Tag: Family

Malone of Rathcaslin In The County Of Westmeath v Malone Of Coburg Place In The City Of Dublin, O’Connor, Tuite, Ardill, O’Connor, Thomas Richard Rooper, John Conroy Browne, L’Estrange, L’Estrange,; 27 Jun 1841

References: [1841] EngR 890, (1841) West 637, (1841) 9 ER 627
Links: Commonlii
JM brought his bill against an infant and several other defendants, claiming, as against them, certain estates, upon two points, one of law, upon the construction of Lord Sunderlin’s will, the other of fact, that he was the heir male of Lord Sunderlin, charging by his bill that the marriage between his father and mother took place in or about the month of January 1801. With the consent of all parties, one of them being an infant, an issue was directed to inquire whether the plaintiff was the heir at law of his father; and the plaintiff, by the evidence of his mother, proved that the marriage took place in January 1801, and that her son Anthony was born in July of the same year (which would have negatived the claim of the plaintiff, by proving that he had an elder brother); but she swore that Anthony was the last child born before and the plaintiff the eldest son born after her marriage. The infant, having afterwards attained twenty one, was permitted to put in a new answer, and make a new defence ; and it was afterwards ordered that a new trial of the issue should take place, with liberty for him and other defendants to appear by counsel on the trial, and to give the judges report in evidence in respect of those witnesses who, having given evidence in the first trial, bud died. Held, that though it is a matter of discretion in a court of equity whether it will first decide the law or the fact, that the Court had, in the present instance, exercised a sound discretion in adopting the latter mode, inasmuch as all but one had concurred in that course, and a different course as to one might have led to different deterniinations upon the same point: That the issue directing the jury to inquire whether the plaintff was the heir at law was the proper issue to be tried: That though the date of the marriage proved was at variance with that alleged on the record, the Court was right in not dismissing the bill, but granting a new trial, on the ground of their being a misapprehension of the date or the facts: That the infant, though strictly speaking not a party to the issue, being permitted to make a new defence, was bound by the issue: That the judges report was properly directed to be received in evidence, being evidence between the same parties and to the same point.

Taylor v Rudd; 5 Feb 1677

References: [1677] EngR 85, (1677) 2 Chan Cas 241, (1677) 22 ER 926 (B)
Links: Commonlii
The Defendant, four Days after her Husband’s Death, was asked by the Plaintiff, whether she would marry again : and he gave her a Guinea to have ten Guineas for it if she married again. And now she being married, the Plaintiff sued her and her Husband to discover the Promise.

Legg v Goldwire; 10 Nov 1736

References: [1736] EngR 81, (1736) Cas T Talbot 20, (1736) 25 ER 637
Links: Commonlii
Coram: Talbot LC
By Lord Chancellor Talbot – Where articles are entered into before marriage, and a settlement is made after marriage different from those articles (as if by articles the estate was to be in strict settlement, and by the settlement the husband is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settlement; but where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them and shall control the articles. And although, in the case of West v Errissey . . afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles.

Firth v Firth; 25 Jun 1941

References: Unreported, 25 June 1941
Coram: Langton J
Langton J said: ‘[Counsel] said that it was a matter of common knowledge that young people, for a period, at any rate, after their marriage had intercourse only with the intervention of contraceptives. On this part of his common knowledge I can only offer him my sympathy. It is no part of my common knowledge and I decline to accept it as a matter of common knowledge at all.’
This case is cited by:

  • Cited – Baxter -v- Baxter HL ([1948] AC 274)
    The House considered whether a wife who insisted that her husband always used a condom was thereby guilty of a wilful refusal to consummate the marriage within the meaning of section 7(1)(a).
    Held: She was not, for a marriage may be . .
  • Cited – Regina (Smeaton) -v- Secretary of State for Health and Others Admn (Times 02-May-02, Bailii, Bailii, Gazette 30-May-02, [2002] EWHC 610 (Admin), [2002] EWHC 886 (Admin), (2002) 2 FLR 146)
    The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
    Held: ‘SPUC’s case is that any . .

