Tag: Family

SRJ v DWJ (Financial Provision): CA 20 Oct 1999

There is no presumption in favour of a clean break provision in an ancillary relief claim. A nominal award of maintenance was appropriate where the wife’s long dependency and continued responsibility for children made future earning capacity problematic. A dismissal of a claim for maintenance where the wife was relatively mature should not be expected. Fairness requires that the aspect of compensation should be taken into account by the court when exercising its statutory powers

Citations:

Gazette 20-Oct-1999, [1998] EWCA Civ 1634, [1999] 2 FLR 176

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 23

Jurisdiction:

England and Wales

Cited by:

Cited – Miller 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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 20 May 2022; Ref: scu.89463

Maclurcan v Maclurcan: CA 1897

A wife sought a divorce petition for her husband’s adultery. On her application for maintenance, a sum of andpound;90 per annum was to be secured for her life on interests of the husband under two wills.
Held: The court confirmed the report and directed that: ‘The payment of andpound;90 per annum, payable monthly, be secured to petitioner for her life on the share of residue taken by respondent under the two wills referred to in the said report, and that a deed of assignment of respondent’s interest on the terms mentioned in the said report be drawn as agreed between the parties, or settled by a conveyancing counsel of the Chancery Division of the court’.
The husband later claimed he was being put to needless expense in formally completing a security. The wife was content to continue to receive the monthly payments and did not press for the completion of any security. Thereafter, the parties agreed changes to the amount of maintenance payable by the husband, and eventually the wife executed a deed releasing the annuity and agreeing not to enforce the court order. Subsequently, the wife applied to set aside the release and for an order that the husband pay the annuity of andpound;90 per annum directed by the original order. The judge at first instance concluded that since the original order had not been perfected by the completion of the security the wife’s release was ineffective, and he ordered the husband to carry out the terms of the original order and to execute a deed of security. The husband appealed, contending that the wife was in a position to release the annuity as soon as the order was made. For the wife it was contended that until the security was perfected the wife had nothing to release.
Held: The husband’s appeal succeeded. An order for periodical payments to be secured on identified property, with provision for the security to be completed by the execution of a deed in appropriate form, has the effect of creating an immediate equitable charge over the property pending the completion of the security in accordance with the order.
Lindley LJ began by considering under what jurisdiction the original order was made. He concluded that it was made under section 32 of the Divorce and Matrimonial Causes Act 1857, in the following terms: ‘The court may, if it shall think fit, on any [decree of dissolution of marriage] order that the husband shall, to the satisfaction of the court secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable, and for that purpose may refer it to any one of the conveyancing counsel to the court of Chancery to settle and approve of a proper deed or instrument to be executed by all necessary parties; . . .’ He went on: ‘The moment this order was made the wife had an equitable charge on the property which could be enforced at once.’
Chitty LJ agreed: ‘The charge is given by the order, and the deed is only for the purpose of carrying out the order.’

Judges:

Lindley LJ

Citations:

(1897) 77 LT 474

Jurisdiction:

England and Wales

Cited by:

Doubted – Mountney v Treharne CA 8-Aug-2002
In ancillary relief proceedings in a divorce, the husband had been ordered to transfer his interest in property to his wife. Before it was put into effect, he became insolvent. The wife and receiver competed for the interest to have been . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.183329

Practice Directions (Family Proceedings: Costs): FD 4 May 1999

Family Courts will continue to have jurisdiction under the Inheritance and the Trusts of Land provisions. The new CPR rules on costs will apply in the Family Courts where the nearest similar procedural steps will be applied for this purpose.

Citations:

Times 04-May-1999

Statutes:

Civil Procedure Rules Rule 2.4

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.84970

Practice Note (Family Proceedings: Vacation Business): FD 9 Jul 1999

Lists arrangements for family hearings during the long vacation, including Injunctions and committals and releases, children application less than one day, a matter certified as vacation business, and hearings of more than a day certified by a High Court Judge.

Citations:

Times 09-Jul-1999

Jurisdiction:

England and Wales

Family

Updated: 19 May 2022; Ref: scu.84982

Dorney-Kingdom v Dorney-Kingdom: CA 25 Jul 2000

A court may not make an original order for child maintenance, save by consent. The practice of disguising such an order, as part of spousal maintenance, pending a determination by the Child Support Agency, was only legitimate where there was included a real element of spousal maintenance. Simply calling child maintenance spousal maintenance is not correct or legitimate.

Citations:

Times 25-Jul-2000, Gazette 27-Jul-2000

Statutes:

Child Support Act 1991 8(5)

Jurisdiction:

England and Wales

Children, Family, Child Support

Updated: 19 May 2022; Ref: scu.80101

D v P (Forum Conveniens): FD 7 Oct 1998

Where parties had divorced here, but had previously entered into a separation agreement abroad, it was proper to stay the ancillary relief proceedings here, and prefer the jurisdiction where the agreement had been made.

Citations:

Gazette 07-Oct-1998, [1998] 2 FLR 25

Cited by:

Cited – Moore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 19 May 2022; Ref: scu.79765

D v D (Recognition of Foreign Divorce): FD 13 Oct 1993

Ghanaian dissolution of marriage was invalid and not recognised here since the wife had not been allowed any involvement.

Citations:

Independent 13-Oct-1993, [1994] 1 FLR 38

Statutes:

Family Law Act 1986 46

Jurisdiction:

England and Wales

Cited by:

Cited – Duhur-Johnson v Duhur-Johnson FD 3-May-2005
The husband sought to stay divorce proceedings commenced here by his wife, saying that they had already been divorced in Nigeria. The wife said the Nigerian proceedings should not be recognised in English law.
Held: The cases established: 1) . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.79757

D v D (Production Appointment): FD 29 Nov 1995

An accountant’s professional privilege was overborne by the court, and a wider disclosure was approved. The court set a wide boundary around the scope of the documents which he was ordering the wife’s accountant to produce: ‘If the boundary is set narrow, there is the risk that information as to the nature and extent of the [wife’s] financial circumstances may be lost to the detriment of the husband and to the obstruction of the court in its duty to carry out the s.25 exercise as between the husband and the wife.’

