Tag: Family

Villiers v Villiers: CA 17 May 2018

H’s appeal from interim maintenance and legal fees allowance order. He denied that the Court had jurisdiction.

Judges:

King, David Richards, Moylan LJJ

Citations:

[2018] EWCA Civ 1120, [2018] WLR(D) 303

Links:

Bailii, WLRD

Statutes:

Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, Council Regulation (EC) No 4/2009

Jurisdiction:

England and Wales

Family, Jurisdiction

Updated: 22 April 2022; Ref: scu.616340

RP v RP: FD 8 Dec 2006

Following a total period of co-habitation lasting fourteen years, ten of them as husband and wife, the wife seeks by this application financial provision for herself and twins aged nine.

Judges:

Coleridge J

Citations:

[2006] EWHC 3409 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 20 April 2022; Ref: scu.251594

Molk v Molk: ECJ 2 May 2018

Area of Freedom, Security and Justice – Opinion – Reference for a preliminary ruling – Judicial cooperation in civil matters – Hague Protocol on the law applicable to maintenance obligations – Food – Situation in which the maintenance creditor and debtor live in different Member States – Request by the debtor to reduce the amount of the pension – Determination of the applicable law

Citations:

ECLI : EU: C: 2018: 297, [2018] EUECJ C-214/17 – O

Links:

Bailii

Jurisdiction:

European

Family

Updated: 14 April 2022; Ref: scu.609516

Alder Hey Children’s NHS Foundation Trust v Evans and Another: FD 24 Apr 2018

The child was in a very severe state of health. The doctors at the hospital proposed withdrawal of life support which would lead to is death. The parents opposed this. A certificate the grant of Italian nationality was produced and the family requested that he be moved to Italy for treatment.
Held: The child had no connection with Italy, and though the nationality was valid, it did not operate to oust the UK court’s responsibility and jurisdiction. The request was refused.

Judges:

Hayden J

Citations:

[2018] EWHC 953 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Alder Hey Children’s NHS Foundation Trust v Evans and Others FD 11-Apr-2018
Care Plan for dying child approved
The parents of a baby boy sought to re-open an order that because of the very severe health condition, and very limited hope of any recovery (disputed by the parents), care beyond palliative care should be withdrawn with the effect that he would be . .
See Also – Alder Hey Children’s NHS Foundation Trust v Evans and Another FD 20-Feb-2018
Application made on behalf of the Alder Hey Children’s NHS Foundation Trust seeking a declaration that continued ventilatory support is not in A’s best interests and in the circumstances it is not lawful that such treatment continue. . .
At CA – Evans and Another v Alder Hey Children’s NHS Foundation Trust and Another CA 16-Apr-2018
Parents’ appeal from directions as to withdrawal of life supporting treatment for their child, the parents now applying for habeas corpus. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 April 2022; Ref: scu.609106

KA v MA (Prenuptial Agreement: Needs): FD 13 Mar 2018

Application by ‘the wife for financial remedy orders following the breakdown of her marriage made shortly after the commencement of divorce proceedings. It provoked, by way of response, a separate application by the husband in a notice to show cause why an order should not be made within the financial remedy proceedings reflecting the terms of an agreement concluded by the parties some three weeks before the celebration of their marriage in December 2008. That prenuptial agreement is relied upon by the husband as an effective and binding legal arrangement which the court should now approve as a final resolution of any and all financial claims which remain extant in the context of the dissolution parties’ marriage.

Judges:

Roberts J

Citations:

[2018] EWHC 499 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 13 April 2022; Ref: scu.609099

Waggott v Waggott: CA 11 Apr 2018

The court considered issues about the application of, and the relationship between, the principles of need, sharing and compensation in the determination of financial claims under the 1973 Act, specifically: (i) Is an earning capacity capable of being a matrimonial asset to which the sharing principle applies and in the product of which, as a result, an applicant spouse has a continuing entitlement to share? And (ii) How should the court assess whether an award determined by application of the sharing principle meets the party’s needs? More specifically to the arguments advanced in this case, to what extent is it fair for the wife to be required to use her sharing award to meet her income needs when the husband will meet his needs from earned income?

