Family Law Cases

Marriage

Hyde v Hyde (1865-1869) LR 1 PD 130 (at p 133)

voluntary union for life
of one man and one woman
to the exclusion of all others

Bellinger v Bellinger [2001] EWCA Civ 1140 (Thorpe LJ para 128)

a contract for which the parties elect but which is regulated by the state,
both in its formation and in its termination by divorce because
it affects status upon which depend a variety of entitlements,
benefits and obligations

Khan v UK (1986) 48 DR 253

Legislation making void a marriage contracted by a girl under 16 and criminalising
sexual intercourse with such a person
Applicant complained that he had been prevented from manifesting his religion through
his Islamic marriage

X. v. United Kindom (App. No. 3898/68, ECmHR decision of 22 July 1970)

Applicant petitioned to marry a British national while in prison to avoid deportation
Refused - Still married in Pakistan

Mossop v Mossop [1988] 2 FLR 173 CA:

Contributions in money or money's worth for the improvement of property
No right to have an order transferring property in the same way as for spouses

B and L v UK [2006] 1 FLR 35

Whiston v Whiston [1995] 2 FLR 268

Corbett v Corbett [1971] P 83

Parry v UK (2006) (App. no. 42971/05)

R and F v United Kingdom (2006) (App. no. 35748/05)

Pugh v Pugh [1951] 2 All ER 680

void due to age

Whiston v Whiston [1995] 2 FLR 268

void because already married

J v S-T (Formerly J) (Transsexual: Ancillary Relief) [1997] 1 FLR 402

not male and female - void
 Ghandi v Patel [2002] 1 FLR 603
no marriage at all

Gereis v. Yagoub [1997] 1 FLR 854

void:
marriage ceremony recognisable as a marriage, but
priest not licensed, no notice of marriage

Hudson v Leigh [2009] EWHC 1306 (Fam)

The religious ceremony did not even purport to be a lawful marriage,
neither party believed or intended for it to have valid effects
Non -marriage

El Gamal v Al Maktoum [2011] EWHC 3763

Intention is not decisive
If no compliance with the formalities, not even a void marriage

Dukali v Lamrani [2012] EWHC 1748

Parties belief that it was a lawful ceremony insufficient if no resemblance to a marriage
under English law
Non-marriage

Chief Adjudication Officer v Bath [2000] 1 FLR 8

Guilty knowledge by parties required for void marriage
MA v JA [2012] EWHC 2219 (Fam)
All the hallmarks of a valid marriage, but celebrant had not informed parties that
failure to give notice was in breach of the Marriage Act
Valid marriage

Pazpena de Vire v Pazpena de Vire [2001] 1 FLR 460

Where there has been a lengthy cohabitation, the presumption of marriage can only
be rebutted by clear evidence that there had been no marriage ceremony
or that formalities had not been complied with

A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6

Even though proxy marriage open to abuse, presumption of marriage

Re Spence [1990] 2 FLR 278

If the marriage was annulled after the birth, the child is legitimate;
but a void marriage cannot legitimise those born illegitimate.

P v P [1964] 3 All ER 919

only one act of intercourse required

R v R [1952] 1 All ER 1194

 consummation whether or not complete intercourse

Baxter v Baxter [1948] AC 274

consummation irrespective of the possibility of the act resulting in birth
(intercourse with contraception)

S v S (otherwise C) [1956] P. 1
permanent physical incapacity

Singh v Singh [1971] 2 WLR 963

repugnance due to psychiatric or sexual aversion
not simple lack of attraction

Horton v Horton [1948] 2 All ER 871

settled and definite decision not to consummate without just excuse

Ford v Ford [1987] Fam. Law 232

no opportunity to consummate is not refusal (respondent in prison)

Kaur v Singh [1972] 1 WLR 105

refusal to undergo religious ceremony (upon which intercourse was dependent)

A v J [1989] 1 FLR 110

decision to postpone a religious ceremony indefinitely

Szechter v Szechter [1971] P 286

high threshold:only if threat to life, limb or liberty

Hirani v Hirani [1983] 4 FLR 232

Test for duress: effect, rather than nature, of the threat
Whatever the threat, its effect must be overbearing the will of the individual
Social pressure can have such an effect