Judges:

Thorpe J

Citations:

Gazette 29-Nov-1995, [1995] 2 FLR 497

Statutes:

Matrimonial Causes Act 1973 825

Cited by:

Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 May 2022; Ref: scu.79761

Bater v Greenwich London Borough Council: CA 28 Sep 1999

The couple being joint tenants of the matrimonial home had applied for its purchase form the Council. Divorce proceedings commenced and she purported to terminate the joint tenancy. He applied to set aside the notice, and the Local Authority intervened. Neither the right to buy, nor the notice to terminate were dispositions of property, and the Court had no capacity to set them aside.
Held: ‘It is now established beyond a peradventure that a right to buy is dependant on the existence of a secure tenancy to which it is incidental.’

Citations:

Gazette 02-Sep-1999, Times 28-Sep-1999, [1999] EWCA Civ 1920, [1999] 2 FLR 993

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 37(2)(b)

Jurisdiction:

England and Wales

Family, Landlord and Tenant

Updated: 18 May 2022; Ref: scu.78285

Roche v Roche: CA 1981

Citations:

(1981) Fam Law 243

Statutes:

Matrimonial Causes Act 1973 37

Cited by:

Applied – Shipman v Shipman FD 1991
W sought an order under s37 of the 1973 Act restraining H in divorce proceedings from disposing of or dealing with $300,000, or one half of his severance pay, whichever was the greater, pending determination of the ancillary relief proceedings.
Cited – London Borough of Harrow v Johnstone HL 13-Mar-1997
A possession action was lawful against a remaining joint tenant after a notice to terminate the tenancy had been given by the other tenant. An order against interference with possession of property did not extend to matters of the duration of the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 May 2022; Ref: scu.564372

14 Jac Cr 417 Saunders v Esterby, Hob 216, v Collateral Assumpsit, Collateral Promises Must Be Put In Writing By 29 C 2, Cap 3: 1220

An assumpsit lies against an executor upon a collateral promise of the testator ; as upon the testator’s promise to the plaintiff, if he will marry his daughter, that he shall have as much for her portion as any other of his daughters had. Judged and affirmed in error. This judgment is against former opinions for a collateral promise not broken in the life of the testator.

Citations:

[1220] EngR 167, (1220-1623) Jenk 336, (1220) 145 ER 244 (D)

Links:

Commonlii

Family, Wills and Probate

Updated: 18 May 2022; Ref: scu.461079

Green v Green: 1981

Section section 37(3) of the 1983 Act was not wide enough in its terms to enable a judge to set aside a disposition granted by someone other than the husband or wife. That was because sub-section 3 only enabled a judge to give directions ‘consequential’ on setting aside a disposition which was reviewable under sub-section 2 and sub-section 2 only applied to dispositions made by one or other of the parties to a marriage.

Judges:

Eastham J

Citations:

[1981] 1 WLR 391

Statutes:

Matrimonial Homes Act 1983 37(3)

Jurisdiction:

England and Wales

Cited by:

Not applied – Ansari v Ansari and others CA 19-Dec-2008
The wife had registered her right of occupation under the 1996 Act, but the husband sold the house subject to the registered right, and the purchaser had charged the property. She now sought an order restricting the use of the proceeds of sale, and . .
Lists of cited by and citing cases may be incomplete.

Family, Land

Updated: 18 May 2022; Ref: scu.279009

Mason v Mason: 1972

The court considered the mental capacity required of somebody to give their consent to a decree of divorce.

Citations:

[1972] Fam 302

Jurisdiction:

England and Wales

Cited by:

Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Lists of cited by and citing cases may be incomplete.

Family, Health

Updated: 17 May 2022; Ref: scu.259610

Elizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams dec): ChD 26 Jan 2001

The widow’s claim under the Act was contested by three daughters where the widow received a specific legacy and the will gave trustees a power to apply any part of the residue during the lifetime of the widow to provide and maintain a suitable residence. The court reduced the specific legacy and made an order transferring the matrimonial home to the widow absolutely, thereby awarding her approximately one half of the value of the estate. The marriage had been very long, and the assets held in the husband’s name.
Held: Whilst the amount the claimant would have received on a divorce was only one factor, it can be a most important one. Too great a concentration on deeds and resources blurs the distinction between sections 1(2)(a) and (b). Having noted that there were sufficient assets in the estate to have provided for both parties on a divorce and that on divorce the court would have been looking for a clean break and that the case did not involve inherited assets there was stated to be no apparent reason why the court should depart from an equal division of the assets. It was stated that whether the divorce court would have awarded the applicant the matrimonial home or whether it would have sought to achieve equal division by some different route would have depended upon the needs and wishes of the parties.

Judges:

John Behrens

Citations:

Unreported, 26 January 2001, (2001) WTLR 493

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975 1(2)(a) 1(2)(b)

Jurisdiction:

England and Wales

Citing:

Approved – Re Besterman, decd CA 1984
In the case of an application under the Act by a surviving spouse, maintenance is not the only, or even the dominant, consideration to be taken into account by the court. ‘In an application under section 25 of the Matrimonial Causes Act 1973 the . .
Cited – Stead v Stead 1985
The court declined to award a widow a large capital sum from her husband’s estate. . .
Cited – 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 by:

Cited – Moorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
Lists of cited by and citing cases may be incomplete.

Family, Wills and Probate

Updated: 16 May 2022; Ref: scu.213640

Preston v Preston: CA 1982

The court set out a series of principles applicable in ancillary relief cases where the resources exceeded the strict needs of the parties, including that the court should not make allowance for a spouse’s desire to be able to leave a sum to her children by her will, and ‘. . . the word ‘needs’ in section 25(1)(b) in relation to the other provisions in the subsection is equivalent to ‘reasonable requirements’, having regard to the other factors and the objective set by the concluding words of the subsection . . .’

Judges:

Ormrod LJ

Citations:

[1982] Fam 17

Statutes:

Matrimonial Causes Act 1973 25(1)(b)

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Mentioned – Miller 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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.197919

Haldane v Haldane: PC 1977

(New Zealand) The court considered how under the New Zealand legislation for ancillary rlief, the court was to deal with property inherited by one party to the marriage: ‘Initially a gift or bequest to one spouse only is likely to fall outside the Act, because the other spouse will have made no contribution to it. But as time goes on, and depending on the nature of the property in question, the other spouse may well have made a direct or indirect contribution to its retention.’

