Padolecchia v Padolecchia: FD 1968

Ante-nuptial domicile sets capacity law

The husband domiciled in Italy was divorced from his first wife in Mexico. The divorce was not recognised in Italy. The husband then went to live in Denmark and during a one day visit to England went through a ceremony of marriage with a woman domiciled in Denmark. Following the ceremony, the parties returned to Denmark to live.
Held: The law governing the capacity of a party for marriage is governed by their ante-nuptial domicile. As the Mexican divorce was not recognised in Italy the husband had no capacity to marry by the law of his domicile and therefore the marriage was void.

Judges:

Sir Jocelyn Simon P

Citations:

[1968] P 314

Jurisdiction:

England and Wales

Cited by:

CitedWilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2022; Ref: scu.244722

Drake v Whipp: CA 30 Nov 1995

The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff appealed against a finding that she had only a 14.9% interest on a resulting trust, in the house she and the defendant had occupied together. The property had been purchased for andpound;61,000 of which she had contributed andpound;24,000, with later additional contributions to conversion works. She complained that working on a resulting trust, the costs of acquisition were given undue emphasis.
Held: A beneficial interest in a family home could be presumed from the intention of the parties and their acting in detriment. There was a constructive trust. There was undisputed evidence that she was to have an interest in the property, and she had acted to further that intention and to her detriment. The appeal was allowed, and her interest set at one third. ‘it is not easy to reconcile every judicial utterance in this well-travelled area of the law. A potent source of confusion, to my mind, has been suggestions that it matters not whether the terminology used is that of the constructive trust, to which the intention, actual or imputed, of the parties is crucial, or that of the resulting trust which operates on a presumed intention of the contributing party in the absence of rebutting evidence of actual intention.’

Judges:

Peter Gibson LJ, Lord Justice Hirst and Mr Justice Forbes

Citations:

Times 19-Dec-1995, [1996] 2 FCR 296, [1995] EWCA Civ 25, (1996) 28 HLR 531, [1996] CLY 5780

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedLloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
CitedDyer v Dyer 27-Nov-1988
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold . .

Cited by:

CitedOxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedJones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Trusts, Housing, Family

Updated: 09 December 2022; Ref: scu.80130

Sharland v Sharland: CA 10 Feb 2014

Appeal against the order of Sir Hugh Bennett dismissing the application of the appellant wife to resume the hearing of her claim for financial provision following her divorce from the respondent.
Held: (Briggs LJ dissenting) The appeal failed. Moore-Bick LJ said: It may be unusual for a judge to conclude that despite a deliberate failure by one party to give full and frank disclosure the resulting order should not be set aside, but ultimately that must depend on the nature of the non-disclosure and its effect on the outcome of the proceedings. In this case the husband’s non-disclosure was deliberate and dishonest, but because of the rather unusual circumstances there were good reasons for concluding that it had not resulted in an order significantly different from that which the court would otherwise have made at the conclusion of the proceedings. In my view the judge was entitled to hold that the wife had not made out sufficient grounds for re-opening the hearing. That called for an exercise of judgment on his part and in my view his decision was one that was open to him.’
Briggs LJ thought having found the deceit, ‘fraud unravels all’ and the ‘the husband’s fraud undermined both the parties’ agreement and the consent order which followed ought to have been the end of the matter, and to have led to the setting aside of the consent order, and an order for a new (or perhaps resumed) hearing.’
Macur LJ said: ‘the audacity and extensive practice of a deceit cannot be determinative of the degree of its materiality to the substance of an order of the Court. It may be material in negotiations between the parties to an action or a contract or within the hearing, not least in terms of the integrity of the participants, but, applying the ratio in Livesey v Jenkins as I consider it to be, entirely in accordance with the exposition by my Lord, Lord Justice Moore-Bick, it will not necessarily undermine the rationale or content of an order made, whether by consent or after hearing in matrimonial proceedings.
In this case Sir Hugh, not being functus officio, considered the matter having directed and received further evidence from the husband and submissions from Counsel, and determined that ultimately it did not.’
Macur LJ placed particular emphasis on the wife’s failure to cross examine the husband on his affidavit.

Judges:

Moore-Bick, Briggs, Macur LJJ

Citations:

[2014] EWCA Civ 95, [2014] 2 FCR 189

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedJenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Appeal fromS v S FD 29-Apr-2013
W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been . .
CitedXydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
CitedBokor-Ingram v Bokor-Ingram CA 4-Mar-2009
W sought to re-open the financial settlement on her divorce. Within a few days of the order, H resigned and took on a new employment at a significant increase in pay. That had not been disclosed. . .
CitedOwens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .

Cited by:

Appeal fromSharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 December 2022; Ref: scu.521110

N v N and Another: FD 16 Dec 2005

Judges:

Coleridge J

Citations:

[2005] EWHC 2908 (Fam), [2006] 1 FLR 856

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Cited by:

CitedBen 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

Updated: 07 December 2022; Ref: scu.279013

Whig v Whig: FD 23 Jul 2007

The court heard ancillary relief and bankruptcy proceedings together.
Held: Munby J refused to annul the husband’s bankruptcy.

Judges:

Munby J

Citations:

[2007] EWHC 1856 (Fam), [2008] 1 FLR 453

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedBen 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, Insolvency

Updated: 07 December 2022; Ref: scu.260013

Smith v Smith: FD 2000

Ancillary relief

Judges:

Thorpe J

Citations:

[2000] 3 FCR 374

Jurisdiction:

England and Wales

Cited by:

CitedA v B (Ancillary relief: Separation agreement) FD 17-Jan-2005
The husband appealed against an ancillary relief order, saying that the judge had applied the terms of a separation agreement without acknowledging that that agreement had been entered into without full disclosure having been made. Had the judge . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 December 2022; Ref: scu.224379

C v C (Ancillary Relief: Nuptial Settlement): FD 2 Apr 2004

Application for ancillary relief to vary post-nuptial settlement.