P v R (Forced Marriage) [2003] 1 FLR 661

severe emotional pressure

Scott v Selbright (1886) 12 PD 21 at p. 24

As long as the belief in the threat is honest,
it is irrelevant if the threat is genuine

NS v MI [2006] EWHC 1646 (Fam)

threat can emanate from a third party,
not necessarily the spouse

A Local Authority v N [2005] EWHC 2956

Cultural differences need to be taken into account
Militante v Ogunwomoju [1993] 2 FCR 355
voidable if there was case of impersonation

Wakefield v MacKay (1807) 1 Hag Con 394 at p. 398

mistake as to an attribute of the other party not sufficient

Valier v Valier (1925) 133 LT 830

petitioner believed it was an engagement ceremony

Messina v Smith [1971] P. 322

mistake as to the legal effects of marriage insufficient

Sheffield City Council v E and S [2004] EWHC 2808 (Fam)

Test: understanding of marital duties and responsibilities
Focus on the persons capacity to understand marriage, not on whether it was wise for
them to marry

X City Council v MB [2007] 3 FCR 371

Capacity to consent to sexual intercourse (understand the nature and consequences of it)

Sullivan v Sullivan (1812) 2 Hag Con 238 at p. 246

drunkenness

Vervaeke v Smith [1983] 1 AC 145

D v D (Nullity) [1979] Fam. 70

Whiston v Whiston [1995] 2 FLR 268

Rampal v Rampal [2001] 2 FCR 552

Secretary of State for Work and Pension v M [2005] 1 FCR 497 para. 99

Wilkinson v Kitzinger [2006] 2 FCR 537

Divorce

Richards [1972] 3 All ER 695

Court satisfied marriage irretrievably broken down,

but not that he behaved in such a way that she could not be expected to live with him

Buffery [1988] FCR 465

If none of the facts is proved divorce cannot be granted,

even if the court is convinced the marriage has irretrievably broken down

Dennis [1955] 2 All ER 51

adultery is not proved unless there is some penetration

Livingstone-Stallard [1974] 2 All ER 766

Accumulation of trivial incidents rather than one major act

Birch [1992] 1 FLR 564

Court considers the personalities of the parties in deciding if the conduct was sufficient
for the petitioner not to be able to live with the respondent

Katz [1972] 3 All ER 219

Irrelevant that the unreasonable conduct was caused by illness
The facts are such that W cannot be expected to live with him

Pheasant [1972] 2 WLR 353

H unsuccessfully invoked lack of spontaneous demonstration of affection

Nutley [1970] 1 WLR 217

Wife left matrimonial home with husbands consent to look after her parents
If consent not withdrawn, agreement remains in existence

Quoraishi [1985] FLR 780

If desertion is justifiable, it cannot be relied upon
Second wife moving in

o Hollens (1971) SJ 327

same house, but no common life

o Mouncer [1972] 1 All ER 289

separate bedrooms, but one household (ate together, divided chores)

o Fuller [1973] 1 WLR 730

husband living as a lodger with wife and her new boyfriend

o Santos [1972] 2 All ER 246

petitioner must prove mental separation in addition to physical separation

Archer v Archer [1999] 1 FLR 327

W claimed if H predeceased her, maintenance payments would stop
and her living standard would lower
Court refused to find the wife would suffer financial hardship

Bradley [1973] 3 All ER 750

Wife unsuccessfully applied for council accommodation for herself and the children
Held:No choice - No alternative accommodation for petitioner
Not precluded from relying on behaviour

Dennis [2000] 2 FLR 231

Financial property orders

Piglowska v Piglowski [1999] 2 FLR 763

White v White [2000] 2 FLR 976

A v A (Maintenance Pending Suit: Provision of Legal Fees) [2001] 1 FLR 377

- Not just daily living expenses
- May include sum to cover costs of the proceedings

M v M (Maintenance Pending Suit) [2002] EWHC 317 (Fam)

- Substantial order can be made
(wife received 330.000 per annum maintenance)