Judges:

Lord Simon of Glaisdale

Citations:

[1977] AC 673

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Family, Commonwealth

Updated: 16 May 2022; Ref: scu.197920

Roberton v Roberton: 1999

Citations:

1999 SLT 38

Statutes:

Matrimonial Homes (Family Protection) (Scotland) Act 1991 1

Jurisdiction:

England and Wales

Cited by:

Cited – Glasgow City Council v DH and Another IHCS 17-Jul-2003
Exclusion orders had been sought under the Act, but refused for non-compliance with procedures under the Act. New applications were made to different courts, and the applicant said it was not open to the Authorities to make the same application . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.184720

Hussain v Hussain: CA 1983

A marriage celebrated outside England under a system of law permitting polygamy is not to be regarded as polygamous for the purpose of s.11(d) (or presumably for other purposes) if neither spouse had capacity to enter into a second marriage, such capacity being determined by the law of the domicile of the spouse in question immediately before the first marriage.

Citations:

[1983] Fam. 26

Statutes:

Matrimonial Causes Act 1973 11

Cited by:

Cited – Bala and Others, Regina v CACD 10-May-2016
The court was asked whether parties to a polygamous marriage recognised in Nigeria could be exempt thereby from a charge as co-conspirators because of s2 of the 1977 Act. The judge had held the marriage invalid after finding that the defendant was . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.564471

Hyde v Hyde: 1860

Parties to a polygamous marriage are not entitled as between themselves to any matrimonial relief under English law.

Citations:

(1860) LR 1 P and D 130

Cited by:

Cited – Bala and Others, Regina v CACD 10-May-2016
The court was asked whether parties to a polygamous marriage recognised in Nigeria could be exempt thereby from a charge as co-conspirators because of s2 of the 1977 Act. The judge had held the marriage invalid after finding that the defendant was . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 May 2022; Ref: scu.564469

Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department: SC 22 Feb 2017

Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the Secretary of State by the 1998 Act to act compatibly with the right to respect for family life guaranteed by article 8 of the ECHR. In each case, the Secretary of State concluded that the appellant did not qualify for leave to remain under the applicable provisions of Appendix FM to the Immigration Rules and that, applying the Immigration Directorate Instructions, ‘Family Members Under the Immigration Rules, Section FM 1.0, Partner and ECHR Article 8 Guidance’ there were no exceptional circumstances warranting the grant of leave to remain outside the Rules.
Held: The appeals failed. The Rules and Instructions applied in these cases were consistent with the proper application of article 8.
In the first case, there was no evidence placed before the respondent that there were exceptional circumstances. Ms Agyarko’s claim could not be regarded as very strong or compelling.
As to Ms Ikuga, part of the decision was incorrectly based. However, looking at the decision taken, the result would have been the same, and she not having put forward anything which might constitute ‘exceptional circumstances’ as defined in the Instructions, that is unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.
The ground of challenge under Article 20 EU failed. If a situation were to arise in which the refusal of a third-country national’s application for leave to remain in the UK would force his or her British partner to leave the EU, in breach of article 20 TFEU, such a situation could be addressed under the Rules as one where there were ‘insurmountable obstacles’, or in any event under the Instructions as one where there were ‘exceptional circumstances’. Typically, however the British citizen would not be forced to leave the EU, any more than in the case of Dereci, and the third-country national would not, therefore, derive any rights from article 20 .

Judges:

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

Citations:

[2017] UKSC 11, [2017] WLR(D) 126, [2017] 3 CMLR 3, [2017] 1 WLR 823, [2017] Imm AR 764, [2017] INLR 548, UKSC 2015/0129

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Human Rights Act 1998, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Tuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Sezen v The Netherlands ECHR 31-Jan-2006
The case concerned ‘a functioning family unit where the parents and children are living together’. The court considered wehether a deportation would infringe the human rights of te applicant: ‘The Court has previously held that domestic measures . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – MF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Cited – Secretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
Cited – Alokpa and Moudoulou v Ministre Du Travail, De L’Emploi Et De L’Immigration ECJ 10-Oct-2013
ECJ Citizenship of the Union – Articles 20 TFEU and 21 TFEU – Directive 2004/38/EC – Right of residence of a third-country national who is a direct relative in the ascending line of Union citizens who are minor . .
Cited – Iida v Stadt Ulm ECJ 8-Nov-2012
ECJ Articles 20 TFEU and 21 TFEU – Charter of Fundamental Rights of the European Union – Article 51 – Directive 2003/109/EC – Third-country nationals – Right of residence in a Member State – Directive 2004/38/EC . .

Cited by:

Cited – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Cited – Rhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Updated: 16 May 2022; Ref: scu.575309

Ann Rycroft, The Wife Of Henry Rycroft, And Pamela Rycroft, An Infant, By Their Next Friend v William M Christy And Henry Rycroft: 15 Jun 1840

A feme covert made a disposition of property, as to which it was doubtful whether it;
was settled to her separate use, The husband disclaimed.
Held: That whether separate property or riot, the husband’s disclaimer gave effect to the disposition of
the wife.

Citations:

[1840] EngR 693, (1840) 3 Beav 238, (1840) 49 ER 93

Links:

Commonlii

Jurisdiction:

England and Wales

Family, Trusts

Updated: 15 May 2022; Ref: scu.310119

Sheffield and Horsham v The United Kingdom: ECHR 30 Jul 1998

It is within a nation’s margin of appreciation to refuse to re-register birth details of people who had undergone sex-changes. Similarly it was not a human rights infringement not to allow post operative trans-sexuals to marry. However the court was critical of the United Kingdom’s apparent failure to take any steps to keep this area of the law under review. There is, the court said, an increased social acceptance of trans-sexualism and an increased recognition of the problems which post-operative transsexual people encounter. The court reiterated that this area ‘needs to be kept under review by Contracting States’
Hudoc No violation of Art. 8; No violation of Art. 12; No violation of Art. 14+8; Not necessary to examine Art. 13

Citations:

Times 04-Sep-1998, 22985/93, 23390/94, (1998) 27 EHRR 163, [1998] ECHR 69

Links:

Worldlii

Statutes:

European Convention on Human Rights Art 8, 12

Jurisdiction:

Human Rights

Citing:

Cited – Cossey v The United Kingdom ECHR 27-Sep-1990
A male to female transsexual who had undergone full gender reassignment surgery wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary . .
Cited – Rees v The United Kingdom ECHR 17-Oct-1986
The applicant had been born and registered as a female, but later came to receive treatment and to live as a male. He complained that the respondent had failed to amend his birth certificate.
Held: The court accepted that, by failing to confer . .
Cited – Corbett 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:

Cited – Bellinger 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 . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Wilkinson 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.

