erred in law in his interpretation of what was meant by ‘maintenance’.
Held: Appeals under the . .
Cited – Sibley and Co v Reachbyte Ltd and Another ChD 4-Nov-2008
Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a . .
Cited – Cooper and Others v Fanmailuk.Com Ltd and Another CA 17-Dec-2009
F claimed to be the beneficial owner of shares registered in the names of the claimants. The appellants challenged a finding that the shares were held on trust for F, and the implication that the first appellant had presented a dishonest claim.
Cited – Oxfordshire County Council v X and Others CA 27-May-2010
The LA, the guardian and adoptive parents appealed against an order that they should provide to the parents an annual photograph of the child. They contended that an image should only be made available to be viewed at the authority’s offices . .
Cited – In re O (Children) CA 16-Feb-2011
The family had Nigerian nationality, but the father also had US nationality. After the split, M wanted to live with the children in Nigeria, and F wanted them with him in the US. On M’s visit to the UK from Nigeria with the children, the father . .
Cited – Ilott v Mitson and Others CA 31-Mar-2011
The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – Camertown Timber Merchants Ltd and Another v Sidhu and Another CA 8-Sep-2011
The parties disputed a course of trading between them without formal contracts being used. The challenge now was as to the adequacy of the judge’s findings.
Held: The appeal failed. The judgment was ‘short, even perfunctory and Delphic.’ . .
Cited – Crann v Crown Prosecution Service Admn 27-Feb-2013
The defendant appealed by case stated against an order allowing the amendment of an information against him. He was first accused of failing to provide a specimen of breath for testing after being stopped and suspected of driving with excess . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .
Cited – Ilott v The Blue Cross and Others SC 15-Mar-2017
What is reasonable provision for daughter
The deceased had left her estate in her will to several animal charities. The claimant, her daughter, had been estranged from her mother for many years, and sought reasonable provision from her estate under the 1975 Act. The district judge had . .
Cited – PMS International Group Plc v Magmatic Ltd SC 9-Mar-2016
Overall Impression of Design is a Judgment
The respondent had alleged infringement of its registered design in the ‘Trunki’, a ride-on children’s suitcase. At first instance, the judge had held that the surface decorations were to be ignored. On appeal it had been held that the judge had . .
Lists of cited by and citing cases may be incomplete.
Family, Litigation Practice
Leading Case
Updated: 02 November 2021; Ref: scu.84735