Atkinson v Atkinson [1988] Ch 93

- Settled (long-term) cohabitation cannot be equated with marriage
- Court would have to make qualitative judgement about what settled
cohabitation is

Duxbury calculation for lump sum orders:

= sum needed by a person in order to spend the rest of their life at a certain
amount of yearly expenditure
Factors:
inflation, life expectancy, income tax, capital growth, income from
investments

A v A (Elderly Applicant: Lump Sum) [1999] 2 FLR 969

Duxbury result reduced to give recognition to the husbands
significant contribution

Fournier v Fournier [1999] 2 FLR 990

Duxbury formula inappropriate Wifes long life expectancy

Westbury v Sampson [2001] EWCA Civ 4807

Court should exercise power to vary the quantum of a lump sum only in
exceptional circumstances

Miller v Miller [2006] UKHL 24

 Barrett v Barrett [1988] 2 FLR 516

Short, childless marriage, parties easily returnable to the pre-marital

position
Hobhouse v Hobhouse [1999] 1 FLR 961

Wealthy parties who can afford a substantial lump sum

White v White [2000] 2 FLR 982

Both spouses have well-established careers

Burgess v Burgess [1996] 2 FLR 34

Too much uncertainty over recipients financial future

Whiting v Whiting [1988] 2 FLR 189

Recipient has insufficient capital and/ or earning capacity

Flavell [1997] 1 FLR 353

Failure can result in an order being set aside

Jenkins v Livesey (Formerly Jenkins) [1985] AC 424

A costs penalty can be imposed, but a reduction in the partys share of assets
is unlikely
P v P (Financial Relief: Non-Disclosure) [1994] 2 FLR 381

Adverse inference where the lifestyle is not commensurate to the declared

income
Al-Khatib v Masry [2002] 2 FCR 539

A v A (Financial Provision) [1998] 2 FLR 180

A woman in her mid-40s cannot be expected to start seeking full-time

employment although she had a degree

Atkinson (No. 2) [1996] 1 FLR 51

Wifes periodical payments were reduced after she started to cohabit

Duxbury [1987] 1 FLR 7

Husband millionaire, wifes cohabitation ignored

White [2000] 2 FLR 981

Spouse allowed to keep inherited property unless the other partys needs
cannot be met otherwise

GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108

 Contrary to the express words of s25(2)(a) to exclude non-marital assets from
the pool of assets to distribute

P v P (Inherited Property) [2004] EWHC 1364 (Fam)

Farm which had been the husbands family for generations
Different treatment for landed estate that had been with one spouses family
for generations, and brought into the marriage with the expectation that it would be
retained in specie for future generations

S v S [2007] EWHC 1975 (Fam)

In a needs case (vs big money case) all assets which came into the
marriage have to be made available to meet parties requirements.
Long marriage - As time goes by, all assets become amalgamated.

Jones v Jones [2011] EWCA Civ 41

Non-marital assets excluded from redistribution
(except where parties needs cannot be met)

K v L [2011] EWCA Civ 550

No rule that non-matrimonial property will always be shared after lengthy marriage

Cordle v Cordle [2002] 1 FCR 97:

Housing is the first need considered
- Provide a home for children and their carer
- Provide money to the non-resident parent to be rehoused

Dart v Dart [1996] 2 FLR 286

Wife awarded 4 million of her husbands 400 million fortune
Held:
A challenge to the reasonable requirements approach should be made by
Parliament

Miller v Miller [2006] UKHL 24

Equal sharing of the fruits of matrimonial partnership
However not perfectly equal division:
the investment each party has put into the marriage also considered

Delany [1990] 2 FLR 457

Obligations to new family must be factored in

Relevant for rich couples

Leadbeater v Leadbeater [1985] 1 FLR 789

Actual standard enjoyed, not the one spouses could have afforded to have
A v A (Financial Provision) [1998] 2 FLR 180
Spouses lived in frugality despite being rich
 After a short marriage to a very wealthy spouse, a party cannot expect to
live at the same rate as during the marriage
McCartney v Mills McCartney [2008] EWHC 401 (Fam)