Human Rights, Family, Administrative

Updated: 15 May 2022; Ref: scu.165644

Conran 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 do violence to language and to section 25(2), where contribution and needs are set out as different matters to which the court is required to have regard.

Judges:

Wilson J

Citations:

Times 14-Jul-1997, [1997] 2 FLR 615

Statutes:

Matrimonial Causes Act 1973 25

Citing:

Considered – 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 . .

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 15 May 2022; Ref: scu.79458

A v A (Maintenance Pending Suit: Provision for Legal Fees): FD 15 Nov 2000

An application for maintenance pending suit could properly be made, to include payment on account of the legal costs of pursuing the action. Such legal expense were of a recurring, and income type nature. Maintenance was not confined to the day to day living expenses of an applicant. In the absence of a statutory definition, there was neither any case law definition which would preclude such expenses. Without such an order, the impecunious wife would be unable to progress in the single issue which dominated her life.

Citations:

Times 15-Nov-2000, Gazette 16-Nov-2000, [2001] 1 FLR 377

Statutes:

Matrimonial Causes Act 1973 22

Cited by:

Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
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, Costs

Updated: 15 May 2022; Ref: scu.77586

Krenge v Krenge: 1999

The power in an English court to stay family proceedings here in favour of a foreign jurisdiction exists independently of any statute.

Citations:

[1999] 1 FLR 969

Cited by:

Cited – Moore v Moore CA 20-Apr-2007
The family were wealthy, and had lived for some time in Spain. On the breakdown of the marriage, the wife returned to the UK, and sought ancillary relief here, though the divorce had been in Spain. The husband argued that this should be dealt with . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 14 May 2022; Ref: scu.251425

Shackell v United Kingdom: ECHR 27 Apr 2000

The court held inadmissible a claim by an unmarried woman to widow’s benefit. The parties having chosen not to marry, they could not complain of not having the legal benefits of a marriage. The promotion of marriage by way of limited benefits for surviving spouses could not be said to exceed the margin of appreciation afforded to the Government: ‘The court accepts that there may well not be an increased social acceptance of stable personal relationships outside the traditional notion of marriage. However, marriage remains an institution which is widely accepted as conferring a particular status on those who enter it.’

Citations:

45851/99

Jurisdiction:

Human Rights

Cited by:

Cited – Wilkinson 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 . .
Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Benefits

Updated: 14 May 2022; Ref: scu.244727

G v G (Ouster: Ex parte Application): CA 1990

An ex parte order was made requiring a wife to vacate the family home immediately and was served on her when she was bringing two of the children of the family home from school.
Held: Lord Donaldson MR: there was no reason why the judge could not have made a non-molestation order in the widest terms which could have been served on the wife at the same time as the inter partes application for an ouster injunction. Butler-Sloss LJ did not consider that the affidavit evidence showed a situation sufficiently grave to come within ‘immediate danger of serious injury or irreparable damage’.

Judges:

Lord Donaldson MR, Butler-Sloss LJ

Citations:

[1990] Family Law 254

Jurisdiction:

England and Wales

Cited by:

Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 May 2022; Ref: scu.223661

G v G (Maintenance Pending Suit: Costs): FD 2003

The court considered the argument that a wife’s maintenance pending suit should be limited to her reasonable needs: ‘I do not accept that argument for the following reasons. The purpose of the 1970 Act was to change statutory provisions that were outdated and inadequate and to make a new start. Although the word ‘maintenance’ was used in both SS1 and 6 of 1970 Act (now SS22 and 27 of the MCA 1973) there are changes between section 6 of the 1970 Act (section 27 of the MCA 1973 and its predecessors and the word ‘maintenance’ is not used in the predecessors to section 1 of the 1970 Act (section 22 of the MCA 1973). The subsequent amendments to section 27 of the MCA 1973 confirm or clarify that ‘maintenance’ was not used by Parliament to refer to the old common law duty of a husband to maintain his wife. The report (read alone and together with the Working Paper) supports the conclusion that ‘maintenance’ was not used by Parliament to refer to the old common law duty of a husband to maintain his wife.

Judges:

Charles J

Citations:

(2003) 2 FCR 339

Statutes:

Matrimonial Causes Act 1973 25, Matrimonial Proceedings and Property Act 1970

Cited by:

Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 13 May 2022; Ref: scu.198587

Re A Debtor (No.488 IO of 1996), JP v A Debtor: ChD 1999

The debtor had been ordered to pay his wife a sum by way of ancillary relief in matrimonial proceedings. He then proposed an IVA, which was approved at a creditors meeting. W had notice but did not attend. She along with all other creditors was to receive a part payment in full and final settlement. She applied to revoke the approval.
Held: She succeeded. She wife had a right not enjoyed by other creditors namely the freedom to assert her claim following the husband’s bankruptcy notwithstanding the husband’s discharge which right would be overreached if she was compelled to accept a dividend under the IVA in full and final settlement of her entitlement. She had been unfairly prejudiced to the extent that her special position had not been recognised.

Judges:

Sir John Vinelott

Citations:

[1999] 2 BCLC 571

Statutes:

Insolvency Act 1986 262

Jurisdiction:

England and Wales

Cited by:

Applied – Child Maintenance and Enforcement Commission v Beesley and Another ChD 11-Mar-2010
The agency challenged the inclusion in an individual voluntary arrangement of the father’s arrears of child support. The creditors meeting had approved a full and final settlement. 94% of the debts were arrears of child support. The Commission said . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 11 May 2022; Ref: scu.402616

Gohil v Gohil: FD 25 Sep 2012

The parties had divorced and financial relief settled. W now applied to have the order set aside on the grounds of alleged serious material non-disclosure, fraud and misrepresentation by the husband. W had attended his later trial and obtained much information.
Held: One paragraph of the order was set aside setting aside the order that the order then made was final.