Citations:

[2004] EWHC 742 (Fam), [2004] Fam 141

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Cited by:

CitedRadmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
LeaveCharalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
CitedBen 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

Updated: 07 December 2022; Ref: scu.221039

Prescott v Fellowes: CA 1958

The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a settlement which are familiar to conveyancing practitioners. It has, however, long since been established by decisions which are binding on this court that a disposition of property may a ‘settlement’ for the purposes of section 25 of the Matrimonial Causes Act 1950, notwithstanding that it would not be regarded as a settlement of property for any other purpose. The liberality with which this legislation has been construed is sufficiently exemplified by Bosworthick v. Bosworthick. In that case a wife executed, a few years after her marriage, a bond which secured to her husband an annuity for his life. The marriage was dissolved in 1925 and the wife applied to the court for an order extinguishing her liability under the bond. This court, affirming the decision of Lord Merrivale P., held that the bond was a post-nuptial settlement for the purposes of section 5 of the Matrimonial Causes Act, 1859, and section 192 of the Supreme Court of Judicature (Consolidation) Act, 1925; and the wife’s application succeeded. In the course of his judgment Romer J., who was sitting as a member of this court, said that the authorities established ‘that where a ‘husband has made a provision for his wife, or a wife for her husband, in the nature of periodical payments, that amounts to a settlement within the meaning of the sections. That may appear to be a very liberal construction of the sections, but I think that it is no more liberal a construction than should be given to them having regard to the obvious purposes for which they were enacted by the legislature.’

Judges:

Romer LJ

Citations:

[1958] P 260

Statutes:

Matriimonial Cause Act 1950

Jurisdiction:

England and Wales

Cited by:

CitedCharalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
CitedBen 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.199724

Saeed and Another v Ibrahim and Others: ChD 9 Jan 2018

The court considered the overlap between CPR 3.4(2)(a) and CPR 24.2

Judges:

Marsh CM

Citations:

[2018] EWHC 3 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See AlsoSaeed and Another v Ibrahim and Others ChD 3-Aug-2018
. .
CitedBoyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family, Litigation Practice

Updated: 27 November 2022; Ref: scu.602625

JR38, Re Application for Judicial Review (Northern Ireland): SC 1 Jul 2015

The appellant was now 18 years old. In July 2010 two newspapers published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the appellant’s photographs and those of others who had been involved in public disorder in Londonderry was part of a police campaign known as ‘Operation Exposure’ which was designed to counteract sectarian rioting at what are called ‘interface areas’ in parts of Derry. Interface areas are situated at the boundaries of parts of the city which are predominantly inhabited by one or other of the two main communities.
The appellant argues that publication of photographs of him constituted a violation of his article 8 rights. ‘
Held: The appeal failed. The publication of his photograph was not an infringement of the applicant’s human rights.
There was, per Lords Kerr and Wilson, in interference in his rights, but that interference was proportionate and justified.
Lords Toulson, Clarke, and Hodge did not think that there had been an interference with the appellant’s human rights, because in the circumstances there had been no expectation of privacy.
Lord Toulson JSC said: ‘ In Campbell’s case Lord Nicholls of Birkenhead said at para 21 that ‘Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy’. He also warned that courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Applying Campbell’s case, Sir Anthony Clarke MR said in Murray’s case at para 35 that ‘The first question is whether there is a reasonable expectation of privacy’. He said at para 36 that the question is a broad one which takes account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which the claimant was involved, the place at which it was happening, and the nature and purpose of the intrusion. The principled reason for the ‘touchstone’ is that it focuses on the sensibilities of a reasonable person in the position of the person who is the subject of the conduct complained about in considering whether the conduct falls within the sphere of article 8 . If there could be no reasonable expectation of privacy, or legitimate expectation of protection, it is hard to see how there could nevertheless be a lack of respect for their article 8 rights.”

Judges:

Lord Kerr, Lord Clarke, Lord Wilson, Lord Toulson, Lord Hodge

Citations:

[2015] HRLR 13, [2015] UKSC 42, [2015] WLR(D) 280, [2016] AC 1131, [2015] 3 WLR 155, [2015] EMLR 25, [2015] 4 All ER 90, UKSC 2013/0181

Links:

Bailii, WLRD, SC, SC Summary, Bailii Summary

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Northern Ireland

Citing:

Appeal fromJR 38, Re Judicial Review QBNI 21-Mar-2013
Application for judicial review of a decision by the PSNI to release to local newspapers for publication images of persons suspected of being involved in sectarian rioting and violent offending at an interface area at Fountain Street/Bishop Street . .
CitedX v Iceland ECHR 18-May-1976
The right to respect for private life was held to ‘comprise also, to a certain degree, the right to establish and develop relationships with other human beings’. . .
CitedNiemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
CitedRotaru v Romania ECHR 4-May-2000
Grand Chamber – The applicant, a lawyer, complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for . .
CitedPG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
CitedCampbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
CitedSidabras And Dziautas v Lithuania ECHR 27-Jul-2004
Former KGB officers complained that they were banned, not only from public sector employment, but also from many private sector posts. This ‘affected [their] ability to develop relationships with the outside world to a very significant degree, and . .
CitedSciacca v Italy ECHR 11-Jan-2005
The court was asked whether the applicant’s rights under Article 8 had been infringed by the release to the press of an identity photograph taken of her by the Italian Revenue Police while she was under arrest and investigation for various criminal . .
CitedCemalettin Canli v Turkey ECHR 18-Nov-2008
The Court found interference in the applicant’s right to respect of his private life in that the police prepared and submitted to a domestic court an inaccurate report in the context of criminal proceedings against him. . .
CitedReklos and Davourlis v Greece ECHR 15-Jan-2009
(Press release) The court considered the rights when photographs were taken in public: ‘the court finds that it is not insignificant that the photographer was able to keep the negatives of the offending photographs, in spite of the express request . .
CitedWood v Commissioner of Police for the Metropolis CA 21-May-2009
The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had . .