Foster v Foster [2003] 2 FLR 299

No justification for treating differences in income any differently from differences in
breadwinning or homemaking

Jones v Jones [2011] EWCA Civ 41

Non-marital assets excluded from redistribution

unless parties needs cannot be met otherwise

K v L [2011] EWCA Civ 550

No presumption non-matrimonial property will always be shared

after lengthy marriage

Miller v Miller [2006] 2 FCR 213

McFarlane v McFarlane [2006] UKHL 24

redressing any significant prospective economic disparity between the parties
arising from the way they conducted their marriage

GW v RW [2003] 2 FCR 289

Relationship moved smoothly from cohabitation to marriage

Co v Co [2004] EWHC 287 (Fam)

Pre-marital cohabitation taken in consideration,
but as relevant circumstance rather than under the duration heading

v C (Financial Provision: Personal Damages) [1995] 2 FLR 171

Husband with severe disabilities requiring expensive equipment and care
Afforded all available assets

Seaton [1986] 3 CL 380

Wife had borne the financial burden of the marriage
Wrong under the circumstances to impose a continuing obligation of support

White v White [2000] 2 FLR 981

There should be no discrimination in favour of the money earner
and against the home-maker
Whatever the division of labour chosen by husband and wife,
they each contributed equally in their respective spheres
 H-J v H-J (Financial Provision: Equality) [2002] 1 FLR 415
No speciality of husbands contribution
Fairness dictates that parties should leave marriage on broad financial equality as
far as possible

Lambert v Lambert [2002] EWCA Civ 1685

The breadwinners contribution does not weigh heavier than the homemakers
Acknowledgment of special contributions legitimate only in exceptional
circumstances

K v K (Financial Provision: Conduct) [1990] 2 FLR 225

Wife helped her depressed husbands suicide attempt
Award reduced for misconduct

H v H (Financial relief: Attempted Murder as Conduct) [2006] Fam Law 264

Husband attacked the wife with knives in front of the children
Emphasis not on punishment of the blameworth party,
but on the greater needs of the victim

Clark v Clark [1999] 2 FLR 498

Wife imprisoned the elderly husband in a caravan in the garden.
Grave misconduct

G v G [2006] EWHC 2010 (Fam)

Wife took large amounts of money from the husband without his
knowledge

Vaughan v Vaughan [2007] 3 FCR 532

In calculating entitlements,
Court will re-attribute the wasted money to the spouse who spent it

A v A (Financial Provision: Conduct) [1995] 1 FLR 345

Husband made no effort to work,
while wife undertook a degree and started a new career

Whiston [1994] 2 FLR 906

Bigamist barred from seeking financial relief

Rampal v Rampal (No 2) [2001] EWCA Civ 989

Financial relief possible,
but bigamy taken into consideration when calculating award

A v A (Financial Provision) [1998] 2 FLR 180

The wifes adultery did not diminish her contribution as homemaker and child carer
Miller v Miller; McFarlane v McFarlane [2006] 2 FCR 213
Husband ending marriage by committing adultery not sufficiently serious

Edgar v Edgar [1980] 1 WLR 1410

Formal agreements properly arrived at with competent legal advice should
not be displaced unless there are good grounds for concluding it would be unjust to
hold them to the terms

NA v MA [2006] EWHC 2900 (Fam)

Post-nuptial settlement overturned:
entered into under duress, it had been non-negotiable

Radmacher v Granatino [2010] UKSC 42

Courts are bound to give effect to pre-nuptials freely entered into by the parties,
with full appreciation of the consequences, unless it would be unfair to do so
Presumption in favour of enforcing the agreement;
the party challenging it will have the burden of proof
Pre-nuptials will be given decisive weight when courts determine the division of
assets upon divorce,
but they do not oust courts jurisdiction

Kremen v Agrest (No. 11) [2012] EWHC 45

Unfair to hold parties to a post-nuptial agreement which was not entered into
freely, with a full appreciation of its implications