Judges:

Moylan J

Citations:

[2012] EWHC 2897 (Fam)

Jurisdiction:

England and Wales

Cited by:

See Also – Crown Prosecution Service and Another v Gohil CA 26-Nov-2012
The CPS had obtained evidence through letters of request. Mr and Mrs Gohil had previously divorced and reached a financial settlement. The evidence apparently disclosed further substantial assets which W said had not been disclosed in the settlement . .
Appeal from – Gohil v Gohil (No 2) CA 13-Mar-2014
The parties had agreed financial provision on their divorce, but W subsequently discovered what she said was material non-disclosure by H. The court was now asked whether a court of first instance had jurisdiction to set aside a final financial . .
At FD – Gohil v Gohil SC 14-Oct-2015
The Court was asked ‘Do the principles referable to the admissibility of fresh evidence on appeal, as propounded in the decision of the Court of Appeal in Ladd v Marshall [1954] 1 WLR 1489, have any relevance to the determination of a spouse’s . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 May 2022; Ref: scu.591293

J v J: FD 1955

Sachs J set out the disclosure required in ancillary relief cases: ‘In cases of this kind, where the duty of disclosure comes to lie upon the husband; where a husband has – and his wife has not – detailed knowledge of his complex affairs; where a husband is fully capable of explaining, and has the opportunity to explain, those affairs, and where he seeks to minimise the wife’s claim, that husband can hardly complain if when he leaves gaps in the court’s knowledge, the court does not draw inferences in his favour. On the contrary, when he leaves a gap in such a state that two alternative inferences may be drawn, the court will normally draw the less favourable inference – especially where it seems likely that his able legal advisers would have hastened to put forward affirmatively any facts, had they existed, establishing the more favourable alternative.’
. . And ‘ . . it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavits of documents or by evidence on oath (not least when that evidence is led by those representing the husband) the obligation of the husband is to be full, frank and clear in that disclosure’

Judges:

Sachs J

Citations:

[1955] 2 All ER 85, [1955] P 215, [1955] 2 WLR 973

Jurisdiction:

England and Wales

Cited by:

Cited – Robinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 09 May 2022; Ref: scu.591353

C v C: FD 2012

The court considered the application of the test of materiality when a party gave disclosure in family proceedings.

Citations:

[2012] EWHC 3788 (Fam)

Jurisdiction:

England and Wales

Cited by:

Cited – S 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 . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 09 May 2022; Ref: scu.591355

Gordon (formerly Stefanou) v Stefanou: CA 2010

H and W first separated in 1996, with W petitioning for divorce in 2003 for 5-years’ separation. In 1999 H began a company which proved very successful. An ancillary relief order was made in 2007 but W now sought to set that order aside for a further business transaction of H’s company in 2010.
Held: The aplication failed. There had been several years physical separation and it was in that period that H’s s business developed with no support or contribution from W. The separation coupled with H’s only subsequent success was determinative.

Citations:

[2011] 1 FLR 1582, [2010] EWCA Civ 1601

Jurisdiction:

England and Wales

Cited by:

Cited – S 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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 May 2022; Ref: scu.591354

In re K: FD 2005

Judges:

Munby J

Citations:

[2005] EWHC 2956, [2007] 1 FLR 399

Jurisdiction:

England and Wales

Cited by:

Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 08 May 2022; Ref: scu.424951

Passee v Passee: 1988

Citations:

[1988] 1 FLR 263

Jurisdiction:

England and Wales

Cited by:

Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 May 2022; Ref: scu.230912

Singer (formerly Sharegin) v Sharegin: 1984

In family proceedings, the starting point for the award of costs is that they prima facie follow the event but that presumption may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court.

Judges:

Cummin-Bruce LJ

Citations:

[1984] FLR 114

Jurisdiction:

England and Wales

Cited by:

Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 06 May 2022; Ref: scu.186067

Cornick v Cornick (No 3): FD 2001

The court considered its powers when being asked to vary a lump sum provision at the same time as a variation of maintenance.
Held: ‘section 31(7B) clearly introduces a wide discretionary power to be exercised by applying the words of the statute to make by way of supplemental provision (and thus to quantify and define) further lump sum orders, property adjustment orders and pension sharing orders if and when the court discharges or varies an order for periodical payments. Potentially this power could be exercised some considerable time after the original orders for financial provision, including a lump sum order and necessarily a periodical payments order, were made and the power means that an original lump sum order, or property adjustment order or pension sharing order although a once-and-for-all order cannot be regarded as the only order of that type that can ever be made if an order for periodical payments is also made and is continuing.’

Judges:

Charles J

Citations:

[2001] 2 FLR 1240

Statutes:

Matrimonial Proceedings Act 1973 31(b)

Jurisdiction:

England and Wales

Citing:

Cited – Harris v Harris CA 1-Jul-2001
The first instance court had acceded to the husband’s application for downward variation of the wife’s periodical payments to andpound;9,000 per annum and to the wife’s application substituting a lump sum of andpound;120,000 for the future . .
See also – Cornick v Cornick (No 2) CA 2-Jan-1995
The court considered the boundary of its power in ordering periodical payments: ‘I do not believe that Hale J erred in her approach in principle to this case, and I reject the submission which Mr Mostyn has made that there was a delimiting factor . .
See Also – Cornick v Cornick (No 1) FD 1994
. .

Cited by:

Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Appeal from – Miller 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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 06 May 2022; Ref: scu.186012

Francis Harmore and Elizabeth His Wife v Doble Brook, Birkenhead Collins, John Hamlin, Tho Hamlin An Infant, By The Said John His Guardian, And George Banister: 1674

Articles in Marriage to pay 500 pounds with his Daughter by such a ime, and to secure to her all his real and Personal estate when he died; and afterwards he devised all his personal Estate to another, which being contrary to the Articles, that Agreement was deemed to be performed.

Citations:

[1674] EngR 26, (1674) Fin H 183, (1674) 23 ER 101 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Family, Trusts

Updated: 06 May 2022; Ref: scu.406025

In re R (Parental responsibility: IVF baby): CA 19 Feb 2003

The mother and father of the child were not married, but had consented to the terms of their infertility treatment. The father donated his sperm, but the mother was only inseminated after they had separated. The mother appealed a declaration of paternity.
Held: The Act clearly provided that the embryo was created at the time the fertilised embryo was placed in the womb. The time at issue under the Act was whether the act was ‘in the course of treatment services provided for her and a man together’. In this case, at that time, the father and mother were not together, and the biological father was not to be treated as the legal father.