Judges:

Sir James Munby PFD, Moylan LJ, MacDonald J

Citations:

[2018] EWCA Civ 727

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Family

Updated: 13 April 2022; Ref: scu.608729

Wachtel v Wachtel: FD 3 Oct 1972

Mr. Justice Ormrod ordered the husband to pay to his wife (i) a lump sum of pounds 10,000, or half the value of the former matrimonial home in Norwood, South London, whichever be the less: (ii) a periodical payment of pounds 1,500 per annum, less tax: and (iii) a further payment of pounds 500 per annum, less tax, in respect of the eleven-year-old daughter.
Ormrod J said that conduct was to affect the division of property only when it was ”both obvious and gross”.

Judges:

Ormrod J

Citations:

[1973] Fam 72

Statutes:

Matrimonial Proceedings and Property Act, 1970

Jurisdiction:

England and Wales

Cited by:

Appeal from – Wachtel v Wachtel CA 8-Feb-1973
The court described the 1969 and 1970 Acts as ‘a reforming statute designed to facilitate the granting of ancillary relief in cases where marriages have been dissolved . . We regard the provisions of sections 2,3, 4 and 5 of the Act of 1970 as . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 April 2022; Ref: scu.599753

R v R (Divorce: Stay Of Proceedings): FD 1994

The wife had filed a petition for divorce on 22 April 1993 but did not reveal and serve it until after the husband had filed a petition in Sweden on 9 June 1993. She now sought an order staying the proceedings in Sweden.
Held: The stay was refused.
Ewbank J stated: ‘I have to say that a divorce petition does not stand in the same position as a writ in a civil action; a divorce petition is dealing with the status of parties and is subject to the rules set out in the Matrimonial Causes Rules 1977; it ought not to state that a marriage has broken down irretrievably if that is not the instructions of the client; and it ought to be served as soon as practicable after filing. It is not appropriate in the Family Division for petitions to be filed and held in secret and not served until it suits the petitioner.’

Judges:

Ewbank J

Citations:

[1994] 2 FLR 1036

Jurisdiction:

England and Wales

Cited by:

Cited – Thum 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 . .
Cited – Thum 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

Updated: 12 April 2022; Ref: scu.570775

Edward Draycott v Draycott Talbot, And Others: PC 28 Jan 1718

The entry of the name and titles of persons in a church book, either for marriages or births, cannot be positive evidence of the marriage or birth of any person ; unless the identity of the person named in such entries is fully proved, and strengthened also with circumstances of co-habitation, or the allowance of parties.

Citations:

[1718] EngR 68, (1718) 3 Bro PC 564, (1718) 1 ER 1501

Links:

Commonlii

Jurisdiction:

England and Wales

Evidence, Family

Updated: 12 April 2022; Ref: scu.390552

Dacosta v Villa Real: 1795

Which was an action upon a contract of marriage per verba de futuro, brought by the gentleman against the lady, who pleaded non assumpsit. When the plaititiff had opened his case, the defendant offered in evidence a sentence of the Spiritual Court in a cause of contract, where the Judge had pronounced against the suit for a solemnization in the face of the church, and declared Mrs. Villa Real free from all contract. And the Chief Justice held this to be proper and conclusive evidence on non assumpsit ; that it waa a cause within their jurisdiction, though the contract was per verba de futuro, and though the suit there is diverso intuitu, being for a specific performance, as far as admonition will go, and this for damages. Yet contract or no contract is the point in issue in both. And the plaintiff was nonsuit.