In re AA; COP 23 Aug 2012

Links: Judiciary
Coram: Mostyn J
The patient had been attending a course in the UK for her work. She suffered a further episode of a bipolar condition. Being pregnant she stopped taking her medication. Her mental condition deteriorated, and she was taken into secure psychiatric care under the 1983 Act. She had had two previous children by caesarian section, and the doctors identified a clear risk of uterine rupture if she now attempted a natural birth. Given her mental condition, they feared a lack of co-operation on her part, and her psychiatrist said that in her present condition she lacked the mental capacity to make the decision for herself. Her doctors requested the court to make an order that the birth be a caesarian under conditions of control which would best guarantee the patient’s health and successful delivery.
Held: (ex tempore) The medical evidence was clear, from her psychiatrist as to capacity and from her gynaecoligist as to the best method of delivery, and both indicated the need for intervention. The order was made accordingly.
The court noted the interest of the local social services in their concern for the care of the child who might be born, and reminded them of the need for appropriate caution and due procedure in any ensuing proceedings.
Statutes: Mental Health Act 1983 3, Mental Capacity Act 2005
This case is cited by:

  • Cited – In re P (A Child) Misc (Bailii, [2013] EW Misc 20 (CC))
    Chelmsford County Court – The court heard an application by the local authority for an order freeing a child for adoption. The mother suffered a continuing mental health condition but that was presently under control.
    Held: The threshold . .
  • Cited – In re P (A Child) FD (Bailii, [2013] EWHC 4048 (Fam))
    A local authority applied for a reporting restriction order. The Italian mother when pregnant suffered mental illness. She ceased treatment to protect her unborn child and became psychotic and delusional and was detained in a mental hospital. She . .
  • Cited – Re P FD (Bailii, [2013] EWHC 4037 (Fam))
    A local council applied for a reporting restriction order in the context of a case as to which there had been substantial public discussion and conflict.
    Held: As to the child involved: ‘the arguments in favour of the continuing anonymisation . .

AHE Leeds Teaching Hospitals NHS Trust v A, A, YA and, ZA (By Their Litigation Friend, the Official Solicitor), the Human Fertilisation and Embryology Authority B, B: QBD 26 Feb 2003

References: [2003] EWHC 259 (QB), Gazette 01-May-2003, [2003] 1 FLR 1091
Links: Bailii
Coram: The President
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents had been given, and the concept under the Act of ‘treatment together’. Any interference with the right to family life was proportionate and necessary.
Statutes: Family Law Act 1986 55A, Human Fertilisation and Embryology Act 1990 28 29
This case cites:

  • Cited – U -v- W (Attorney-General Intervening) FD (Gazette 19-Mar-97, Times 04-Mar-97, [1998] Fam 29, [1997] 2 FLR 282)
    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 . .
  • Cited – Pepper (Inspector of Taxes) -v- Hart HL (lip, [1992] 3 WLR 1032, [1993] AC 593, [1993] 1 All ER 42, Bailii, [1992] UKHL 3)
    The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
  • Cited – Marckx -v- Belgium ECHR (6833/74, (1979) 2 EHRR 330, Bailii, [1979] ECHR 2)
    The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
  • Cited – Kroon And Others -v- The Netherlands ECHR (18535/91, (1995) 19 EHRR 263, Bailii, [1994] ECHR 35, ECHR, , Bailii, [1995] 2 FCR 28)
    Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
  • Cited – Re B (Parentage) FD ([1996] 2 FLR 15)
    A mother applied for financial provision for her twin children under 1989 Act Sch 1. The father asked whether he was their parent within the Schedule. They had been born by artificial insemination. He accepted that he was the donor of the sperm and . .
  • Cited – Regina -v- Human Fertilisation and Embryology Authority ex parte DB CA (Times 07-Feb-97, Bailii, [1997] EWCA Civ 946, [1997] 2 WLR 806, Bailii, [1997] EWCA Civ 3092, [1999] Fam 151, Bailii, [1997] EWCA Civ 4003)
    At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
    Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
  • Cited – McMichael -v- United Kingdom ECHR (Times 02-Mar-95, (1995) 20 EHRR 205, Bailii, 16424/90, ECHR, , Bailii, [1995] ECHR 8)
    In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
    Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
  • Cited – Re H; Re G (Adoption: Consultation of Unmarried Fathers) CA ([2001] 1 FLR 646)
    Not every natural father has a right to respect for his family life with regard to every child of whom he may be the father (see also McMichael v United Kingdom (1995) 20 EHRR 205). The application of Art 8(1) will depend upon the facts of each . .
  • Cited – Re S (Freeing for Adoption) CA ([2002] 2 FLR 681, [2002] EWCA Civ 798)
    If parliament always foresaw what possibilities might arise, courts would never have anything to interpret. . .
  • Cited – Mrs U -v- Centre for Reproductive Medicine CA ([2002] EWCA Civ 565)
    The 1990 Act lays great emphasis upon consent. Scientific techniques developed since the first IVF baby open up the possibility of creating human life in quite new ways bringing huge practical and ethical difficulties. These have to be balanced . .
  • Cited – Mikulic -v- Croatia ECHR (53176/99, Bailii, [2002] ECHR 27, Bailii, ECHR 2002-I)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 8; Violation of Art. 13 with regard to the complaint under Article 6-1; Not necessary to examine Art. 13 with regard to the . .
  • Cited – Re R (A Child) CA (Bailii, [2003] EWCA Civ 182)
    . .
  • Cited – Regina (Rose and Another) -v- Secretary of State for Health and the Human Fertilisation and Embryology Authority Admn (Times 22-Aug-02, Bailii, Gazette 10-Oct-02, [2002] EWHC 1593 (Admin))
    Applications were made, challenging the refusal of the Secretary of State for Health, and the Human Fertilisation and Embryology Authority, to institute a system where a child born by artificial insemination could make enquiries as to his or her . .
  • Cited – Johansen -v- Norway ECHR (17383/90, (1997) 23 EHRR 33, Bailii, [1996] ECHR 31, ECHR, , Bailii)
    The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
    Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
  • See also – Leeds Teaching Hospitals NHS Trust -v- Mr & Mrs A, YA, ZA, Mr & Mrs B T Authority QBD ([2003] 1 FLR 412)
    At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
    Held: Difficult issues of . .

This case is cited by:

The Duchess of Kingston’s Case; 1 Apr 1776

References: [1776] EngR 16, (1776) 1 Leach 146, (1776) 168 ER 175, [1775] EngR 54, (1775) Amb 756, (1775) 27 ER 487, (1776) 2 Smith’s LC, 13th ed 644
Links: Commonlii, Commonlii
On plea, sentence in ecclesiastical Court ex directo in a matter properly cognizable there, is conclusive evidence where the same matter comes into question collaterally in a court of law or equity.
A sentence of jactitation is not conclusive evidence against an indictment of bigamy, for its validity may be impeached, as having been obtained by fraud. A peeress convicted of clergyable felony shall be discharged without burning or imprisonment.
This case is cited by:

  • Cited – Prest -v- Petrodel Resources Ltd and Others SC (Bailii, [2013] UKSC 34, [2013] WLR(D) 237, [2013] 3 FCR 210, [2013] 4 All ER 673, [2013] Fam Law 953, [2013] 2 FLR 732, [2013] BCC 571, [2013] 2 AC 415, [2013] WTLR 1249, [2013] 3 WLR 1, Bailii Summary, UKSC 2013/0004, SC Summary, SC)
    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 . .
  • Cited – Virgin Atlantic Airways Ltd -v- Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
    Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .

Millward v Littlewood; 6 Nov 1850

References: [1850] EngR 814, (1850) 5 Exch 775, (1850) 155 ER 339
Links: Commonlii
A declaration alleged, that in consideration that the plaintiff, at the defendant’s request, promised to marry him, he promised to marry her. Averments that the plaintiff hath continued and still is unmarried, and, until the discovery of the defendant’s marriage, was ready and willing to marry him, that, after the defendant’s promise the plaintiff discovered that the defendant, at the time of his promise, was, and still is, married, and that the plaintiff had not, at the time of the defendant’s promisee, any notice of the defendant’s then marriage. Held, on motion in arrest of judgment, that the declaration was good, and that the plaintiff’s remaining unmarried was a sufficient consideration to support the defendant’s promise – Quaere, whether a promise by a married man to marry another woman after his wife’s death is void.