Cited by:

CitedWeller and Others v Associated Newspapers Ltd CA 20-Nov-2015
The three children of a musician complained of the publication of photographs taken of them in a public place in California. . .
CitedNT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
CitedRichard v The British Broadcasting Corporation (BBC) and Another ChD 18-Jul-2018
Police suspect has outweighable Art 8 rights
Police (the second defendant) had searched the claimant’s home in his absence in the course of investigating allegations of historic sexual assault. The raid was filmed and broadcast widely by the first defendant. No charges were brought against the . .
CitedZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
Lists of cited by and citing cases may be incomplete.

Media, Police, Human Rights, Family

Updated: 23 November 2022; Ref: scu.549907

Holmes v The United Kingdom: ECHR 10 Feb 2009

The applicant complained under Article 6 – 1 of the Convention that the ancillary relief proceedings were not dealt with within a reasonable time, that he was not given a real opportunity to present his case and that some of the judges involved in the proceedings were not impartial.

Judges:

Lech Garlicki, P

Citations:

5787/06, [2009] ECHR 429

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Family

Updated: 23 November 2022; Ref: scu.317935

In Re H (A Minor) (Chambers Proceedings: Mckenzie Friend): CA 6 May 1997

A father sought ex parte, permission to appeal against orders in the county court. The first had refused to allow him to have a McKenzie friend in an application for contact to his daughter. The Recorder had taken the view that because the proceedings were in chambers it was inappropriate to have anyone other than the parties and the lawyers present.
Held: Leave was given. It was proper for the court to allow a McKenzie friend for a litigant in person to help in chambers as in open court.
Ward LJ said: ‘The father seeks leave to appeal against that part of the recorder’s order which excluded his McKenzie Friend. I would easily come to the conclusion, not only that that was arguable, but that it was probably plainly wrong. The recorder ought not to have taken the view that a McKenzie friend should be removed, even if the matter proceeds in chambers as a matter affecting a child. Provided the McKenzie friend does not more than a McKenzie friend is entitled to do, that is to sit and advise and quietly to offer help, I for my part can see no objection to that whatever. I note with approval that when the matter next came to the court before his Honour Judge Paul Clarke the judge correctly and promptly , without question, permitted the presence of the friend who was then there to assist the father.’

Judges:

Ward LJ, Millett LJ

Citations:

Times 06-May-1997, [1997] EWCA Civ 1436, [1997] 2 FLR 423

Jurisdiction:

England and Wales

Cited by:

CitedO and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
CitedRe M (Contact: Family Assistance: McKenzie Friend) CA 1999
A father appealed a refual of consent for him to be allowed assistance from a McKenzie Friend.
Held: He should have been allowed assistance on the contact and other applications. It was ‘a matter of regret’ that the father had been denied the . .
CitedRegina v Bow County Court, Ex Parte Pelling CA 17-Dec-1999
Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, . .
Not bindingRegina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 05 November 2022; Ref: scu.81919

S v S-T (Formerly J): CA 25 Nov 1996

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.’

Judges:

Ward and Potter LJJ and Sir Brian Neill

Citations:

Times 25-Nov-1996, [1998] Fam 103, [1997] 3 WLR 1287

Statutes:

Matrimonial Causes Act 1973 25(1)

Jurisdiction:

England and Wales

Citing:

Applied reluctantlyCorbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .

Cited by:

CitedBellinger v Bellinger HL 10-Apr-2003
Transgender Male to Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
See AlsoJ v C and E (a Child) (Void Marriage: Status of Children) CA 15-May-2006
The parties had lived together as a married couple. They had had a child together by artificial insemination. It was then revealed that Mr J was a woman. The parties split up, and Mr J applied for an order for contact with the child.
Held: The . .
CitedBellinger v Bellinger CA 17-Jul-2001
Transgender Male may not marry as Female
Despite gender re-assignment, a person born and registered a male, remained biologically a male, and so was not a woman for the purposes of the law of marriage. The birth registration in this case had been correct. The words ‘male and female’ in the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 November 2022; Ref: scu.88963

Dart v Dart: CA 2 Jul 1996

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.

Judges:

Butler-Sloss LJ, Thorpe LJ, Peter Gibson LJ

Citations:

Gazette 02-Aug-1996, [1997] 1 FCR 286, [1996] 2 FLR 286, [1996] Fam Law 607, [1996] EWCA Civ 1343

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Citing:

CitedPage v Page CA 1981
In an ancillary relief application, there was enough capital to provide adequately for both husband and wife.
Held: When considering the needs and obligations of the parties a broad view could be taken: (Ormrod LJ) ‘In a case such as this . .
FollowedThyssen-Bornemisza v Thyssen-Bornemisza (No 2) 1985
. .

Cited by:

CitedWhite 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 . .
ConsideredConran v Conran FD 14-Jul-1997
In deciding financial settlement, the court can consider contribution made by the Wife through her own special skills to the husband’s business. One could not sensibly fit an allowance for contribution into an analysis of a wife’s needs. That would . .
CitedWilliams v Thompson Leatherdale (A Firm) and Another QBD 10-Nov-2008
The claimant sought damages from her legal advisers. They had allowed her to settle an ancillary relief application knowing that the case of White v White had been referred to the House of lords, and the settlement proved to have been on . .
CitedRadmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 October 2022; Ref: scu.79813

Pounds v Pounds: CA 24 Feb 1994

Consent orders giving effect to financial settlements are to be drafted and dated with care. The one in this case mistakenly pre-dated the decree nisi. It was amended under the slip rule.

Judges:

Neill LJ, Hoffmann LJ, Waite LJ

Citations:

Times 17-Mar-1994, Independent 03-Mar-1994, [1994] EWCA Civ 10, [1994] 1 WLR 1535, [1994] 2 FCR 1055, [1994] 1 FLR 775

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedRadmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 26 October 2022; Ref: scu.84818

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 to the Court of Appeal. In particular the judge may choose to hear fresh evidence: ‘No party shall be entitled as of right to adduce further evidence or oral evidence but the judge may in his discretion admit such further or oral evidence as he thinks relevant and just upon such terms as he thinks fit.’