Citations:

[1795] EngR 970, (1795) 2 Str 961, (1795) 93 ER 968 (D)

Links:

Commonlii

Jurisdiction:

England and Wales

Family

Updated: 12 April 2022; Ref: scu.353315

In Re CH (family proceedings: court bundles): FD 2000

Judges:

Wall J

Citations:

[2000] 2 FCR 193

Jurisdiction:

England and Wales

Cited by:

Cited – X and Y, Re Bundles FD 22-Aug-2008
The court considered the continuing failure of parties to follow the requirements as to preparation of court bundles, and particularly in urgent applications: ‘This continuing failure by the professions to comply with their obligations is simply . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 12 April 2022; Ref: scu.272842

Practice Direction (Family Proceedings: Committal): 2001

Citations:

[2001] 1 WLR 1253

Jurisdiction:

England and Wales

Cited by:

Cited – In re G (a Child) (Contempt: Committal) CA 10-Apr-2003
The appellant had been made subject to a suspended committal to prison. He was involved with children proceedings, and had published details on the Internet which would make the social worker traceable.
Held: Where a contempt was not committed . .
Cited – Hammerton v Hammerton CA 23-Mar-2007
The husband appealed against his committal for contempt of a court order in family proceedings. The court had heard the wife’s application for his committal at the same time as his application for contact with the children.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Family, Human Rights, Contempt of Court

Updated: 12 April 2022; Ref: scu.250481

Practice Direction: (Family Proceedings: Ancillary Relief Procedure): FD 4 Jul 2000

The court gave directions as to the extension of the new ancillary relief procedures to all family courts, and clarified the duties of parties taking part in dispute resolution appointments, to make real attempts to reach settlements, and to acknowledge that no part of such procedure would later be admissible. The court also emphasised the need to comply with the pre-application protocols.

Citations:

Times 04-Jul-2000

Family

Updated: 09 April 2022; Ref: scu.84943

Practice Direction (Family Proceedings Costs): FD 24 Oct 2000

New and future practice directions as to costs under the Civil Procedure Rules should be applied as appropriate to family proceedings and proceedings in the Family Division. The significant difference remained as to systems of funding, and it remains the case that enforceable conditional fee arrangements will not apply in family cases.

Citations:

Times 24-Oct-2000

Family, Costs

Updated: 09 April 2022; Ref: scu.84884

Practice Direction (Family Proceedings: Case Management): FD 31 Jan 1995

The President of the Family Division handed down a Practice Direction on the need to avoiding delay and waste of costs in family proceedings. The courts would be free to take greater control of cases. A party who fails to conduct a matter economically could be subject to a wasted costs order. The court would exercise more readily the powers to limit pleadings, discovery, the length of submissions and cross examinations and otherwise. Unless directed a party’s written statement should stand instead of oral evidence, and oral evidence should be restricted to material matters of fact, save for experts. Parties had a duty to the court to give full and frank disclosure in ancillary relief and children matters. The court set down standards for bundles to be used save in the simplest cases, including their supply to the court. Cases expected to last five days or more should have pre-trial reviews at which the intended advocates and judge should attend. Parties should supply to the court a list of the central documents in cases where there was no core bundle. The direction applied in the Family Division and was intended to mirror similar directions in other divisions.

Judges:

Sir Stephen Brown P

Citations:

Times 08-Feb-1995

Family, Legal Professions

Updated: 09 April 2022; Ref: scu.84885

Practice Direction (Arresting Officer: Attendance): FD 19 Jan 2000

The direction deals with the circumstances in which the officer who makes an arrest in family proceedings for the breach of a non-molestation or similar order should be asked to attend court personally on the hearing regarding that breach. Unless the circumstances of the arrest itself appeared to be an issue, or unless the officer could give evidence as a witness to the circumstances leading up to the arrest, the officer need not normally be called.

