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Marriage & Divorce

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  • The former husband applied to set aside part of a consent order relating to maintenance payments. The former wife cross-appealed for enforcement of maintenance arrears. The husband claimed that the consent order had been fraudulently changed without his knowledge, and that his wife had sent emails in his name to the firm involved in drafting the consent order. In emails to her the husband had expressed his belief that the maintenance changes were a mere "paperwork exercise" to enable her to get a new mortgage. Moor J found that the expert handwriting evidence as to the signature on the consent order was of no assistance, but he was satisfied that the wife had perpetrated a fraud on the husband, and that she had sent fraudulent emails on his behalf. The relevant paragraph of the order was set aside, and replaced with a clean break order. The wife owed the husband £248,930 from the sale of the matrimonial home, to be paid within 28 days. Judgment, 11/12/2019, free
  • The father appealed against an order for the two children to be returned to Russia. Moylan LJ, Peter Jackson LJ and Arnold LJ decided that both the father's appeal regarding habitual residence and the mother's cross-appeal regarding repudiatory retention would be dismissed, but that the judge's order made under the inherent jurisdiction would be set aside. When the 1996 Hague Convention applied, recourse could only be had to the inherent jurisdiction if permitted by the code established by the Convention. Here, there was no gap in the scheme of the Convention to justify exercising the court's inherent powers. The right course was for the mother's application for enforcement of the Russian court's order to be determined as soon as possible. Judgment, 03/12/2019, free
  • The wife applied to strike out the husband's claim for damages in respect of deceit. A DNA test had revealed that he was not the biological father of their child. Two issues were before Cohen J: whether the tort of deceit could relate to paternity fraud between husband and wife, and, if it could, whether it could run as a separate cause of action in parallel with financial remedy proceedings, rather than being an abuse or obstruction of the court's process. As to the former, Cohen J's view was that the tort of deceit could exist between husband and wife in respect of intimate matters, but he did not need to make a concluded finding on this issue. By reference to CPR 3.4(2)(a) and (b) he found that the claim form and particulars of claim disclosed no reasonable grounds for bringing the claim, and were indeed an abuse of the court's process or otherwise likely to obstruct the just disposal of the proceedings. The claim was struck out. Judgment, 30/11/2019, free
  • An application was made for recognition of a 2009 marriage as valid. The applicant, born female, had lived as a man from 1990, but had not obtained a Gender Recognition Certificate once they became available in 2005, and hence was still legally female at the time of the marriage, when same sex marriage was not yet legal. This had caused problems with the Department of Work and Pensions regarding pension entitlement. Cobb J considered the case law and stated that, both now and at the time of the marriage in 2009, the applicant must be treated by the court as being legally a woman. The United Kingdom had not failed to provide a legal mechanism for the recognition of the relationship, since the couple could enter a civil partnership, marry as a same-sex couple, or marry as an opposite-sex couple after obtaining a gender recognition certificate. At the relevant time a marriage between two female partners was void at its inception and the court did not have the power to make the declaration sought. Judgment, 28/11/2019, free
  • The mother had been in Poland with the daughter for two years, after a wrongful retention. The Polish court had refused the father's application under the 1980 Hague Convention in view of allegations of sexual abuse made against the father and paternal grandfather. The father now applied for the daughter's return under Article 11(7) of Brussels II Revised. Mr Teertha Gupta QC, sitting as a deputy High Court judge, did not accept that the mother had been disenfranchised by the process. The question for him was whether it was in the child's best interests to return here, in order for a court to make enquiries and determinations about her best interests. The Guardian's position was that the child should be returned with immediate effect for assessment. Mr Teertha Gupta QC concluded that he had no alternative but to order the child's return. Judgment, 28/11/2019, free

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