Judges:

Sir Stephen Brown P

Citations:

Ind Summary 01-Mar-1993, Times 16-Feb-1993, [1993] 1 WLR 744

Statutes:

Family Proceedings Rules 1991 8.1(2) 8.1(3) 4.23, County Court Rules 1981 Order 37 Rule 6, Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Cited by:

ReconsideredCordle v Cordle CA 15-Nov-2001
The former practice in ancillary relief applications where a circuit judge hearing an appeal from a district judge could admit new evidence and hear the case de novo should not survive the new rules, and should cease. An appeal to the circuit judge . .
CitedPiglowska v Piglowski HL 24-Jun-1999
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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 26 October 2022; Ref: scu.83425

Jones v Jones: CA 19 Mar 1993

H appealed against his sentence of six months imprisonment for contempt of court in breaching a non-molestation order.
Held: Whilst Ansah could not be used to establish a principle that imprisonment for contempt should be a last resort only, the sentence here could be reduced to three months. The use of committal orders in contempt cases in family proceedings need not necessarily only be in the last resort.

Judges:

Russell, Simon Brown LJJ, Sir Michael Fox

Citations:

Times 23-Mar-1993

Jurisdiction:

England and Wales

Citing:

CitedAnsah v Ansah CA 1977
Ormrod LJ: ‘Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party: see Craig v Karssen [1943] KB 256, 262. Nevertheless, the power of the court to . .
Lists of cited by and citing cases may be incomplete.

Family, Contempt of Court

Updated: 26 October 2022; Ref: scu.82606

In Re F (Minors) (Parental Home: Ouster): CA 1 Dec 1993

Neither the Children Act nor the court’s inherent jurisdiction allows the making of an ouster order without violence. A specific issue order gave no jurisdiction for the ouster of a joint tenant father. In the case of an ouster order to protect children, the court may use its power to order a transfer of property.

Citations:

Times 01-Dec-1993, Gazette 26-Jan-1994, Ind Summary 13-Dec-1993

Statutes:

Children Act 1989 15

Jurisdiction:

England and Wales

Children, Family

Updated: 26 October 2022; Ref: scu.81880

E v E (Non-Molestation Order): CA 3 Jan 1994

H had been found to have twice attempted to rape W. She applied for ouster and non-molestation orders. She appealed against an order which allowed him to continue to live in the matrimonial home, but with a non-molestation provision excluding him from her bedroom and supported by a power of arrest. She had told the judge ‘I do not necessarily want him to go. I want my safety and peace.’
Held: After such a finding, an ouster order would be the normal consequence, but the judge retained a discretion to make his own judgment on the evidence. The order actually made was, in the light of W’s statement, within those open to him under that discretion. An ouster may not be necessary unless W says that it is required, even in otherwise clear circumstances.

Judges:

Balcombe LJ, Peter Gibson LJ

Citations:

Times 03-Jan-1994

Jurisdiction:

England and Wales

Family

Updated: 26 October 2022; Ref: scu.80201

Brooks v Brooks: CA 27 May 1994

A single member pension fund scheme was a post nuptial settlement within the Act, and was variable by the court on a divorce. No third party would be affected.

Citations:

Independent 27-May-1994, Times 27-May-1994

Statutes:

Matrimonial Causes Act 1973 24(1)(c)

Jurisdiction:

England and Wales

Cited by:

Appeal fromBrooks v Brooks HL 29-Jun-1995
A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 26 October 2022; Ref: scu.78674

FD (Inherent Jurisdiction: Power of Arrest): FD 28 Sep 2016

The issue before the court is whether a power of arrest may be attached to an injunction granted by the High Court under its inherent jurisdiction in the case of a vulnerable adult who has capacity.

Judges:

Clifford Bellamy HHJ

Citations:

[2016] EWHC 2358 (Fam), [2016] WLR(D) 498

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Family

Updated: 25 October 2022; Ref: scu.569863

Vallianatos and Others v Greece: ECHR 7 Nov 2013

Grand Chamber Judgment. The applicants alleged that the fact that the ‘civil unions’ introduced by the respondent were designed only for couples composed of different-sex adults had infringed their right to respect for their private and family life and amounted to unjustified discrimination between different-sex and same-sex couples, to the detriment of the latter.
Held: The introduction of registered partnerships only for different sex couples, to exist alongside marriage which was also only open to different sex couples, constituted a breach of article 14 read with article 8 of the Convention

Judges:

Dean Spielmann, P

Citations:

29381/09, [2013] ECHR 1110, 32684/09, 36 BHRC 149, (2014) 59 EHRR 12

Links:

Bailii

Statutes:

European Convention on Human Rights 8 14

Jurisdiction:

Human Rights

Citing:

Legal SummaryVallianatos And Others v Greece (LS) ECHR 7-Nov-2013
ECHR (Grand Chamber) Article 14
Discrimination
Exclusion of same-sex couples from ‘civil unions’: violation
Facts – The first application was lodged by two Greek nationals, and the second by six . .

Cited by:

CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
CitedSteinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Discrimination

Updated: 25 October 2022; Ref: scu.517642

Akhter v Khan: FC 31 Jul 2018

The petitioner issued a petition for divorce from the respondent, or alternatively a decree of nullity. The husband argued against both saying that the parties had not entered a marriage valid according to English law. W averred that the presumption of marriage arising out of cohabitation and reputation applied so as to validate the marriage. In the alternative, she averred that the marriage was a void marriage within section 11(a)(iii) of the Matrimonial Causes Act 1973.
Held: A decree of nullity was granted. The Court rejected the Petitioner’s submission that the presumption in favour of marriage applied because it denied that the court could presume a second ceremony of marriage in Dubai. Since no party sought to argue that the 1998 ceremony had created a valid marriage under English law, the judge said that this left the issue of whether it created ‘what has become termed a non-marriage’, or alternatively a void marriage which entitled the Petitioner to a decree of nullity under s. 11 of the 1973 Act.
It was ‘beyond argument that the concept of a form of marriage which was neither valid according to English law nor void had been accepted in . . . 11 cases . . . spanning a period of some 50 years’. He decided, however, that the current approach, as applied in those cases, to the question ‘of whether what the parties did can properly be evaluated as an attempt to comply with the formalities required in English law to create a valid marriage’, and was therefore ‘a ceremony within the scope of the’ legislation, must ‘be supplemented’ by his ‘conclusions in relation to some of the human rights arguments’ which had been advanced on behalf of the Petitioner.