The Trusts of Waite’s Will Ex parte Pugh; 2 Jul 1852

References: [1852] EngR 803, 11 Vict c 96, (1852) 61 ER 428
Links: Commonlii
As between the husband’s creditors and the wife, in respect of the wife’s equity for a settlement, the Court will, under circumstances, give the wife more than one-half; and where the wife had been at the time of the marriage and long afterwards in circumstances of comfort, and was reduced to distress by the husband’s embarrassments, the Court gave the costs of the Petitioner and of the husband’s assignees out of the fund, which was £681, £400 to the wife, and the remainder to the Petitioner ; the wife’s costs out of her own fund.

Zyk v Zyk; 15 Dec 1995

References: [1995] FamCA 135
Links: Austlii
Coram: Nicholson CJ, Fogarty and Baker JJ
Austlii (Family Court of Australia) Property Settlement – Global or asset by asset approach – Treatment of lottery winnings The wife appealed against orders for the alteration of the property interests. The husband was aged 69 at trial, and the wife aged 63. The period of cohabitation was approximately 8 years.
The wife owned assets of a substantially higher value than did the husband at the date of marriage and some of the assets of each were retained at separation.
About two years after the marriage the husband had a lottery win of approximately $95,000. He had been involved in a syndicate prior to the marriage, and the wife had had no involvement in the lottery purchases but the winnings were used by the parties for joint purposes. During most of the marriage both parties worked and throughout shared income and expenses. His Honour treated the winnings as a contribution by the husband. Otherwise he treated their contributions as equal.
Taking that win into account as a contribution by the husband, his Honour assessed the parties’ contributions arising from their initial contribution at 72/28 in the wife’s favour, made a 2% adjustment to the husband for provision the wife had made for her children, a further 3% for contributions during marriage, and 2% for s.75(2) factors, arriving at a 65/35 division of the parties’ assets in the wife’s favour.
This case is cited by:

  • Cited – S -v- AG (Financial Remedy: Lottery Prize) FD (Bailii, [2011] EWHC 2637 (Fam))
    The court considered how to treat a lottery win of £500,000 in the context of an ancillary relief application on a divorce.
    Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .

M v M; FDNi 20 Dec 2001

References: Unreported, 20 December 2001
Coram: McLaughlin J
The court considered the approach to the evaluation of contributions in ancillary relief proceedings in a divorce where there were substantial assets. McLaughlin J said: ‘In the course of adducing evidence before me counsel sought to tempt me with a bait of this kind. He led evidence, and relied upon it in his closing submissions, that the husband worked very long hours getting out of bed at 6.00am to be at work by 7.00am. His work did not finish until late in the evening as he carried on his working day by supervising Y limited and the other business premises owned by the company. I accept all of that evidence as true, but to concentrate on that and fail to recognise that, whilst he toiled at work on company business, Mrs M from early in the morning was getting the children ready for school, taking them there, running the home during the day, collecting them after school, cooking and cleaning, nurturing them by ferrying them to social, sporting and recreational activities, supervising homework and tutoring them when required, would be to be guilty of the very kind of discrimination warned against by Lord Nicholls. An example of the value of the life’s work of Mrs M can be seen today in the accomplishments and personalities of their children. These are the abiding rewards of her labour of love rather than the transient rewards in the form of money produced by the labour of the husband. In the context of this family’s life these admirable qualities of both parties are to be considered of equal value. Indeed the words of Lord Nicholls might almost have been written to describe the respective roles of Mr and Mrs M.’
This case cites:

This case is cited by:

  • Cited – Shan Elizabeth Rose Lambert -v- Harry Paul Lambert CA (Times 27-Nov-02, Bailii, [2002] EWCA Civ 1685, [2003] 1 FLR 139, [2003] Fam 103, [2003] 2 WLR 631, [2003] 4 All ER 342, [2002] 3 FCR 673, [2003] Fam Law 16, Independent 21-Nov-02)
    The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
    Held: The Act gave . .