Judges:

Sir Andrew Morritt VC, Hale, Dyson LJJ

Citations:

[2003] EWCA Civ 182, Gazette 03-Apr-2003, [2003] 2 All ER 131, [2003] Fam 129

Statutes:

Human Fertilisation and Embryology Act 1990 28(3), Children Act 1989 4(1)(a) 10(4)

Jurisdiction:

England and Wales

Citing:

Cited – U v W (Attorney-General Intervening) FD 4-Mar-1997
The restriction on the freedom to provide human fertility treatment to licensees of the Authority was not a breach of the EU treaty. There is a particular need for certainty in provisions affecting the status of a child. There is a mental element . .
Appeal from – B and D v R FD 22-Feb-2002
The parties were unmarried but entered into IVF treatment together. They separated, but the mother continued with treatment, not telling the IVF center of the breakdown of the first relationship, and nor of her new relationship until after the . .

Cited by:

Cited – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Appeal from – In Re R (Parental responsibility: IVF baby); D (A Child), Re HL 12-May-2005
The parents had received IVF treatment together, but had separated before the child was born. The mother resisted an application by the father for a declaration of paternity.
Held: The father’s appeal failed. The Act made statutory provision . .
Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 05 May 2022; Ref: scu.179542

Gurasz v Gurasz: CA 1970

Lord Denning MR described ‘the husband’s duty to provide his wife with a roof over her head’ as ‘elemental in our society’

Judges:

Lord Denning MR

Citations:

[1970] P 11

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 04 May 2022; Ref: scu.581126

Dodd v Dodd: 1906

Sir Gorell Barnes P set out the task of a judge saying that it is our task is jus dicere non jus dare – to state the law, not to make the law, but decried the state of family law: ‘That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted. The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects.’
‘The order does not state upon its face the finding of fact upon which the order was made – in other words, it does not state on the face of it that the respondent had been guilty of wilful neglect to provide reasonable maintenance for the petitioner and her child, and that by such neglect he had caused her to leave and live separately and apart from him. It might be said that I could therefore ignore the order and treat it as if it had never been applied for and made, on the general principle that a Magistrate’s order ought to state the finding of fact essential to the exercise of the jurisdiction: see the observations in the case of Brown v. Brown (1898, 62 JP 711); but it is necessary to observe, first, that this point is highly technical, and, on an appeal to this Division, the defect could have been corrected, that the petitioner acted upon the order and endeavoured to enforce it, and that it was undoubtedly treated by both parties as being an effective order, and further, that in the case of Brown v. Brown the effect of the provisions of the Summary Jurisdiction Acts and of the forms which are provided for use under those Acts was not fully considered. According to s. 8 of the Act of 1895 all applications under it are to be made in accordance with the Summary Jurisdiction Acts, and, without going through the details of those Acts as they at present stand, it is sufficient to observe that the Summary Jurisdiction Rules J 886, r. 31, provided that the forms in the schedule thereto, or forms to the like effect, might be used with such variations as circumstances might require; and the forms of orders in that schedule omit to state whether the complaint is found and adjudged to be true: so that although in strictness the order ought to state the findings of fact essential to jurisdiction, having regard to the provisions of the Act and Rules to which I have just referred, I am not prepared to hold, without further argument, that this order ought to be treated as bad on the face of it. I might point out, however, that it is desirable that the practice adopted, I believe, by the Magistrates in London of stating that the cause of complaint is found to be true is desirable in order to avoid any such difficulty as arises in the present case upon this point . . ‘

Judges:

Sir Gorell Barnes P

Citations:

[1906] P 189

Jurisdiction:

England and Wales

Cited by:

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: . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Family

Updated: 04 May 2022; Ref: scu.581124

Welfare v Welfare: FD 12 Oct 1977

Bush J heard a defended divorce petion sand said: ‘Conduct of a respondent could not be looked at in isolation but had to be viewed in the light of all the surrounding circumstances, including the degree of provocation.’ He continued to adopt the words from Rayden on Divorce: ‘In all these cases the totality of the evidence of the matrimonial history must be considered, and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view, after a consideration of any excuse or explanation which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called upon to endure it.”

Judges:

Bush J

Citations:

Times 12-Oct-1977

Jurisdiction:

England and Wales

Cited by:

Cited – O’Neill v O’Neill CA 12-Mar-1975
W appealed from rejection of her petition for divorce. The Judge held that the behaviour proved was no more than a wife could reasonably be expected to put up with, and he dismissed the petition. . .
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: . .
Adopted – Stevens v Stevens FD 1979
Sheldon J considered whether the divorce petitioner had established that she should not be expected to continue to live with her husband. An earlier behaviour petition by her had been rejected as making insufficient allegations against H.
Lists of cited by and citing cases may be incomplete.

Family

Updated: 04 May 2022; Ref: scu.581085

Regina v Registrar General, Ex parte Segerdal: QBD 1969

The Church of Scientology challenged the refusal of the Registrar General to register its chapel at East Grinstead as a place of meeting for religious worship.
Held: The challenge failed.

Judges:

Lord Parker CJ, Ashworth and Cantley JJ

Citations:

[1970] 1 QB 430

Statutes:

Places of Worship Registration Act 1855 2

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Registrar General, Ex parte Segerdal CA 1970
The Church of Scientology chapel at East Grinstead, Sussex was not a ‘place of meeting for religious worship’ within the meaning of section 2 of the 1855 Act since that would require reverence to a deity. The Church of Scientology’s services did not . .
Cited – Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Cited – Hodkin and Another, Regina (on The Application of) v Registrar General of Births, Deaths and Marriages Admn 19-Dec-2012
The claimants, both scientologists, wanted to be married as the London Church Chapel. The respondent had declined to register it as a place of worship under the 1855 Act.
Held: The claim failed. Scientology is a religion. Counsel for the . .
Lists of cited by and citing cases may be incomplete.