Judges:

Williams J

Citations:

[2018] EWFC 54, [2019] 1 FLR 575, [2018] WTLR 729, [2019] 1 FCR 24, [2019] Fam 247, [2019] 2 WLR 771

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 11(a)(iii)

Jurisdiction:

England and Wales

Cited by:

Appeal fromHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.

Family, Human Rights

Updated: 16 October 2022; Ref: scu.621629

Work v Gray: CA 11 Apr 2017

Husband’s appeal from order for equal division of family assets.

Judges:

Sir Terence Etherton MR, King LJ and Moylan LJ

Citations:

[2017] EWCA Civ 270, [2017] WLR(D) 274, [2018] Fam 35, [2017] 3 WLR 535, [2017] 2 FLR 1297, [2017] 2 FCR 810

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal fromGray v Work FD 6-Mar-2015
Wife’s application for a financial remedies order after a divorce. . .

Cited by:

CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 October 2022; Ref: scu.582103

Dukali v Lamrani: FD 15 Mar 2012

W sought permission to seek financial relief under section 13. H denied that there had been a marriage. There had been a civil ceremony at the Moroccan consulate, the parties each having dual Moroccan and British citizenship, and: ‘the issue is whether what judges have recently labelled or characterised as a ‘non-marriage’ under English law, so as to be outside the scope of an English suit for matrimonial relief under the Matrimonial Causes Act 1973, can nevertheless amount to a ‘marriage’ for the purpose of financial relief under Part III of the 1984 Act.’
Held: It could not.
Holman J said: ‘Despite all these points and considerations, however, I have reached the firm view, submitted not only on behalf of the husband but also by counsel on behalf of the intervening Attorney-General, that the word ‘marriage’ in s 12 and Part III generally of the MFPA must mean, and can only mean, a marriage which is, or under English law is recognised as, a valid or at least a void marriage. That is the natural meaning and scope of the word ‘marriage’ when used in this context. Far from needing to use words of limitation or exclusion to limit ‘marriage’ to a valid or void marriage, Parliament would have needed to use express words of inclusion if it had intended to enlarge and include within the word ‘marriage’ even what is characterised here as a non-marriage. That is particularly so in the case of a marriage which was actually contracted in England. If the marriage relied upon is a ceremony which took place here but which was so irregular and altogether outside the scope of the Marriage Acts as not to be a marriage at all, not even a void one, then in my view it would require clear words from Parliament before it could fall within the scope of s 12 and Part III [of the 1984 Act].’

Judges:

Holman J

Citations:

[2012] EWHC 1748 (Fam)

Links:

Bailii

Statutes:

Matrimonial and Family Proceedings Act 1984 13

Jurisdiction:

England and Wales

Cited by:

ApprovedSharbatly v Shagroon CA 21-Nov-2012
. .
CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 October 2022; Ref: scu.460520

Sharbatly v Shagroon: CA 21 Nov 2012

Judges:

Thorpe, Black LJJ, Hedley J

Citations:

[2012] EWCA Civ 1507, [2013] 1 FLR 1493, [2012] WLR(D) 337, [2013] Fam Law 394, [2013] 1 FCR 467, [2013] Fam 267, [2013] 2 WLR 1255

Links:

Bailii

Statutes:

Matrimonial and Family Proceedings Act 1984 12

Jurisdiction:

England and Wales

Citing:

ApprovedDukali v Lamrani FD 15-Mar-2012
W sought permission to seek financial relief under section 13. H denied that there had been a marriage. There had been a civil ceremony at the Moroccan consulate, the parties each having dual Moroccan and British citizenship, and: ‘the issue is . .

Cited by:

CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 October 2022; Ref: scu.465944

AB (Surrogacy: Consent), Re: FC 25 Oct 2016

Both the surrogate and her husband refused to agree to the order even though they had handed over the child to the commissioning parents. All the court could do was make a child arrangements order which gave them parental responsibility but left the child a member of the surrogate’s family. Theis J commented that an adoption order would be inappropriate as the parents would be asking to adopt their own children: a parental order recognises their genetic link to the child. She did, however, adjourn the parental order application generally in the hope of a change of mind or a change in the law.

Judges:

Mrs Justice Theis DBE

Citations:

[2016] EWHC 2643 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedWhittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 11 October 2022; Ref: scu.570770

Z (A Child) (No 2): FD 20 May 2016

Application for parental order by one person.
Otherwise In re Z (Surrogate Father: Parental Order) (No 2)

Judges:

Sir James Munby P

Citations:

[2016] EWHC 1191 (Fam), ZC15P00214, [2016] Fam Law 958, [2016] 2 FLR 327, [2016] HRLR 15, [2017] Fam 25, [2016] WLR(D) 278, [2016] 3 WLR 1369

Links:

Bailii, Judiciary, WLRD

Statutes:

Human Fertilisation and Embryology Act 2008 54

Jurisdiction:

England and Wales

Cited by:

CitedWhittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 October 2022; Ref: scu.564509

J v B (Ultra-Orthodox Judaism: Transgender): FC 30 Jan 2017

F had left the family all ultra orthodox Jews, to identify and live as a woman, an action straightforwardly forbidden within the sect. F had abandoned contact with the children but now sought to re-instate at first indirect but then full contact. M, fearing the ostracism of the children opposed all but very limited indirect contact.
Held: There was a clear conflict between the rights and proper expectations of the parties. In this case, the probability was that the children would face ostracism from others within their faith group. Only limited and indirect contact as appropriate.