Rapisarda v Colladon (Irregular Divorces); FC 30 Sep 2014

References: [2014] EWFC 35
Links: Bailii
Coram: Sir James Munby P FD
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Held: It had been asserted that the English court had jurisdiction to entertain the petition in accordance with the Council Regulation on the basis that the petitioner was habitually resident and had been resident in England and Wales. In all but one case there was in fact no reason to think there had been any UK residence. The English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition. It was apparent that an Italian had been offering a service providing UK divorces to Italian nationals.
Petitions not having reached the stage of decree had now been dismissed. The decrees must be set aside as being void for fraud. In each case the underlying petition must be dismissed. This is not a matter of judicial discretion; it is the consequence which follows inexorably as a matter of law from the facts as I have found them. It made no difference if one or other or both of the parties have re-married or even had a child.
Sir James summarised the law: ‘i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;
ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;
iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;
iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.’
Statutes: Domicile and Matrimonial Proceedings Act 1973 5(2), Council Regulation (EC) No 2201/2003, Matrimonial and Family Proceedings Act 1984, Family Procedure Rules 2010 7.5(1), Matrimonial Causes Act 1973 8
This case cites:

  • Cited – Ali Ebrahim -v- Ali Ebrahim (Queen’s Proctor intervening) ([1983] 1 WLR 1336)
    . .
  • Cited – Sheldon -v- Sheldon (The Queen’s Proctor Intervening) ([1865] EngR 180 (A), Commonlii, (1865) 4 Sw & Tr 75)
    Practice. – Dismissal of Petition – No Evidence produced -The Queen’s Proctor intervened in a suit for dissolution in which the respondent did not appear, and alleged collusion and the petitioner’s adultery. No evidence being tendered in support of . .
  • Endorsed – Crowden -v- Crowden (The King’s Proctor showing cause) ((1906) 23 TLR 143)
    The normal practice of the Queen’s Proctor is not to adduce evidence in support of the plea on intervening in a divorce petition, and there is no need for him to do so where there is no answer to the plea. . .
  • Endorsed – Clutterbuck -v- Clutterbuck and Reynolds (Queen’s Proctor showing cause) ([1961] 105 Sol Jo 1012)
    The court considered the proper practice where the Proctor intervened in a divorce petition, but no answer was received from the parties. . .
  • Cited – Wiseman -v- Wiseman ([1953] P 79)
    A decree absolute of divorce which would otherwise be void, will still be void even though one of the parties has subsequently remarried and had a child. . .
  • Cited – Bater -v- Bater CA ([1906] P 209)
    The judgment of a divorce court dissolving a marriage is a judgment in rem, conclusively established the new status of the parties to the suit. A decree obtained in a foreign country by false evidence or by collusion in regard to the matrimonial . .
  • Cited – Lazarus Estates Ltd -v- Beasley CA ([1956] 1 QB 702, [1956] 1 All ER 341)
    There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .
  • Cited – Callaghan -v- Hanson-Fox (Andrew) ([1992] Fam 1, [1991] 2 FLR 519)
    H sought to have set aside a decree absolute obtained on the petition of his now deceased wife on the ground of fraud, in that the petitioner had falsely sworn in her affidavit verifying the petition that the marriage had broken down irretrievably . .
  • Cited – Moynihan -v- Moynihan (No 2) FD ([1997] 1 FLR 59)
    The Queen’s Proctor applied to have set aside a decree absolute of divorce obtained by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The particulars set out in the petition were false in a number of material respects; the . .
  • Cited – S -v- S (Ancillary Relief: Consent Order) FD (Gazette 11-Apr-02, [2002] 3 WLR 1372, [2003] Fam 1, [2002] 1 FLR 992, [2002] IDS Pensions Law Reports 219)
    An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
  • Cited – Marinos -v- Marinos FD (Bailii, [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018)
    The court was asked as to points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised). The greek father and english mother and their children had lived in Greece and England. W began . .
  • Cited – Kearly -v- Kearly FD ([2009] EWC 1876 (Fam), [2010] 1 FLR 619)
    . .
  • Cited – Leake -v- Goldsmith FD (Bailii, [2009] EWHC 988 (Fam), [2009] 2 FLR 684)
    . .
  • Cited – V -v- V FD (Bailii, [2011] EWHC 1190 (Fam), [2011] 2 FLR 778)
    The court was asked as to its jurisdiction to hear a divorce petition under the Regulation Brussels II Revised. . .
  • Cited – Tan -v- Choy CA (Bailii, [2014] EWCA Civ 251)
    This appeal concerns the fifth indent of Article 3(1)(a) of the Regulation, which provides that ‘[i]n matters relating to divorce . . jurisdiction shall lie with the courts of the Member State (a) in whose territory . . the applicant is habitually . .