Citations:

Times 19-Jan-2000, Gazette 03-Feb-2000

Statutes:

Family Law Act 1996 47(7)

Family, Contempt of Court

Updated: 09 April 2022; Ref: scu.84844

Mubarak v Mubarak: FD 30 Nov 2000

In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful to ensure that there were no third parties whose position could be prejudiced by the making of such an order. The power to lift the corporate veil is less clear in the Family Division. Here, however, there were genuine third party rights, including the commercial creditors and directors with fiduciary duties, who opposed the ceasing of the company’s trade. ‘[C]ompany law is predominantly concerned with parties at arm’s length in a contractual or similar relationship’ but family law is ‘concerned with the distributive power of the court as between husband and wife applying discretionary consideration to what will often be a mainly, if not entirely, family situation.’ and ‘it is quite certain that company law does not recognise any exception to the separate entity principle based simply on a spouse’s having sole ownership and control.’
Bodey made several comments about the situation: ‘Looking at the totality of the husband’s presentation, it was, in my view, sufficient to amount to a concession that he was to be treated for the purpose of the proceedings as the ultimate owner, not only of the company shares but also of the assets belonging to the companies. However, that concession cannot, in my view, be binding on the companies: he was not a director of DIL at the material time and did not, on the evidence, have the authority to bind either Board of Directors in saying that company assets could be seised and used for the satisfaction of his personal liabilities towards the wife.’ and
‘The fact that the husband purported and appeared to be able during the various ‘stay’ hearings to use and control company assets as if his own and the fact that the directors may in practice not have objected to that course whilst a stay was in place or in the offing, does not prove that in the last analysis he was able to establish and enforce against the companies the right in law to do so.
So although the earlier findings based on the husband’s concession that he was the owner of the companies are res judicata against him, they are not binding on the companies.’ and
‘Mr Aiyer has been described on behalf of the wife as a mere cipher of the husband, the implication being that he is masterminding the companies’ intervention and opposition to the seizure of its jewellery simply to assist the husband in avoiding his proper obligations to the wife. However, having seen Mr Aiyer, albeit briefly (and whilst I do not doubt he has discussed with the husband the tactical advantages of the companies fighting to retain the stock and that he is acting in line with the husband’s wishes) I conclude that, nonetheless, he is also genuinely concerned with his duty as a director to safeguard company assets.
I did not get the impression from him that the board’s resistance to the order is driven purely by instructions from the husband, nor purely by the board’s wish to help the husband in resisting payment of the lump sum order.’
Bodey J concluded: ‘At the end of the day, both companies are bona fide trading companies incorporated well before the matrimonial difficulties of the husband and wife. DIL is indeed incorporated outside this jurisdiction and the husband is not a director. It is not suggested that they are as such being used as a sham or device, albeit that their existence is very convenient to the husband. In my judgment, there do exist genuine third party rights and interests which ought to be respected, namely the interests of bona fide commercial creditors (one of them secured on the jewellery) and the position of directors who have fiduciary duties and who oppose the seizure of stock in trade. The facts of this case are far away from those of Green v Green [1993] 1 FLR 326 which Mr Pointer asks me to follow.
Applying the above proposed approach as regards lifting the corporate veil to the evidence now before me and having heard full legal argument, I come to the conclusion that this case does not fall within the necessarily circumscribed circumstances in which lifting the veil would be acceptable. However much the court may wish to assist a wife and children where a lump sum has not been paid, I am satisfied that doing so here, whensoever it may be permissible, would be a step too far in all the circumstances.’