Judges:

Peter Jackson J

Citations:

[2017] EWFC 4, [2017] WLR(D) 142, [2017] 2 FCR 230, [2017] 4 WLR 201, [2018] 1 FLR 59

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal fromRe M (Children) CA 20-Dec-2017
F and M were members of an ultra orthodox Jewish sect. H transgendered, a process utterly unacceptable within the sect. Any continued association with the children would severely risk their ostracism, and at first F did not seek contact, but on his . .
At FD (1)A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) FC 20-Jan-2020
M and F, members of an ultra orthodox Jewish sect, had five children. F transgendered and sought and was granted an order for restricted indirect contact. The Court of Appeal allowed his appeal and the case was remitted for reconsideration.
Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 05 October 2022; Ref: scu.573770

Abdulaziz, Cabales And Balkandali v United Kingdom: ECHR 28 May 1985

The claimants had each settled within the UK in accordance with Immigration rules, but now challenged refusal of leave to remain to their husbands who sought to join them.
Held: Article 8 did not impose a ‘general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country’.
‘Whatever else the word ‘family’ may mean, it must at any rate include the relationship that arises from a lawful and genuine marriage . . even if a family life . . has not yet been fully established’.

Citations:

9473/81, [1985] ECHR 7, 9214/80, 9474/81, (1985) 7 EHRR 471

Links:

Bailii

Statutes:

European Convention on Human Rights 3 8

Jurisdiction:

Human Rights

Cited by:

CitedAli and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Family

Updated: 20 September 2022; Ref: scu.445027

Al-Saedy v Musawi: FD 29 Oct 2010

The wife sought a divorce. The respondent denied that there had been any marriage recognised in law.

Judges:

Bodey J

Citations:

[2010] EWHC 3293 (Fam), [2011] 2 FLR 287, [2011] Fam Law 689

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 September 2022; Ref: scu.440452

The Official Solicitor To The Senior Courts v Yemoh and Others: ChD 15 Dec 2010

The deceased had died intestate in 1985, and the administration concluded only lately by the Official Solicitor, who now sought guidance from the court on the administration of the estate, given that he had been party to eight customary polygamous (but lawful) marriages, with associated numbers of children.

Judges:

Elleray QC J

Citations:

[2010] EWHC 3727 (Ch)

Links:

Bailii

Statutes:

Judicial Trustee Act 1896, Administration of Estates Act 1925 46(1)

Jurisdiction:

England and Wales

Wills and Probate, Family

Updated: 13 September 2022; Ref: scu.440435

JB v D: FD 28 Jun 2016

‘This case has been listed before me today to deal with 3 issues: –
(i). The status of the Hague Convention Proceedings issued by the mother;
(ii) Whether the court has jurisdiction to make further Orders relevant to SJ, who is 9 years old, either under the Inherent Jurisdiction of the High Court to enforce its own Order, or under the Parens Patriae jurisdiction;
(iii) Whether the Court should make Orders for the return of SJ to Poland.’

Judges:

Hayden J

Citations:

[2016] EWHC 1607 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 12 September 2022; Ref: scu.566832

AB v CB: FD 10 Oct 2012

Whether English divorce proceedings instituted here by the wife AB should be stayed to enable Indian proceedings for divorce instituted there earlier by CB.
Held: Bodey J stayed the wife’s English petition on the ground that India was the more appropriate forum to hear the proceedings (forum non conveniens).

Judges:

Bodey J

Citations:

[2012] EWHC 3841 (Fam), [2013] 2 FLR 29, [2013] Fam Law 384

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedA v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Appeal fromMittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 September 2022; Ref: scu.470753

JKN v JCN (Divorce: Forum): FD 19 Apr 2010

Ms Theis QC decided that proceedings were only ‘governed’ by BIIR if they fell within article 19 of BIIR

Judges:

Ms Lucy Theis QC I

Citations:

[2010] EWHC 843 (Fam), [2011] 1 FLR 826, [2010] Fam Law 796, [2011] 2 FCR 33

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedA v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
CitedMittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction, European

Updated: 09 September 2022; Ref: scu.415945

Ambrosiadou v Coward: CA 12 Apr 2011

The claimant appealed against a refusal to continue an injunction restricting publication of documents filed within divorce ancillary relief proceedings.

Judges:

Lord Neuberger MR, Leveson, Pitchford LJJ

Citations:

[2011] EWCA Civ 409

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromAmbrosiadou v Coward QBD 15-Jul-2010
. .

Cited by:

CitedCTB v News Group Newspapers Ltd and Another (1) QBD 16-May-2011
A leading footballer had obtained an injunction restraining the defendants from publishing his identity and allegations of sexual misconduct. The claimant said that she had demanded money not to go public.
Held: It had not been suggested that . .
Lists of cited by and citing cases may be incomplete.

Family, Media

Updated: 06 September 2022; Ref: scu.432646

Birch v Birch: SC 26 Jul 2017

The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her performance until the youngest child attained 18. H objected that the court had no jurisdiction to hear such an application. W’s appeal to the CA was only technically successful – the court did have a limited ability, but there was no reason for its exercise in this case.
Held: (Lord Hughes dissenting) The appeal succeeded. The court did have jurisdiction to hear W’s application, and the case was remitted to HHJ Waller to decide whether the jurisdiction should be exercised.