Co-Habitation

Kimber v Kimber [2000] 1 FLR 33:

signposts of cohabitation
Living together in the same household
Sharing daily life tasks
Stability of the relationship
Managing finances together
Existence of children, attitude towards each others children
Ongoing sexual relationship
Objective perception of the relationship by a reasonable person
Fitzpatrick v Sterling Housing Association Ltd [2000] 1 FCR 21
Applicant member of his gay partners family

Ghaidan v Godin-Mendoza [2004]

A person who was living with the original tenant as his or her wife
or husband can include a same-sex partner

Secretary of State v M [2006] 1 FCR 497

 Same-sex couples may constitute a family as much as heterosexual
couples

Goodman v Gallant [1986] 1 All ER 311

If the document establishes the shares the couple are to own in equity,
the court need not consider the issue further

Sekhon v Alissa [1989] 2 FLR 94

Presumption that the recipient holds the property on trust rebutted

if evidence the contribution to the purchase price was intended as gift or loan

Lloyds Bank v Rosset [1990] 1 All ER 1111

(1) Evidence of common intention to share the property beneficially
- express discussions between partners, whether formal agreement or not
(2) Detrimental reliance on common intention
- no evidence of agreement, but evidence comes from the contributions made
to the purchase price of the property

Grant v Edwards [1986] 2 All ER 426

Untruthful excuse for not putting the property into both names

Hammond v Mitchell [1992] 2 All ER 109

Informal assurance:
Dont worry about the future because when we are married
[the house] will be half yours anyway

Le Foe v Le Foe [2001] 2 FLR 970

Wife paying all household expenses
enabled husband to pay mortgage instalments
Held:
Wifes contributions supported the inference they intended her to have
a 50% share in the home

Grant v Edwards [1986] 2 All ER 426

Plaintiff paid many mortgage payments, major contribution to housekeeping
She would not have given Defendant such substantial assistance unless she had an
interest

Crossley v Crossley [2005] EWCA Civ 1581

Assuming liability under the mortgage
In the absence of evidence to the contrary, equitable interests follow legal
interests

Thomas v Fuller-Brown [1988] 1 FLR 237

 Normal DIY acts by the male cohabitant not sufficient
The mere fact that the plaintiff spent money or labour on defendants
property did not, in the absence of express agreement or inferred common intention,
entitle him to an interest

Stack v Dowden [2007] UKHL 17

Where joint legal ownership (property in both names), presumption of joint
beneficial ownership (in equal shares)
Onus on the party who wishes to establish a different common intention
Many more factors than financial contributions are relevant to intention
The whole course of conduct of the parties could be taken into account to establish if
the parties intended to share the property
Court must attempt to infer intention regarding shares by referring to all
the evidence of the case
Lengthy cohabitation, children, however rigidly separate finances

Fowler v Barron [2008] 2 FCR 1

Wrong to concentrate exclusively on the parties financial contributions in
calculating shares
Whole course of conduct of parties must be examined, i.a.:
- How the purchase was financed
- How the parties arranged their finances
- How they discharged the outgoings on the property and other household
expenses
- How much each contributed not decisive

Aspden v Elvy [2012] EWHC 1387 (Ch)

No express discussion about claimant acquiring an interest in the property
A common intention could be inferred based on the whole course of dealing
A fair assessment on the basis of expectation and detriment was for A. to
acquire an interest in the property of 25%

Sutton v Mishcon de Reya and Gawor & Co. [2003] EWHC 3166 (Ch)
Although a property agreement governing the property relationship between adults
who wanted to cohabit would be enforceable,
the agreements in the case at hand represented an attempt to couch a sexual
relationship in property terms.