Family, Administrative, Ecclesiastical

Updated: 04 May 2022; Ref: scu.540526

Regina v Registrar General, Ex parte Segerdal: CA 1970

The Church of Scientology chapel at East Grinstead, Sussex was not a ‘place of meeting for religious worship’ within the meaning of section 2 of the 1855 Act since that would require reverence to a deity. The Church of Scientology’s services did not meet that test, and a valid ceremony of marriage could not be conducted there. The question of whether the services performed in the chapel are properly to be regarded as a form of religious worship is inevitably conditioned by whether Scientology is to be regarded as a religion.
Lord Denning asked whether the chapel was a place of meeting for religious worship within the meaning of the Act, saying: ‘We have had much discussion on the meaning of the word ‘religion’ and of the word ‘worship’, taken separately, but I think we should take the combined phrase, ‘place of meeting for religious worship’ as used in the statute of 1855. It connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity. There may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship. But, apart from exceptional cases of that kind, it seems to me the governing idea behind the words ‘place of meeting for religious worship’ is that it should be a place for the worship of God. I am sure that would be the meaning attached by those who framed this legislation of 1855.’
As to how that might apply to the Church of Scientology: ‘Turning to the creed of the Church of Scientology, I must say that it seems to me to be more a philosophy of the existence of man or of life, rather than a religion. Religious worship means reverence or veneration of God or of a Supreme Being. I do not find any such reverence or veneration in the creed of this church . . When I look through the ceremonies and the affidavits, I am left with the feeling that there is nothing in it of reverence for God or a deity, but simply instruction in a philosophy. There may be belief in a spirit of man, but there is no belief in a spirit of God.’
Winn LJ said that he did not feel well qualified to discuss whether Scientology could properly be called a religion, but the evidence did not show to his mind that its adherents observed any form of worship. He explained what he meant by worship: ‘by no ‘worship’, if I am bound to define my terms, I mean to indicate that they do not humble themselves in reverence and recognition of the dominant power and control of any entity or being outside their own body and life.’
Buckley LJ said: ‘Worship I take to be something which must have some at least of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession.’

Judges:

Lord Denning MR, Winn and Buckley LJJ

Citations:

[1970] 2 QB 697

Statutes:

Places of Worship Registration Act 1855 2

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Registrar General, Ex parte Segerdal QBD 1969
The Church of Scientology challenged the refusal of the Registrar General to register its chapel at East Grinstead as a place of meeting for religious worship.
Held: The challenge failed. . .

Cited by:

Overruled – Hodkin and Another, Regina (on The Application of) v Registrar-General of Births, Deaths and Marriages SC 11-Dec-2013
The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .
Cited – Hodkin and Another, Regina (on The Application of) v Registrar General of Births, Deaths and Marriages Admn 19-Dec-2012
The claimants, both scientologists, wanted to be married as the London Church Chapel. The respondent had declined to register it as a place of worship under the 1855 Act.
Held: The claim failed. Scientology is a religion. Counsel for the . .
Lists of cited by and citing cases may be incomplete.

Family, Administrative, Ecclesiastical

Updated: 04 May 2022; Ref: scu.540525

CASE II 4 H 3, Dower, Fitz 179 Stamf Praer Ch 12: 1220

An English woman residing in France at the time of war between the two nations shall not have her dower in England of her English husband’s land until the countries are common, that is, until there be peace between them ; for she is under the power of the King of France ; and if she should have her dower while she resides there, it, would tend to weaken the King of England. After peace between them, she shall have her dower.

Citations:

[1220] EngR 492, (1220-1623) Jenk 3, (1220) 145 ER 3

Links:

Commonlii

Jurisdiction:

England and Wales

Family

Updated: 04 May 2022; Ref: scu.461404

Forbes-Smith v Forbes-Smith and Chadwick: CA 1901

W petitioned for judicial separation. H cross-petitioned for divorce, citing C as co-respondent. The actions were consolidated, W’s petition withdrawn, and a decree absolute of divorce granted to H. A costs order was made against C. On taxation, H asked for his costs of defending W’s original suit.
Held: The consolidation of the suits was not properly so called, and H was not entitled against C to his costs of defending W’s original suit to which C was not a party. The court had no jurisdiction to make such an order, since he had not been a ‘party to the proceedings’ as required under the 1857 Act.

Citations:

[1901] P 258, [1901] LJP 61, [1901] LT 789, [1901] 50 WR 6, [1901] 17 TLR 587, [1901] 45 Sol Jo 595

Statutes:

Judicature Act 1890 5, Matrimonial Causes Act 1857 34

Jurisdiction:

England and Wales

Cited by:

Overruled – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Earl v Earland Kyle; Earl v Earl 1926
There had been cross-petitions between H and W, and they had been consolidated by court order.
Held: The court had no jurisdiction to order the co-respondent to pay the costs of the wife’s suit since she was not a party to that petition . .
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.

Costs, Family

Updated: 04 May 2022; Ref: scu.193432

Brook v Brook: 17 Apr 1858

The law of the country in which a marriage is solemnised cannot give validity to a marriage prohibited by the laws of the country of the domicile and allegiance of the contracting parties.
Therefore, a marriage celebrated during a temporary residence in Denmark between an English widower and the sister of his deceased wife, being null and void by the stat. 5 and 6 Wtn. 4, is not valid, although by the law of Denmark marriages are permitted between persons so related by affinity.
The principle of lex loci contractus examined as to various qualifications and exceptions,

Citations:

[1858] EngR 545, (1857-1858) 3 Sm and G 481, (1858) 65 ER 746

Links:

Commonlii

Jurisdiction:

England and Wales

Family, International

Updated: 02 May 2022; Ref: scu.289016

Campbell v Campbell: 22 Apr 1857

Consistory Court of London – Practice–Condonation–Delay –As a general rule, the Court will always accede to an application to examine witnesses viva voce; and where such application is intended for the whole cause, the pleadings must be concluded before any of the witnesses are examined. Condonation, or the renewal of conjugal intercourse, requires strict proof. In matrimonial causes there are few reasons for delay.

Citations:

[1857] EngR 421, (1857) Dea and Sw 285, (1857) 164 ER 578

Links:

Commonlii

Jurisdiction:

England and Wales

Ecclesiastical, Family

Updated: 02 May 2022; Ref: scu.290167

B v B (Matrimonial Proceedings: Discovery): CA 1978

The wife applied for ancillary relief, and sought disclosure from a third party.
Held: Whilst a party must disclose all documents in his possession, custody or power the court has a discretion whether to order inspection. ‘Custody’ in RSC Ord 24 was held ‘to refer to documents which are in the physical holding of a party but not in his personal capacity, rather qua company director/agent or similarly’.
Dunn LJ said: ‘It is another feature of such proceedings that one party, usually the wife, is in a situation quite different from that of ordinary litigants. In general terms, she may know more than anyone else about the husband’s financial position . . She may . . know, from conversations with the husband in the privacy of the matrimonial home, the general sources of his wealth and how he is able to maintain the standard of living that he does. But she is unlikely to know the details of such sources or precise figures, and it is for this reason that discovery now plays such an important part in financial proceedings in the Family Division.
Applications for such discovery cannot be described as ‘fishing’ for information, as they might be in other divisions. The wife is entitled to go ‘fishing’ in the Family Division within the limits of the law and practice.’