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes

Citations:

[2017] UKSC 53, [2017] 3 FCR 111, [2017] 2 FLR 1031, [2017] 1 WLR 2959, [2017] WLR(D) 557, [2018] 1 All ER 108, UKSC 2015/0230

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 170522 am Video, SC 150522 pm Video

Statutes:

Matrimonial Causes Act 1973 24A, Matrimonial Homes and Property Act 1981, Matrimonial and Family Proceedings Act 1984

Jurisdiction:

England and Wales

Citing:

CitedCutler v Wandsworth Stadium Ltd CA 1945
Morton LJ criticised an application to vary an undertaking given to it: ‘ . . the court does not vary an undertaking given by a litigant. If the litigant has given an undertaking and desires to be released from that undertaking, the application . .
Appeal fromBirch v Birch CA 31-Jul-2015
Application to vary undertaking given in a financial relief application. They had obtained a consent order compromising their claims. W undertook to obtain the release of H from his mortgage covenants. She had been unsuccessful in doing so and . .
CitedRussell v Russell CA 1956
The husband appealed against a judge’s refusal to release him from an undertaking that, unless he was out of work, he would not apply for a downwards variation of an order for maintenance in favour of the wife.
Held: The husband had ‘wholly . .
CitedKensington Housing Trust v Oliver CA 1997
After the tenant caused flooding of flats underneath her flat. As a result the landlord had obtained an order for possession of it but it had undertaken to the court to offer the tenant specified alternative accommodation at basement or ground floor . .
Valuable guidanceMid Suffolk District Council v Clarke CA 15-Feb-2006
The council had taken proceedings against a farmer whose production of swill, for feeding to pigs, was emitting a smell which local residents found scarcely tolerable. Rather than suffer the making of an injunction against him, the farmer had . .
CitedThompson v Thompson CA 1986
An order had been made in 1981 for the home not to be sold until the youngest child had attained the age of 17 ‘or further order’. The wife, who was living in the home with the children, against a judge’s determination that he had no jurisdiction to . .
CitedTaylor v Taylor CA 1987
An order had been made for the wife to have exclusive occupation of the home and on its sale to receive 40% of the net proceeds. A recorder had acceded to a subsequent application by the husband under section 24A for the immediate sale of the home. . .
CitedL v L FD 2-May-2006
The husband had accepted an obligation to make periodical payments to the wife but the obligation had been expressed as an undertaking on his part rather than as an order by consent for periodical payments pursuant to section 23(1)(a) of the Act. . .
CitedDinch v Dinch HL 1987
Consent orders had been made for maintenance and financial provision. The House was now asked whether the former wife could seek a property adjustment order of a type that had been sought in her petition but had not been made by the consent orders. . .
CitedWestbury v Sampson CA 23-Mar-2001
The claimant was advised to accept a consent order that his wife should pay him a capital sum in the divorce, but by instalments. The wife later successfully applied to have the sum reduced. He sought to claim against his former solicitors for not . .
CitedOmielan v Omielan CA 30-Jul-1996
H and W entered into a consent order which related in particular to their home, vested in their joint names, in which the wife wished to continue to reside with the children of the family. Part of the order was a property adjustment order: it was, . .
CitedMinton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
CitedMyerson v Myerson (No 2) CA 1-Apr-2009
The couple had compromised a very substantial ancillary relief claim on divorce, but the husband now said that the value of the shareholdings from which payment was to be made had collapsed.
Held: His appeal was dismissed. The principles for . .
CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
CitedBarder v Calouri HL 1987
In divorce proceedings, the husband transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20th February 1985 and on 25th March an appalling tragedy . .
CitedWard v Ward and Greene 1980
It was argued that in order for the court fully to flex its powers at final hearing under section 23 and section 24 MCA 1973, it was necessary to issue a separate application under the MWPA 1882 (or the Law of Property Act 1925). . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 03 September 2022; Ref: scu.591173

G v E and Others: FD 21 Dec 2010

(Court of Protection) Baker J awarded costs against a local authority which had been guilty of misconduct which, he held, justified departure from the general rule. He observed: ‘Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made . . It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear.’ and ‘Gone are the days when it is appropriate for a court to dismiss applications for costs on the basis that it all comes out of the same pot’.

Judges:

Baker J

Citations:

[2010] EWHC 3385 (Fam), [2011] Fam Law 473, (2011) 14 CCL Rep 140, [2011] 1 FLR 1566

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoG v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
See AlsoG v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .

Cited by:

Appeal fromManchester City Council v G and Others CA 2-Aug-2011
The Council had been found to have wrongfully deprived the applicant of his liberty. They appealed now against an award of costs made against them.
Held: The appeal failed. The judge the power to depart from the usual order made under rule 157 . .
CitedIn re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
CitedRe S (A Child) SC 25-Mar-2015
The Court was asked as to the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. It arises in the specific context of a parent’s successful appeal to the . .
Lists of cited by and citing cases may be incomplete.

Costs, Family

Updated: 03 September 2022; Ref: scu.430396

Richardson v Richardson: CA 8 Feb 2011

Application was made to vary an ancillary relief order on the basis of a Calouri style change of circumstances.

Judges:

Thorpe, Rimer, Munby LLJ

Citations:

[2011] EWCA Civ 79

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedBarder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the . .
CitedJudge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 September 2022; Ref: scu.428535

Omielan v Omielan: CA 30 Jul 1996

H and W entered into a consent order which related in particular to their home, vested in their joint names, in which the wife wished to continue to reside with the children of the family. Part of the order was a property adjustment order: it was, specifically, a variation of settlement order under which the proportions of the beneficial ownership of the home were recast so as to become 25% for the wife and 75% for the children. But there was also an order for sale of the home under section 24A of the Act. It provided that the home be sold but only on the occurrence of any one of four trigger events, including the event that the wife had cohabited with another man for at least six months. Shortly after the order was made the husband and wife executed a deed of trust under which they declared themselves to be trustees of the home on the above terms. Subsequently, on discovering that the wife had cohabited with another man for at least six months, the husband applied for an order that the sale of the home should take place at once; and the wife countered with an application under section 31(1) and (2)(f) of the Act for the order for sale of the home to be varied so as to postpone it until the youngest child, then aged nine, attained the age of 18.
Held: The husband’s appeal against a judge’s refusal to dismiss the wife’s application for variation was allowed. There were patently no grounds for exercising the jurisdiction to vary the order for sale. Power exists to vary a condition of sale of house on divorce but not the main order.
Thorpe LJ pointed out that the vested beneficial interest of the children in reversion had, once the wife had cohabited for six months, become an interest in possession; and that she was seeking to put it back into reversion.