Forbes v Forbes; 9 Feb 1854

References: [1854] EngR 230, (1854) Kay 341, (1854) 69 ER 145
Links: Commonlii
A man cannot have two domicils, at least with reference to the succession to his personal estate.
Legitimate children acquire by birth the domicil of their father.
An infant cannot change his domicil by his own act.
A new domicil cannot be acquired except by intention and act; but, being in itinere to the intended domicil, is a sufficient act for this purpose.
But the strongest intention of abandoning a domicil, and actual abandonment of residence, will not deprive a man of that domicil, unless he has acquired another.
An engagement to serve, and actual service in the Indian Army, under a commission from the East India Company, when the duties of such an appointment necessarily require residence in India for an indefinite period, confers upon the officer an Anglo-Indian domicil ; for the law, in such a case, presumes an intention consistent with his duty, and holds his residence to be animo et facto in India. And this, even if he have property in the country which was his domicil of origin.
An Anglo-Indian is not, for all purposes, an English domicil.
A domiciled Scotchman, having ancestral property but no house in his native country, by accepting a commission, and serving in the Indian Army, abandoned his domicil of origin, and acquired an Anglo-Indian domicil. He afterwards attained the rank of general in the Indian Army, and was made colonel of a regiment, and then left India with the intention of not returning thither, but came to Great Britain, where he lived part of the year in a house which he had built on his estate in Scotland, and part in a hired house in London, under circumstances which, if he had been a single man, would have given him again a Scotch domicil; but his wife and establishment of servants resided constantly at the house in London. Held, that this fact counterbalanced the effect of the other circumstances, and proved that his intention was permanently to reside in England ; and that, therefore, he must be considered to have abandoned his acquired domicil in India, and acquired, by choice, a new one in England.
This case is cited by:

  • Cited – Holliday and Another -v- Musa and Others CA ([2010] 2 FLR 702, Bailii, [2010] EWCA Civ 335, [2010] Fam Law 702, [2010] WTLR 839)
    The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .

Sheldon v Sheldon (The Queen’s Proctor Intervening); 28 Jan 1865

References: [1865] EngR 180 (A), (1865) 4 Sw & Tr 75
Links: Commonlii
Practice. – Dismissal of Petition – No Evidence produced -The Queen’s Proctor intervened in a suit for dissolution in which the respondent did not appear, and alleged collusion and the petitioner’s adultery. No evidence being tendered in support of the petition, when the case came n for hearing the Court dismissed the petition, without requiring evidence to be produced in support of the Queen’s Proctor’s plea.
This case is cited by:

  • Cited – Rapisarda -v- Colladon (Irregular Divorces) FC (Bailii, [2014] EWFC 35)
    The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.

Re Fuld (deceased) (No. 3): 1965

References: [1965] P 675
Coram: Scarman J
Scarman J dismissed the idea that the standard of proof required to prevent an inference of the revival of a domicile of origin on the loss of a domicile of choice was the criminal standard. An inference drawn by the court must be consistent with all the relevant proved or admitted facts. He said: ‘There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?
In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin ‘is more enduring, its hold stronger and less easily shaken off.’ In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear – first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.’
This case is cited by:

  • Cited – Barlow Clowes International Ltd & Others -v- Henwood CA (Bailii, [2008] EWCA Civ 577, Times 18-Jun-08)
    The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
  • Approved – Buswell -v- Inland Revenue Commissioners CA ([1974] 1 WLR 1631)
    . .
  • Cited – Holliday and Another -v- Musa and Others CA ([2010] 2 FLR 702, Bailii, [2010] EWCA Civ 335, [2010] Fam Law 702, [2010] WTLR 839)
    The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .

The London Chartered Bank of Australia v William George Lempriere And Others; 6 Feb 1873

References: [1873] EngR 3, (1873) 9 Moo PC NS 426, (1873) 17 ER 574
Links: Commonlii
The property of a married woman, settled by an ante-nuptial Settlement for her separate use for life, with remainder as she should by Deed or Will appoint, with remainder in failure of appointment to her Executors or Administrators, is an absolute settlement for her sole and separate use, without restraint or anticipation, and vests in equity the entire corpus in her for all purposes.

Sullivan v Sullivan, Falsely Called Oldacre; 11 Jun 1818

References: [1818] EngR 533, (1818) 2 Hag Con 238, (1818) 161 ER 728
Links: Commonlii
Nullity of marriage, by reason of publication of banns in false names, not supported in fact. This was a suit of nullity of marriage, by reason of the publication of banns not being made in the true names of the parties. The suit was brought by the father of the husband, as his natural guardian. The libel stated the circumstances, in which it was alleged that the marriage was effected by artifices and misrepresentations, and in a, cladestine manner, and in a parish to which neither of the parties belonged, and entirely unknown to the father of the minor; and that it was celebrated by banns under a false designatdon of the woman.
‘The strongest case you could establish of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not enable this Court to release him from chains which, though forged by others, he had riveted on himself. If he is capable of consent and has consented, the law does not ask how the consent has been induced.

ABC v PM and Another; FC 5 Mar 2015

References: [2015] EWFC 32
Links: Bailii
Coram: Moor J
The parties were involved in substantial ancillary relief disputes. W now complained that H had charged his only asset within the jurisdiction, the house in which she lived, to secure his legal fees. She had already asserted a claim against it within the proceedings. The Court had already found that H had failed to disclose substantial offshore assets. H now appealed against an order stting the charge aside.
Statutes: Matrimonial Causes Act 1973
This case cites:

  • Cited – Robinson -v- Robinson (Practice Note) CA ([1982] 2 WLR 146, [1983] Fam 52)
    The husband was a serving soldier who had had various postings abroad. The wife returned home, where she discovered that she was pregnant. He followed her home, but she left him, and applied for maintenance. The justices found that she had deserted . .
  • Cited – Kemmis -v- Kemmis (Welland and Others Intervening) CA ([1988] 1 WLR 1307, [1988] 2 FLR 223)
    H had mortgaged the matrimonial home to release funds to support his lifestyle. The bank knew about the family circumstances and the mortgage was set aside at first instance. W applied to have the charge set aside.
    Held: The application . .
  • Cited – Kremen -v- Agrest FD (Bailii, [2010] EWHC 2571 (Fam), [2011] 2 FLR 478, [2011] Fam Law 567)
    Application as to payment of funds held where the payer was a fugitive from justice, owing sums in maintenance to the claimant. W applied for an order setting aside a charge granted by H over property. In previous hearing the court had found that H . .

Mussumat Bebee Bachun v Sheikh Hamid Hossein And Mussumat Durjahun; And Mussumat Bebee Bachun, Mussumat Bebee Sogra And Moulvie Abdool Azeez v Sheikh Hamid Hossein And Mussumat Durjahun; 13 Dec 1871

References: [1871] EngR 57, (1871) 14 Moo Ind App 377, (1871) 20 ER 828
Links: Commonlii
A Mohamedan Widow, whose husband died without issue, having been put in possession of her husband’s estate by the Collectorate Courts as a co-heir and for her deferred dower, has a lien, as a Creditor, on the estate, and is entitled to retain possession until her dower is satisfied. 40,000. Held, in the circumstances of the status and means of the deceased Husband, and the custom of Sheikh families in Behar, not an excessive amount for deferred dower.