Judges:

Dunn LJ

Citations:

[1978] Fam 181, [1978] 3 WLR 624

Jurisdiction:

England and Wales

Cited by:

Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Cited – Mubarak v Mubarik 2003
The court was asked as to whether the expression ‘in the possession of’ in RSC Ord.48 extended to documents not physically held by the judgment debtor but to sight of which he has a clear and enforceable right.
Held: The expression did so . .
Cited – Marketmaker Technology (Beijing) Co Ltd and Others v CMC Group Plc and Others QBD 24-Jun-2009
The claimants sought the committal of the fourth defendant for contempt having broken his undertaking to the court to provide details of his means.
Held: The terms of the undertaking were not ambiguous and could not be read in the way . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 01 May 2022; Ref: scu.236599

Presidents Practice Direction (Applications for Reporting Restriction Orders): 2005

Citations:

[2005] 2 FLR 120

Jurisdiction:

England and Wales

Cited by:

Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Lists of cited by and citing cases may be incomplete.

Family, Media, Litigation Practice

Updated: 30 April 2022; Ref: scu.231163

Griffiths v Griffiths: CA 1964

The test for whether there had been constructive desertion was: ‘Was the husband guilty of such grave and weighty misconduct that he must have known that his wife, if she acted like any reasonable woman in her position, would in all probability withdraw permanently from cohabitation?’
Roskill LJ said: ‘The parties having chosen to fight the case in this way, the judge was obviously bound to find, as he did find with the utmost care, where he thought the truth lay on every one of those allegations which had been launched before him by way of charge and countercharge over so long a period.’

Judges:

Roskill LJ

Citations:

[1964] 1 WLR 1483

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for Work and Pensions v W CA 18-May-2005
The claimant had been married with children. Her husband was accused of abuse of the children, and bailed to live away from home, and then convicted and imprisoned. The claimant applied for income support on the basis that she had been abandoned . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 30 April 2022; Ref: scu.226122

Nylund v Finland: ECHR 29 Jun 1999

Sometimes the relationship between a child’s unmarried parents will be so exiguous that there will be no ipso jure family life as between the natural father and his child. But family life may nonetheless be shown to exist: ‘the Court considers that Article 8 cannot be interpreted as only protecting ‘family life’ which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth.’ In this case, the father’s claim to family life failed.

Citations:

Unreported – 29 June 1999

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Human Rights, Family

Updated: 30 April 2022; Ref: scu.200326

Luong v Loung (Phoung): CA 15 Apr 1997

The husband appealed refusal of a decree of divorce. The judge found that the wife’s behaviour was insufficient to found a decree.
Held: The judge had applied the correct test. At issue here was really the wish of the huband to introduce another woman into his marriage. Any behaviour by the wife was not such as to found a proposition that the husband could not be expected to live with her.

Citations:

[1997] EWCA Civ 1403

Jurisdiction:

England and Wales

Citing:

Cited – O’Neill v O’Neill CA 1975
The court considered the level of unreasonable behaviour necessary to found a decree of divorce.
Cairns LJ said: ‘The right test is, in my opinion, accurately stated in Rayden on Divorce . . ‘The words ‘reasonably be expected’ prima facie . .
Cited – Buffery v Buffery CA 30-Nov-1987
The court considered a petition for divorce beased upon unreasonable behaviour. The Wife petitioner appealed from the decision dismissing her petition for the dissolution of her marriage to the respondent.
Held: After discussing O’Neill: ‘one . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 28 April 2022; Ref: scu.141799

Butterworth v Butterworth: CA 7 Feb 1997

Brooke LJ, with whom Balcombe LJJ agreed, treated the test for whether behaviour was so unreasonable as to support a petition for divorce as being that laid down by Dunn J in Livingstone-Stallard.

Judges:

Brooke, Balcombe LJJ

Citations:

[1997] EWCA Civ 961, [1997] 2 FLR 336

Jurisdiction:

England and Wales

Citing:

Approved – Livingstone-Stallard v Livingstone-Stallard FD 1974
Section 1(2)(b) is expressed in very simple language, and ‘is . . quite easy for a layman to understand’. The court considered the necessary test for whether unreasonable behaviour had reached a point such as to allow a decree of divorce.
Dunn . .

Cited by:

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: . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 28 April 2022; Ref: scu.141357

R v A: FC 4 Sep 2018

matrimonial proceedings in which the wife is seeking a financial remedies order against her former husband after a marriage of 25 years during which three children, all now in their late teens or early 20s, were born. During the marriage, the family enjoyed a luxurious lifestyle as a result of the husband’s successful property development business. But latterly his business has run into difficulties and he alleges that he now has liabilities which significantly exceed the family’s assets. The central issue in the case is whether the husband, and his business associates who gave evidence at the hearing before me, have fabricated or exaggerated those liabilities in an attempt to defeat the wife’s claim.

Judges:

Baker J

Citations:

[2018] EWFC 59

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 27 April 2022; Ref: scu.621632

A v B (No 2): FC 14 Jun 2018

The court was asked whether it is fair in all the circumstances for the court to make an order on a claim by a former husband for a financial remedies order against his former wife under the Matrimonial Causes Act 1973 and, if so, the form and content of the award to be made in the exercise of the court’s discretion. The circumstances include the striking fact that the parties were divorced in 1992 and the applicant did not file his application for financial remedies in Form A until February 2016.

Judges:

Baker J

Citations:

[2018] EWFC 45

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 25 April 2022; Ref: scu.620187

Re Venables: FD 3 May 2018

Orders had been made for the protection of the identity of two men who committed a notorious murder as a child. Members of the child’s family now sought variation of the order as regards this respondent. It was said that the order had been intended to protect him as a child in the hope that he would be allowed rehabilitation. They now said that this had failed,
Held: Orders were now made for further evidence and draft orders to be filed.

Judges:

Sir James Munby P FD

Citations:

[2018] EWHC 1037 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 24 April 2022; Ref: scu.618409