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Marriage & Divorce

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  • In wardship proceedings, the mother alleged that she and the children (aged 8, 4 and 3) had been victims of transnational abandonment. This was denied by the father, whose case was that the parties had made a consensual decision to relocate as family to Pakistan. He contended that the courts of England and Wales did not have jurisdiction in respect of the children; alternatively, that they should not exercise any jurisdiction because welfare decisions could more conveniently be made in Pakistan. Circumstances meant that the case had to be adjourned, but Mr Richard Harrison QC, sitting as a deputy High Court judge, considered the situation as it stood to be one in which the children were likely to be suffering from emotional harm. It was not tolerable for them to continue to be separated from their parents. It was clear to him that the essence of the mother's case was likely to be correct. The removal of the children to Pakistan had been procured on the basis of a deception, and was thus in breach of the mother's rights of custody, and a wrongful removal for the purposes of Article 10 of Brussels IIa. Having been the primary carer throughout the children's lives, the mother was the person best placed to meet the children's emotional needs. He ordered their immediate return to this jurisdiction. Judgment, 25/09/2020, free
  • The Court of Appeal had decided that the daughter must be distanced entirely from a cult with which the mother was involved. The mother had said she would renounce the cult, speak to a therapist and consult a dietician in respect of the child, but the Court of Appeal had found that her undertakings wholly failed to acknowledge the change in approach required were she to maintain care of the child. The case had been remitted to the Family Division for further consideration. At this hearing, Williams J found that the mother's witness statement did not paint a persuasive picture of a significant change in attitude. There was almost no engagement with the harm caused to the child, the process leading to that harm, or the damaging nature of the beliefs and practices of the cult. Were the child to remain in the mother's care, the process of estrangement would continue and the child's relationship with the father would be terminated. The child would live with her father and spend such time with her mother as the father might agree in consultation with the independent social worker involved in the case. Judgment, 20/07/2020, free
  • An application brought by the applicant to rectify, as he saw it, a decree of divorce granted in 1997, in relation to a 1994 marriage in London. The hearing proceeded in the absence of the former wife, who had asserted that they were still married as a result of a prior 1993 ceremony involving the same couple in Madrid. Sir Andrew McFarlane, President of the Family Division, was satisfied that the earlier marriage had been a valid one. His order, made under FPR rule 4.1(6), would record that the marriage dissolved in 1997 was the true legal marriage between the couple, namely that celebrated in Madrid on 25 May 1993, and not the later English marriage which had no legal impact on their status. Judgment, 04/06/2020, free
  • The Attorney General appealed from a decision to pronounce a decree nisi of nullity following a marriage ceremony which the parties had known was of no legal effect. The petitioner and respondent had reached an agreed settlement, so arguments on matters of law were made on behalf of the first intervener, a petitioner in separate nullity proceedings. The issues were whether there could be ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of section 11 of the Matrimonial Causes Act 1973; and if there could be, whether this had been such a ceremony, currently described as a non-marriage, or whether instead, as Williams J had decided, it had created a void marriage. Sir Terence Etherton MR (the Master of the Rolls), King LJ DBE and Moylan LJ set aside the judge's order as there was, in this case, no ceremony in respect of which a decree of nullity could be granted pursuant to the provisions of section 11. The judge's approach was supported by neither the European Convention on Human Rights nor the United Nations Convention on the Rights of the Child 1990. Judgment, 28/05/2020, free
  • The husband alleged fraud and sought to set aside a decree absolute and a financial consent order, both from 2011, in proceedings involving what was described as "frankly shambolic and unacceptable case preparation", leading to the loss of a full court day. Mr Recorder Allen QC found as a fact that the husband had been unaware of the divorce and financial proceedings instigated by the wife. Although Mr Recorder Allen QC had made a finding of fraud, the divorce petition was voidable rather than void, and he declined to set it aside in this case. The financial consent order was set aside and the matter would be listed for a new directions hearing. Judgment, 19/03/2020, free

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