Morgan v Hill [2006] 3 FCR 620

The court had the power pursuant to the Children Act 1989 Sch.1 para.10 to make
alterations to child maintenance agreements

Domestic Violence

C v. C (Non-molestation Order: Jurisdiction) [1998] 1 FLR 554

Conduct clearly harassing so that the intervention of the court is called for
 Johnson v Walton [1990] 1 FLR 350
Any behaviour intended to cause distress

Rafiq v. Muse [2000] 1 FLR 820

Imprisonment for breaches of NMO

H v. O (Contempt of Court: Sentencing) [2004] EWCA Civ 1691, [2005] 2 FLR

329
More deterrent punishment needed

Lomas v. Parle [2003] EWCA Civ 1084, [2003] 1 FLR 812

Sentence had been too lenient

Re Y (Children) (Occupation Order) [2000] 2 FCR 470

occupation order- last resort in an intolerable situation

Dolan v Corby [2011] EWCA Civ 664

Minor nature of the violence verbal abuse
Respondent vulnerable (psychiatric condition) less able to deal with securing a
new tenancy

Re L (Children) [2012] EWCA Civ 721

no recent violence alleged
but children likely to suffer significant harm if parties did not separate

S v F (Occupation Order) [2000] 1 FLR 255

Urgent action needed
Not enough time to hear the evidence necessary to decide if the applicant had an
interest
Application treated as if made under s 35

Chalmers v. Johns [1999] 1 FLR 392

Occupation orders overriding proprietary rights justified only in exceptional
circumstances
Significant harm

B v. B (Occupation Order) [1999] 1 FLR 715

Balance of harm test not satisfied:
Husband rendered homeless greater harm than mother and chid living in
poor accommodation
Husbands child would suffer more harm than the wife and their baby

Banks v Banks [1999] 1 FLR 726

Harm to the wife, if excluded from the matrimonial home,
greater than harm to the husband if not
G v G (Occupation Order: Conduct) [2000] 2 FLR 36
Focus on the effect of the conduct of the respondent,
not on whether it was intentional

Death of a Family member

Re Jennings (Deceased) [1994] Ch 256

Claimants other than spouses will fail if they are comfortably off
Claim of adult child failed
Need to prove legal and moral obligations immediately before death
Adult children should normally not expect maintenance from parents

Re Hancock (Deceased) [1998] 2 FLR 346

Economic changes matter
- considerable increase in the value of the estate (from 100K to 650K)
Had the deceased been aware that his estate would increase to this level,
he would have provided for his adult daughter accordingly

P v G [2006] Fam Law 178

Wife may be entitled to more than half of the estate
Only the needs and contributions of one spouse had to be taken into account
vs on divorce assets need to be distributed between two parties

Barrass v Harding [2001] 1 FCR 297

Court may find that it was reasonable for the deceased not to provide for the ex
spouse in their will
The divorce decree may prohibit a spouse from applying on the other partys death
clean break

Graham v Murphy [1997] 1 FLR 860

The male cohabitant was his partners dependant
He cared for her until her death
Found entitled to a lump sum enabling him to buy a modest flat

Re Watson [1999] 1 FLR 878

Couple living companionably included
immediately before death
deceased having spent last few weeks in hospital does not prevent claim

Gully v Dix [2004] 1 FCR 453

Lengthy relationship;
applicant temporarily moved out just before death
claim accepted

Churchill v Roach [2004] 3 FCR 744

live in the same household
community of resources, intimacy, mutual support

Baynes v Hedger [2008] 3 FCR 151

Only publicly acknowledged (same-sex) cohabitation

Espinosa v Burke [1999] 1 FLR 747

Regard must be had to the applicants needs;
whether parent had a moral obligation should not be a threshold requirement

Re Pearce (Deceased) [1998] 2 FLR 705

Son had worked on family farm in the expectation he would inherit it

Re Goodchild [1996] 1 WLR 694

Applicants mother had left money to the father - understanding he would leave it to
the son in his will, which he had not done

Garland v Morris [2007] EWHC 2 (Ch)

Reasonable for the deceased to leave nothing to the adult daughter
Poor relationship

Re Collins [1990] Fam 56

No claim against biological parents in case of adopted children

Re Leach [1986] Ch 226 CA

wide interpretation of step-child
Applicant treated as a child of the family when an adult

Rees v Newbery and the Institute of Cancer Research [1998] 1 FLR 1041
Deceased had provided applicant with a flat at a low rent,
though there was no emotional relationship

Bouette v Rose [2000] 1 FLR 363

Mother was maintained by her disabled child
Daughter had been awarded a substantial sum as a result of her disability