Judges:

Thorpe, Butler-Sloss and Peter Gibson LJ

Citations:

Times 30-Jul-1996, [1996] 2 FLR 306

Statutes:

Matrimonial Homes and Property Act 1981

Jurisdiction:

England and Wales

Cited by:

CitedBirch v Birch SC 26-Jul-2017
The parties, on divorcing had a greed, under court order that W should obtain the release of H from his covenants under the mortgage of the family home. She had been unable to do so, and sought that order to be varied to allow postponement of her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 01 September 2022; Ref: scu.84452

McDonald v Newton or McDonald: SC 26 Jul 2017

‘ The appellant . . seeks a pensions sharing order under section 8(1)(baa) of the 1985 Act on her divorce from her husband (‘Mr McDonald’) on the basis that his pension forms part of the matrimonial property which is taken into account in fixing financial provision. It is a central principle in the 1985 Act relating to such financial provision that ‘the net value of the matrimonial property’ should be shared fairly between the parties to the marriage. This appeal raises the question as to what proportion of a person’s pension rights falls within the definition of ‘matrimonial property’. In particular, is it necessary that the holder of the pension rights contributed to his or her pension during the marriage in order for any part of his or her interest in the pension to be matrimonial property?’
Held: The appeal was allowed: ”period of the membership’ in regulation 4 of the 2000 Regulations refers to the period of the person’s membership of the pension arrangement, whether or not contributions are being made to that arrangement in that period.’

Judges:

Lady Hale, Deputy President, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Hodge

Citations:

[2017] UKSC 52, 2017 GWD 23-395, 2017 Fam LR 78, 2017 SC (UKSC) 142, 2018 SCLR 26, 2017 SLT 837, UKSC 2016/0015

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170511 am Video

Statutes:

Family Law (Scotland) Act 1985, Divorce etc (Pensions) (Scotland) Regulations 1996, Divorce etc (Pensions) (Scotland) Regulations 2000

Jurisdiction:

Scotland

Citing:

Appeal fromMcDonald v Flockhart Moffat Newton or McDonald SCS 11-Aug-2015
(Extra Division, Inner House) W claimed for a pension sharing order under section 8(1)(baa) of the Family Law (Scotland) Act 1985. The Court was now asked: ‘what proportion of the value of her husband’s rights or interests in the British Coal Staff . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 31 August 2022; Ref: scu.591175

Barrass v Harding: CA 27 Jun 2000

Elizabeth Butler-Sloss

Judges:

Elizabeth Butler-Sloss D P, Thorpe LJ

Citations:

[2000] EWCA Civ 521, [2000] Fam Law 878, [2001] 1 FLR 138, [2000] WTLR 1071, [2001] 1 FCR 297

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependants Act) 1975 2

Jurisdiction:

England and Wales

Wills and Probate, Family

Updated: 31 August 2022; Ref: scu.428030

Re A (A Child): FD 12 Feb 2015

An NHS Trust, sought declarations in relation to Child A, who had been declared clinically dead. That declaration was confirmed by two brain stem tests, the latter taking place, confirming the results of the earlier test and, therefore, supporting the declaration i.e. that brain stem death had occurred at 10.10am on that date. He had choked on a satsuma stem. The request was opposed by the parents.

Judges:

Hayden J

Citations:

[2015] EWHC 443 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Health

Updated: 29 August 2022; Ref: scu.543961

T v T: FD 6 Oct 2010

The court heard an application for the discharge of an asset freezing order made in the course of ancillary relief proceedings.
Held: H should have acceded to the open offer made by W for the value to be reduced. His applications failed and the order was varied as offered by W with costs accordingly.

Judges:

Sir Nicholas Wall P

Citations:

[2010] EWHC 2392 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Litigation Practice

Updated: 25 August 2022; Ref: scu.424947

Re Z (restraining solicitors from acting): FD 21 Dec 2009

Application by a husband, the respondent in the wife’s divorce proceedings, by which he seeks an order that the wife’s solicitors be debarred from acting any further for her in the divorce or financial matters and that they do remove themselves from the court record.

Judges:

Bodey J

Citations:

[2010] Fam Law 458, [2009] EWHC 3621 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Family

Updated: 22 August 2022; Ref: scu.421350

Imerman v Imerman: FD 11 Dec 2009

Judges:

Moylan J

Citations:

[2009] EWHC 3486 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See AlsoTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
See AlsoImerman v Imerman FD 13-Jan-2010
. .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 22 August 2022; Ref: scu.421346

Weiner v Weiner: FD 15 Jul 2010

The parties, both Swedish nationals had been habitually resident in England for fifteen years. They had properties in both countries. They disputed the proper forum to resolve their divorce.
Held: Referring to the Regulation, Holman J said: ‘The Article does not say that a court is seised when the document has been lodged and the applicant has effected (or taken a required step to effect) service. It says that the court is seised when the document is lodged, subject to the proviso (which may only be assessed from some later perspective of hindsight) that there has not been a subsequent failure to take the required steps.’

Judges:

Holman J

Citations:

[2010] EWHC 1843 (Fam)

Links:

Bailii

Statutes:

Council Regulation (EC) No. 2201/2003 of 27 November, 2003

Jurisdiction:

England and Wales

Cited by:

CitedThum v Thum FC 21-Oct-2016
No abuse of process in service error
The husband claimed that the W was guilty of abuse of process by issuing the divorce petion, but then not serving it for many months in an attempt to gain a tactical jurisdictional advantage under Brussels II.
Held: H’s application was . .
Lists of cited by and citing cases may be incomplete.

Family, European

Updated: 21 August 2022; Ref: scu.421093

Ambrosiadou v Coward: QBD 15 Jul 2010

Citations:

[2010] EWHC 1794 (QB)

Links:

Bailii

Cited by:

Appeal fromAmbrosiadou v Coward CA 12-Apr-2011
The claimant appealed against a refusal to continue an injunction restricting publication of documents filed within divorce ancillary relief proceedings. . .
Lists of cited by and citing cases may be incomplete.

Media, Family

Updated: 21 August 2022; Ref: scu.420950