Judges:

Bodey J

Citations:

Times 30-Nov-2000, [2001] 1 FCR 193, [2001] 1 FLR 673

Cited by:

Cited – Corbett v Corbett CA 28-Feb-2003
After an order had been made for periodical payments to the wife, the former husband entered into a new relationship, but began to get in financial difficulties, and arrears. Over the course of time, he did not make effective disclosure of his . .
Cited – Ellis v Ellis CA 24-Jun-2005
The defendant appealed a suspended committal order in respect of his failure to pay maintenance. The husband had unilaterally reduced payments at the same time as withdrawing his application to vary the order.
Held: The defendant simply piled . .
Cited – G v G and Another FdNI 25-Oct-2003
There had been a long but argumentative marriage, and the parties disputed distribution of the assets on an ancillary relief application.
Held: The husband could not claim to discount shareholdings as a minority shareholding where he also . .
Appeal from – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
See Also – Mubarak v Mubarik FD 9-May-2006
. .
See Also – Mubarak v Mubarik and others FD 12-Jan-2007
. .
See Also – Mubarak v Mubarak and others CA 17-Jul-2007
Application for leave to appeal against ancillary relief order – protracted proceedings. . .
Cited – Child Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.

Company, Family

Updated: 09 April 2022; Ref: scu.84104

Mir v Mir: FD 29 Jan 1992

Court has the power to order the sale of family home on order to pay sequestrator’s costs. The father had removed a child from the jurisdiction, and the mother required funds to conduct litigation in Pakistan. The father having failed to comply with a court order, the sequestrator had power to sign a conveyance to raise funds as necessary

Citations:

Gazette 29-Jan-1992

Statutes:

Supreme Court Act 1981

Family

Updated: 09 April 2022; Ref: scu.83752

In Re L (Minors) (Care Proceedings: Cohabiting Solicitors): FD 27 Jul 2000

Where two solicitors who cohabited appeared on either side of a case, it was appropriate, if objection was taken, for either or both to withdraw. The cohabitation could give rise to a perception of bias. The power to remove an advocate is inherent and statutory. The freedom to choose one’s advocate is fundamental, and must be limited only with great care. An injection was unnecessary, and the court can remove the name from the court record. No formal or general rule can be set as to the circumstances in which such decisions may need to be made.

Citations:

Times 27-Jul-2000, Gazette 19-Oct-2000

Legal Professions, Family

Updated: 08 April 2022; Ref: scu.81988

Essex County Council v Regina (Legal Professional Privilege): FD 23 Jul 1993

The court’s duty to a child’s welfare can override issues of legal professional privilege if necessary. Parties and their legal professional representatives appearing in a court on a Children’s Act matter had a positive duty to disclose material documents, including experts’ reports and even where otherwise protected by privilege. If not the court’s assessment of the risks facing a child may be distorted.

Judges:

Thorpe J

Citations:

Ind Summary 16-Aug-1993, Times 18-Aug-1993

Statutes:

Children Act 1989

Children, Family, Legal Professions

Updated: 08 April 2022; Ref: scu.80368

Valcheva v Babanarakis: ECJ 12 Apr 2018

Concept of ‘Rights of Access’ – Applicability To Grandparents – Opinion – Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Scope — Concept of ‘rights of access’ – Applicability to grandparents)

Citations:

C-335/17, [2018] EUECJ C-335/17 – O, ECLI:EU:C:2018:242, [2018] EUECJ C-335/17

Links:

Bailii, Bailii

Jurisdiction:

European

Children, Family

Updated: 07 April 2022; Ref: scu.608653

RS v LS and LMP: FD 7 Mar 2018

Application by LS, a judgment debtor, to set aside a default judgment in the sum of pounds 107,361.07 obtained by solicitors LMP. LMP acted for LS in the context of financial claims arising as a result of divorce proceedings between LS and her former husband, RS. The litigation between these former spouses has been ongoing in the Family Division since 2011; it has been bitterly contested, highly acrimonious, and extremely expensive.

Judges:

Roberts J

Citations:

[2018] EWHC 449 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Costs

Updated: 07 April 2022; Ref: scu.608310

Buehrlen v Buehrlen: FD 24 Nov 2017

Appeal from a case management decision to dismiss or refuse the husband’s application to instruct an employment expert and the husband appeals from that refusal.

Judges:

Moor J

Citations:

[2017] EWHC 3643 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 06 April 2022; Ref: scu.606362